Ahcom Sarl rep. by its Authorized Signatory S. Anilkumar v. Peniel Cashew Company rep. by its Proprietor Job G. Oommen
2013-11-04
N.K.BALAKRISHNAN
body2013
DigiLaw.ai
Judgment : 1. This petition is filed by the petitioner in an O.P. filed before the District Court under Sec. 9 of the Arbitration and Conciliation Act, 1996. That petition was moved for attachment of certain properties. The respondent herein entered appearance in that petition and sought time for filing objection. 2. A petition was filed before this Court as O.P. (C) No. 222/2013 and in that petition the respondent made an undertaking that they will not transfer or encumber the properties until the disposal of the petition pending in the Court below. That undertaking was accepted and recorded by this Court in O.P. (C) 222/2013. While disposing of that O.P. this Court directed the parties to appear through their counsel before the Court below on 15-2-2013. On 14-2-2013, the respondent herein filed I.A. 155/2013 alleging that the authorised signatory of the petitioner is an imposter and that no such person is residing in the said address and he requested the court to issue a direction to the person who appeared for the petitioner as the authorised representative in Court. Ext. P4 is that order which reads:- "The respondent represented. The authorised representative of the petitioner Mr.Anilkumar is directed to appear before the court for hearing to 12-04-2013". No reason has been stated in this order. Hence, this one line order passed by the court below cannot be treated as an order in the eye of law, the learned counsel for the petitioner submits. The order is totally bereft of reasoning. 3. The learned counsel for the petitioner submits that the court below did not advert to the fact that earlier the petitioner herein had moved this Court by filing O.P.(C) 222/2013 for getting an order of attachment and in that petition the respondent herein made an undertaking that they will not transfer or encumber the properties mentioned in the petition. That undertaking was accepted and recorded by this Court. Ext.P1 is the copy of that judgment in O.P. (C) 222/2013. When that O.P.(C) was pending before this Court the respondent had no contention that the authorised signatory Mr.Anilkumar.S. who represented the petitioner/Company is not an authorised representative or that he was an imposter. 4. A contention was raised by the respondent that no such person is residing in the address shown in the petition.
When that O.P.(C) was pending before this Court the respondent had no contention that the authorised signatory Mr.Anilkumar.S. who represented the petitioner/Company is not an authorised representative or that he was an imposter. 4. A contention was raised by the respondent that no such person is residing in the address shown in the petition. Ext.P2 is the petition filed by the respondent before the Court below seeking direction to the signatory-Mr.Anilkumar to be present before Court with identity proof for cross--examination. A detailed counter affidavit was filed by the respondent before the court below. The fact that Mr. Anilkumar.S. had represented the petitioner herein, in other matters and that he was also representing other foreign companies as the authorized representative were stated in detailed in the counter affidavit filed by him. 5. It was contended inter alia that in the cause title to the Arbitration O.P. 323/2012 in which the interim order of attachment was sought, in the address instead of "Giri Nagar" it was shown as "Gandhi Nagar". It was stated to be an inadvertent mistake. It was pointed out that in other places in the affidavit filed in that petition it was correctly shown as "Giri Nagar". It was also pointed out that in so many other petitions filed by him before the District Court and also before this Court his place of address was shown as Giri Nagar. Therefore, it was clearly an inadvertent typographical error which could not have been blown up out of proportion to contend that there is no such person as Anilkumar, residing in the address furnished in the Arbitration O.P. 6. In spite of the detailed Explanations and other factors stated in the counter affidavit the learned Addl. District Judge did not state anything about those aspects in the impugned order (Ext. P4) but one lone order as quoted above was passed which itself is sufficient to hold that the impugned order is liable to be set aside, the learned counsel for the petitioner submits. 7. The learned counsel for the petitioner has also produced before me the copies of the judgments and orders passed by this Court in similar matters where the petitioner appeared as the authorised signatory of other foreign companies as well. It is also contended that till now there was no complaint whatsoever from any corner that Anil Kumar.
7. The learned counsel for the petitioner has also produced before me the copies of the judgments and orders passed by this Court in similar matters where the petitioner appeared as the authorised signatory of other foreign companies as well. It is also contended that till now there was no complaint whatsoever from any corner that Anil Kumar. S. who is the authorised signatory is not an authorised representative or that he was only an imposter or that there was any foul play in it. The power- of-attorney which was duly notorised was produced before the court below along with the record to show that Anil Kumar S. who signed in the vakalath was actually the authorised signatory/authorised representative. Those aspects were also not considered by the trial Court. Simply because respondent filed a petition that the authorised representative should be directed to be present before court for cross-examination, the court below should not have passed the impugned order Ext.P4, the learned counsel for the petitioner further submits. 8. It is pointed out that an award had already been passed and that the award had to be executed. This is only an attempt to delay the proceedings under one pretext or other. The Arbitration O.P. (Petition under Sec. 9 of the Act) was filed before the District Court in November, 2012. 9. The learned counsel for the petitioner submits that the jurisdiction under Sec. 9 of the Arbitration & Conciliation Act is confined only to granting interim measures of protection, therefore, the court cannot, in an application under Sec. 9 afford the luxury of a trial to arrive at a finding on a disputed question of fact relating to jurisdiction. The learned counsel for the petitioner has relied upon the Supreme court decision in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd. - (2007) 7 SCC 125 where it was held : "The power and jurisdiction of courts in arbitral matters has been the subject of much discussion. The relationship between courts and Arbitral Tribunals have been said to swing between forced cohabitation and true partnership. The process of arbitration is dependent on the underlying support of the courts who alone have the power to rescue the system when one party seeks to sabotage it". 10.
The relationship between courts and Arbitral Tribunals have been said to swing between forced cohabitation and true partnership. The process of arbitration is dependent on the underlying support of the courts who alone have the power to rescue the system when one party seeks to sabotage it". 10. It is further argued that the court does not in a petition under Sec. 9 decide on the merits of the case or the rights of the parties but considers only the question of existence of an arbitration clause and the necessity of taking interim measures for issuing necessary directions or orders. The learned counsel for the respondents would submit that if the authorised signatory is an imposter or is not a real person who was actually authorised by the Company then, if ultimately the Company again approaches the authorities under the Arbitration and Conciliation Act and to execute the award, then the respondent would be put to irreparable loss and that was the reason why the respondent wanted the authorized signatory to appear in Court with identity proof and to subject him to cross-examination. I find no merit in that contention. The original notorised power-of attorney was produced before Court and that was accepted by the court below. When the O.P.(C) 222/2013 was pending before this Court, there was no case for the respondent that the petitioner was not properly represented or that Anil Kumar.S. who appeared as the authorised signatory of the Company was not actually an authorised person. 11. The learned counsel for the petitioner has also relied upon the decision of the Hon'ble Supreme Court in Ethiopian Airlines v. STIC Travels (P) Ltd. - (2001) 7 SCC 454 where it was held: "The laudable objectives and great expectations, in spite of best efforts have never reached the desired results. To reach it, time and again comprehensive review of the Arbitration Act through amendments and re-enactment has been made. Every word of any statute having stretchable meaning gives fertility to the Bar to interpret it such, as to suit the exigency of his client by finding loopholes in a statute in spite of the best attempt by the legislature to conclude the disputes at the earliest, by raising various objections thus frustrating its very objectives.
Every word of any statute having stretchable meaning gives fertility to the Bar to interpret it such, as to suit the exigency of his client by finding loopholes in a statute in spite of the best attempt by the legislature to conclude the disputes at the earliest, by raising various objections thus frustrating its very objectives. It is here courts have to play an important role of taking recourse to such interpretation which sub-serve the objective and defeat any attempt to flout it". 12. Relying on the aforesaid decision it is vehemently argued by the learned counsel for the petitioner that the endeavour of the court must be to take all necessary precautions to see that any attempt to defeat the laudable object of the Act is not allowed to be perpetrated. 13. A Company can sue and be sued in its own name. A company is, no doubt, a juristic entity. A reading of Order VI Rule 14 and Order XXIX Rule 1 of C.P.C. would make it clear that in a suit by or against a Corporation, Secretary or any director or any other Principal Officer of the Corporation who is able to depose to the facts of the case might sign and verify on behalf of the Company. 14. It was held in the decision cited supra that even in the absence of any formal letter of authority or power-of-attorney having been executed a person referred to in Rule 1 of Order XXIX can, by virtue of the office which he holds, sign and verify the pleading on behalf of the Corporation. But the learned counsel for the respondent would submit that all the decisions referred to by the learned counsel for the petitioner are pertaining to the arbitration agreements relating to firms or Companies registered in India and so, those decisions cannot be made applicable to the facts of this Case. But so far as Section 9 of the Arbitration and Conciliation Act is concerned it makes no difference whether the petitioner or respondent is a foreign Company. There was no contention before the court below or before this Court now or when O.P. (C ) 222/2013 was pending that the arbitral agreement is void or illegal or that the District Court, Kollam had no jurisdiction to entertain the petition.
There was no contention before the court below or before this Court now or when O.P. (C ) 222/2013 was pending that the arbitral agreement is void or illegal or that the District Court, Kollam had no jurisdiction to entertain the petition. Only a belated objection was raised by the respondent pertaining to the authority of the authorised signatory Mr. Anil Kumar.S. who signed as the authorised representative of the petitioner/Company. 15. The learned counsel for the respondent has vehemently argued that the decision of the Board of Directors, if any, authorising Mr.Anil Kumar.S. as the authorised representative to represent the petitioner/Company was not produced before Court and so it cannot be said that he is actually the authorized representative. 16. The decision in State Bank of Travancore v. M/s. Kingston Computers (I) Pvt. Ltd. -(2011) 11 SCC 524 has been relied upon in this connection. In that case the respondent therein had not produced any evidence to prove that Sri.Ashok K.Shukla was appointed as a Director of the Company and a resolution was passed by the Board of Directors of the Company to file suit against the appellant and authorised Sri. Ashok K.Shukla to do so. The letter of authority issued by Sri. Raj K. Shukla who described himself as a Chief Executive officer of the Company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating powers to Shri. Raj K. Shukla to authorise another person to file suit on behalf of the Company. The facts of that case are entirely different . Petition under Sec. 9 of the Act was filed by Mr. Anil Kumar.S. who described himself as the authorised signatory in support whereof he had produced original notorised power-of-attorney before the trial Court. That fact was not denied by the respondents. Contention was raised on the premise that his place of residence was incorrectly shown as "Gandhi Nagar" instead of "Giri Nagar". It was well explained in the detailed counter affidavit but the court below omitted to take note of that fact. The learned counsel for the petitioner has pointed out that Execution Petition has already been filed consequent to the award passed against the respondent herein and the present attempt made by the respondent is only to protract the proceeding under one pretext or another. 17.
The learned counsel for the petitioner has pointed out that Execution Petition has already been filed consequent to the award passed against the respondent herein and the present attempt made by the respondent is only to protract the proceeding under one pretext or another. 17. The learned counsel for the petitioner has also relied upon the Supreme Court decision in Maya Devi v. Raj Kumari Batra and Others -(2010) 9 SCC 486 in support of his submission that an order can be passed only after due and proper application of mind and that application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Reasoning is the hallmark of every judgment. In the light of what have been stated above, I find that the impugned order cannot be sustained. 18. In the result, this O.P. is allowed. Ext. P4 order dated 1-4-2013 is set aside. But if in the course of enquiry, the Court entertains any doubt about any such document produced by Sri.Anil Kumar.S. (the authorised representative) the Court can direct production of any other document to satisfy the conscience of the Court. Dated this the 4th day of November, 2013.