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TMI Blog2012 (3) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the rate of 17.5% p.a. from the date of recovery Suit i.e. 20.06.1992 till 18.2.2003 and also further interest at the rate of 14% p.a. (simple mode) from 19.02.2003 till full recovery of the claim is allowed and also ₹ 15,000/towards cost of administrative charges. The Claim Petitions were filed by Respondent No. 1 (Original Claimant) against the borrower alleged guarantors, Respondent No. 12 Official Assignee, also made party, as Original Respondent No. 1 was declared insolvent. The proprietor expired long back. Respondent Nos. 3 to 7 are his Legal Heirs. The Petitioner in Arbitration Petition 767 of 2009 is original Respondent No. 8 and Arbitration Petition No. 677 of 2009 is by original Respondent No. 9. The other Respondents though served not present. 2. The Principal borrower submitted an application on 19 June 1989, for enhancement of Cash Credit Facility from `10 lacs to `15 lacs. The same was against the Security of Stock and Trade with 25% margin subject to hypothecation. The Application for Cash Credit Facility of `15 lacs was filed on 21 January 1991. The same was kept pending. Because of a considerable loss of more than `13 lacs, an application to the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were framed. Reply was also filed by the bank to the Petitioners application for amendment. The Arbitrator, has passed the undated award some time in the year 2009. The Petitioners, after receipt of the awards, filed Arbitration Petitions within time. 6. Undisputed question in the present matters is that though the application/claim was filed under the MCS Act, 1992, and by order dated 18 February 2003, in view of the provisions of MSCS Act, 2002, the Cooperative Court had returned the Plaint/claim for want of jurisdiction in the year 2000. The Arbitrator, in view of the MSCS Act, 2002, was appointed on the application filed by the bank on 28 June 2006, much after three years from the date of return of the claim Petitions. The learned Arbitrator, failed to deal with the aspect of limitation, specifically when there was a monetary claim raised by the bank. The specific reasons are necessary before awarding any monetary claim in this background. It goes to the root of the matter. The issues were specifically raised. The Arbitrator ought not to have overlooked it. 7. I have already observed in Sealand Shipping and Export Pvt. Ltd. Vs. Kinship Services (India) Pvt. Ltd. 2011(5) Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners even for this issue. The learned Arbitrator, again failed to provide the detailed reasoning in support and/or to oppose the same objection so raised. 10. The Single Judge of this Court in Abhyudaya Cooperative Bank Ltd. Vs. State of Maharashtra & Ors. 2009(4) Mh. L.J. 929 had dealt with the similar situation by referring to the Division Bench/decision of this Court apart from other judgments. The Arbitrator in the given situation, though wanted to rely upon the Judgment of the Division Bench to continue with the existing Arbitration proceedings, in that case also the reasons should have been provided. 11. Another aspect in the matter was that, though various applications were moved by the Respondent parties, the same were not considered at the appropriate time in accordance with law. The proper decision is required to be taken at the relevant time, specifically when the Respondent parties have raised various objections including of fraud, representations. No opportunities were given as such related aspect also goes to the root of the merit of the matter. The learned Arbitrator though dealt with those aspects on merit against the Petitioners, yet the issue of jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive issues though it is not mandatory. The issues are helpful for the proper and effective trial. (xi) The Arbitrator, after hearing the parties, may finalize the issues. List of the witnesses Call for the witness (xii) The parties, if they want to examine witness, may file a list of witnesses. If necessary, seek order from the Court under Section 27 of the Arbitration Act, to call necessary witness with or without documents. The evidence in chief through affidavits inspection cross examination reexamination, if necessary, including Video conference/process. (xiii) The Arbitrator, if decided by the parties, direct the claimant to file affidavit in support of the claims and permit the Respondents to cross examine and also permit the Respondent to file affidavit in chief in support of their defense; and permit cross examination to the other side and/or follow such other procedure. This can be done, if agreed, through video conferences. Expert report/witness (xiv) The Arbitrator may permit the parties to call an expert witness and/or report or by consent call for expert evidence/report. Mediation and conciliation (xv) The Arbitrator by consent of the parties, may re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, precedent, obiter dicta, ratio decidendi, Estoppel, acquiescence, waiver and res judicata, public policy, natural justice, fairplay and equity. The communication/service of the award/interim or final. (xxiv)The Arbitrator, if other side is absent, needs to send/serve a copy of the signed arbitral award as per the law so that the aggrieved party may take appropriate steps to challenge the same within limitation and as it is also enforceable, executable like decree. (xxv) The Arbitrator, if application is moved, may correct an error or clarify the award, as contemplated under Section 33 of the Arbitration Act. 13. The relevant factor here again is that the aggrieved parties normally select their own procedure and Arbitrator/Judge to settle their disputes through the Arbitration proceedings. But, in view of specific provisions of MSCS Act2002, the parties have no choice to select their own Arbitrator to decide the dispute between the parties. Therefore, such Arbitrator appointed under any act just cannot claim that the provisions of CPC and/or Evidence Act are not applicable. The initiation of Arbitration proceedings referring to the Arbitration Act in my view, is nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims Petitions against the borrower and/or the guarantors. 16. As noted, the learned Arbitrator has dealt with the only contention raised by the Petitioners borrower on merits of the date but failed to take note of the fact that though borrower served, as recorded, but not represented, the documents so referred and rely, certainly revolved around the case/claim of the main borrower. Therefore, while deciding the total claim and granting the award against all the parties, the bank's documents ought to have been referred for the case and/or the documents of the borrowers also. 17. The aspect of removal of financial assistance and/or fresh application is also relevant factor, which ought to have been dealt with from the point of view of the Petitioners borrowers. Any change in banking documents, just cannot be made without consent of all the parties. The borrower's changed application, cannot be taken as a foundation to impose liability on the guarantors, as their consent, as well as, signatures were also necessary. It is not the case of the claimant bank that they have signed theses documents twice. 18. The contention of the learned counsel appearing for the bank is that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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