Indiabulls Housing Finance Ltd. v. Sagar Vilas Dhanawade and Anr.

1. The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the A&C Act’) seeks appointment of a Sole Arbitrator to adjudicate the disputes between the parties.

SACHIN DATTA, J. (ORAL)

2. The disputes between the parties have arisen in context of a Loan Agreement dated 31.03.2017 (hereinafter “the Agreement”) entered into between the petitioner and the respondents under which an amount of Rs.21,00,000/- was given as loan against mortgaged property bearing Flat No. 404, 4th

3. It is submitted that the respondents started defaulting in the EMI and consequently, the petitioner issued a notice dated 22.11.2019 under Section 13(2) of the SARFAESI Act, 2002 for repayment of the outstanding amount. It is stated that the mortgaged property was auctioned for a sum of Rs.17,20,000/- for realising the outstanding loan amount. Further, upon floor wing-D, Shreeji Garden, Gut No. 111 Valivali Chowk, Barvi Dam Road, Badlapur- W, Thane- 421503, Maharashtra. adjusting the amount recovered by way of auctioning the mortgaged property, a sum of Rs.15,77,567/- is stated to be unrecovered/ unpaid as on 20.07.2023. The disputes sought to be raised by the petitioner are with regard to this unrecovered/ unpaid amount.

4. The Agreement between the parties contains an arbitration clause as under:-

5. None has appeared for the respondents in these proceedings. An affidavit of service was filed by the petitioner on 03.09.2024 wherein it was stated that the petitioner has attempted to effect service upon the respondents through speed post and courier at the addresses of the respondents mentioned in the agreement.

6. The courier, which is stated to have been addressed to the respondent no.1, is stated to have been delivered. However, the courier addressed to respondent no.2 returned with remarks ‘returned to shipper’. The respondents, could not be served through speed post, as the same was returned with endorsement “item returned unclaimed”. However, it is stated in the said affidavit, that the entire paper book has also been served to the respondents through email i.e. sagdhanawade2014@gmail.com. Learned counsel for the petitioner submits that the said email address was duly mentioned by the respondent in the Agreement. Further, he submits that the respondents have also been served through Whatsapp. Vide order dated 26.09.2024, an application under Order V Rule 20 of the CPC, 1908, filed by the petitioner, for substituted service, was allowed by the learned Joint have been served through publication.

7. In the aforesaid circumstances, the present petition has been taken up for hearing and disposal, despite non-appearance of the respondents.

8. Since the existence of the arbitration agreement is evident from a perusal of the Agreement, there is no impediment to constituting an Arbitral Tribunal to adjudicate the disputes between the parties. Further, in terms of the judgment of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd, (2020) 20 SCC 760, TRF Limited v. Energo Engineering Projects Ltd, (2017) 8 SCC 377, Bharat Broadband Network Limited v. United Telecoms Limited., 2019 SCC OnLine SC 547, it is incumbent upon this Court to appoint an independent Sole Arbitrator to adjudicate the disputes between the parties.

9. Accordingly, Ms. Mishika Bajpai, Advocate (Mob. No.: +91

9811840277) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.

10. The respondents shall be at liberty to raise preliminary objections as regards arbitrability/jurisdiction, if any, which shall be decided by the arbitrator, in accordance with law.

11. The learned Sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties, requisite disclosure as required under Section 12 of the A&C Act.

12. The learned Sole Arbitrator shall be entitled to fee in accordance with the IVth