GENIE INFO SOLUTIONS LLP v. BECKTON DICKNISON INDIA PVT LTD
Delhi High Court·06 Dec 2022·2022:DHC:5373
Navin Chawla
O.M.P. (COMM) 483/2022
2022:DHC:5373
civilpetition_dismissed
AI Summary
The Delhi High Court dismissed the petition challenging the Arbitral Award, holding that the Court cannot re-appreciate evidence and the petitioner failed to prove its claim with cogent evidence.
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Neutral Citation Number 2022/DHC/005373
O.M.P. (COMM) 483/2022 HIGH COURT OF DELHI Date of Decision: 6th December, 2022
BECKTON DICKNISON INDIA PVT LTD ..... Respondent Through: Mr.Rajshekhar Rao, Sr. Adv. with Mr.Jafar Alam, Ms.Shivani Khandekar, Mr.Ishan Bisht, Advs
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (Oral)
I.A.20540/2022(Exemption)
JUDGMENT
1. Allowed, subject to all just exceptions. I.A.20541/2022
2. For the reasons stated in the application, the delay of 70 days in re-filing the petition is condoned.
3. The application stands disposed of. I.A.20539/2022
4. For the reasons stated in the application, the delay of 07 days in filing the present petition is condoned.
5. The application stands disposed of.
6. This petition has been filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (in short, ‘the Act’), challenging the Arbitral Award dated 06.06.2022 passed by the learned Sole Arbitrator, to the limited extent that it rejected the claim of Rs.42,05,273/- (Rupees Forty-Two Lakh Five Thousand Two Hundred and Seventy-Three only) of the petitioner herein.
7. The learned Sole Arbitrator has also rejected another claim of the petitioner for a sum of Rs.2,75,11,967/-, observing that the same was beyond the scope of the Arbitration Agreement. The petitioner does not challenge the said finding in the present petition.
8. As far as the challenge made by the petitioner to the impugned Arbitral Award is concerned, the learned counsel for the petitioner submits that the respondent had also raised their counter-claim of Rs.89,18,350/- (Rupees Eighty-Nine Lakh Eighteen Thousand Three Hundred and Fifty only) for the same contract and for the same services being rendered by the petitioner. The learned Sole Arbitrator, however, rejected the counter-claim, observing that the respondent had failed to lead evidence to show that there was any dispute with respect to the invoices raised by the petitioner or that the payment was directly made by the petitioner to the Strategic Alliance Management Services (in short, ‘SAMS’). He submits that the learned Sole Arbitrator, having reached the above conclusion, clearly erred in rejecting the claim of the petitioner to the extent of the above-mentioned amount stating that the petitioner had to prove its claim beyond reasonable doubt. He submits that in this manner, an incorrect burden of proof has been cast on the petitioner. He further submits that it was for the respondent to disprove that the petitioner had not rendered the services for which the claim was raised and that the services were received by the respondent through any third party. The respondent had not led any evidence in this regard and, therefore, in the submission of the learned counsel for the petitioner, claim has been wrongly rejected by the learned Sole Arbitrator. He submits that though the Agreement was on a non-exclusive basis, the respondent had not shown that the services were rendered by any third party.
9. On the other hand, the learned senior counsel for the respondent submits that the finding of the learned Sole Arbitrator is on the appreciation of evidence led before him and this Court cannot act as an Appellate Court against the Arbitral Award. He further submits that the Agreement in question appointed the petitioner as a Commission Agent on a non-exclusive basis and permitted the respondent to even do away with the consulting agent. It was therefore, not for the respondent to show that the consulting service of third party was availed by the respondent; it was for the petitioner to prove that any such consulting services were indeed rendered by the petitioner, which, the petitioner failed to prove.
10. I have considered the submissions made by the learned counsels for the parties.
11. The learned sole Arbitrator, while dismissing the claim of the petitioner, has observed as under:
“43. Now so far as the next claim of the Claimant for payment of an amount of Rs.42,05,273/ - is concerned, the same was
submitted on 28.08.2019, but in respect of supplies allegedly made during the currency of the agreement. This is an accepted position by both parties. Therefore, we are required to discuss and analyse the claim on merit. Since this claim is made by the claimant it is for the Claimant to prove that in fact such supplies were made by the Claimant during the validity and currency of the agreement and that there are strong and cogent materials and evidence on record in support to justify the claim.
44. The specific case of the Respondent that no evidence at all, not to speak of cogent and reliable evidence has been led and placed on record by the Claimant in support of this claim. It is needless to state that, in order to prove the claim, the Claimant is required to prove the claim beyond any reasonable doubt by leading cogent and strong evidence. In support of this claim, the Claimant has relied upon the invoice dated 28.08.2019 along with the contents of an exhaustive and detailed excel draft allegedly forwarded by the Respondent itself through an email. The contention of the Claimant is that initially the said excel draft was sent by the Respondent on 10.08.2019 and then followed by a revised one on 28.08.2019 for the period of work up to July 2018. This claim is therefore within the validity and currency of the agreement entered into between the parties, for the Addendum extended the currency of the agreement up to 30.09.2018.
45. Although the claim is within the currency of the agreement, but the merit and strength of the same are required to be proved through cogent and reliable evidence. What is relied upon by the Claimant in support of the said claim is the aforesaid excel statement or sale report allegedly sent by the Respondent through an email. This stand of the Claimant is refuted by the Respondent saying that the Respondent had or has not forwarded any such document to the Claimant. The specific case of the Claimant is that the same was sent by email but the said email has not been placed on record by the Claimant, to prove and establish its case. The email if it was really and actually sent, would have been in the custody and possession of the Claimant. If such document was really and actually available with the Claimant, the same should have been produced before this Tribunal but still the same was not produced. The Claimant has withheld the best evidence available with him. Even nothing is shown and no document has been produced to show that it was sent through an email.
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46. So far the excel draft which is annexed to the invoice is concerned and upon which heavy reliance is placed by the learned Counsel for the Claimant, it is not clear as to who has prepared the said excel draft and who is the author of the same and also when was it prepared and what is the actual source of the report. It was required for the Claimant to prove the contents in accordance with the law. In absence of such definite and specific evidence being led by the Claimant, no reliance could be placed on such document particularly when the Respondent has specifically denied the existence of any such document and also specifically stated that it did not send any such document to the Claimant. In addition, the Claimant in support of the said claim has relied upon WhatsApp messages as contained in Annexure-R[1] collectively appearing on page 200 of the Convenience Volume. Heavy reliance is placed by the learned Counsel appearing for the Claimant on the message dated 10.02.2020 which was allegedly sent to the Claimant by Mr. Pawan Mocherla at 06.57 PM.
47. I have perused the said WhatsApp message which states as follows, "Rathore Saab, as I discussed with you, the process is on. Awaiting approval from HQ. Thank you" This message is as vague as anything and in no manner supports the case of the Claimant. It is not in doubt that Rathore Saab mentioned in this message was CW[1], Dr. AS Rathore. However, what was discussed by Rathore Saab with the sender is not clear from the message. Nothing concrete was also stated by CW[1] in his evidence. It is also unclear as to what process is on and what approval is to come from the Headquarters. The nature of the same is not stated anywhere. This does not in any manner, in my considered opinion, establish any liability of the Respondent to pay the amount claimed. Nowhere in this message reference is made to the invoice or to the amount claimed in the invoice and therefore, this, in my opinion, does not amount to and lend support as any cogent and reliable evidence in support of the claim.
48. The next message which was relied upon by the learned Counsel appearing for the Claimant is to the following effect. "An amount of Rs. 9,41, 98, 119 is being transferred today by RTGS. Pl check if any discrepancy and let me know. " This message appears, to have been sent by the Claimant to Respondent No.1 Mr. Puneet Talwar. This message is also as vague as anything and does not, in any manner, support the claim of the Claimant The figure mentioned in this message does not tally with the claim made as the amount of Rs.9,41,98,119 as mentioned in this message and stated to have been transferred by RTGS on that day without giving any details of the account to which the money is being transferred. This message therefore also does not help in any manner or substantiate the claim of the Claimant. The other WhatsApp messages and correspondences relied upon by the Claimant also do not establish and justify the Claim.
49. There is no other evidence produced by the Claimant providing any basis for establishing or proving the claim made. Therefore, this claim of the Claimant is totally unsubstantiated and without any basis and found to be not proved. There could have been definite and concrete evidence available in the form of letters/ communications by the Claimant to show and prove that the claimant has in fact rendered help and assistance of different nature which are set out in Annexure- R[1] of the agreement. The Claimant has also not placed on record any voucher or receipt to prove that any supply has been made by the Claimant in support of such claims.
50. The claims of the Claimant for payment of the amount of Rs.42,05,273/ - is therefore found to be baseless and invalid and this claim is rejected. Another claim made by the Claimant on account of Mental harassment is not supported by any specific evidence. This relief is also not a part of the specific relief made in the claim Petition. This said claim is also found to be without any evidence and therefore without merit and hence rejected. Since the claim of Rs.2,75, 11,967 / - is found to be not a subject matter covered by the Arbitration Clause, the said claim is held to be not a dispute which could be a subject matter of this proceedings. Consequently, there is no question of payment of any interest or costs in favour of the Claimant which claims are also hereby rejected.”
12. A reading of the above would clearly show that the learned Sole Arbitrator has rejected the claim of the petitioner appreciating the evidence led before him. This Court in exercise of its power under Section 34 of the Act does not act as an Appellate Authority to the Arbitrator. The scope of jurisdiction of this Court is highly limited, as has been repeatedly explained by the Supreme Court in various judgments, which need not be re-emphasized herein. Applying the strict rules for interference, I find no reason to interfere with the Arbitral Award. What the petitioner wants this court to do is to enter into a re-appreciation of evidence, which arena is clearly prohibited for this Court.
13. As far as the rejection of the counter claim of the respondent is concerned, the learned Sole Arbitrator has rightly placed the burden of proof of the counter claim on the respondent and found that the respondent has, having made the payment, failed to prove its counter claim. Therefore, the claim and the counter claim have been decided by the learned Arbitrator on the respective evidences led by the parties. Merely because the counter claim is rejected, does not, as a necessary corollary, imply that the claim of the petitioner has to be accepted; as they were based on different invoices.
14. In view of the above, I find no merit in the present petition. The same is dismissed.
NAVIN CHAWLA, J DECEMBER 6, 2022
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