High Court of KeralaDivision BenchDismissed

Kotak Mahindra Prime Ltd. v. Sudhakaran P.S. and Subin Sudhakaran

Case / Petition Number:ARB.A.No.34 of 2013

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. M. Joseph
  • A. Hariprasad
Judgment Date
2013-10-28
Court Decision / Holding
The appeal is dismissed. The Kerala High Court affirmed the District Court’s view that the documents produced were photocopies not certified as required, and that the arbitration agreement was not proven in the manner mandated by Rule 4(d) of the Kerala Rules and Section 9 of the Act. Consequently, interim relief under Section 9 was not warranted. The Amicus Curiae assistance was acknowledged.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Kotak Mahindra Prime Ltd.

Respondents

  • Sudhakaran P.S.
  • Subin Sudhakaran

Legal Representation & Advocates

Counsels for Petitioners

  • • Nagarajan Narayanan
  • • Saijo Hassan
  • • Benoj C Augustine
  • • Sebin Thomas
  • • I.J. Augustine
  • • P. Salam
  • • Zeba J. Jawahar

Counsels for Respondents

  • • Syamkumar (Amicus Curiae)

Case Synopsis & Summary

This is an Arbitration Appeal arising from an order in Arbitration O.P. No. 628/2012 before the District Court, Ernakulam, under Section 9 of the Arbitration and Conciliation Act, seeking appointment of a receiver or Advocate Commissioner to take possession of a Skoda Octavia car financed by Kotak Mahindra Prime Ltd. The borrower(s) defaulted on instalments, leaving a substantial outstanding sum as of 27.06.2012. The District Judge dismissed the original petition, rejecting interim relief. The appellant contends there is a valid arbitration agreement evidenced by the loan documents, notably Ext. A2, which contains an arbitration clause; the documents were only photocopies and not certified, and the original agreement was not produced. The matter turns on whether a copy certified by an Advocate or Notary suffices under Rule 4(d) of the Kerala Arbitration Rules, 1997 to support an application under Section 9. The court below held that the documents were inadmissible photocopies and that no valid arbitration agreement was proved; the appellants argued that a true copy would suffice and relied on a Supreme Court decision in S.N. Prasad v. Monnet Finance Ltd. The Kerala High Court, after considering the evidence and the amicus guidance, dismissed the appeal, affirming the lower court’s reasoning and refusing interim relief. The appellant’s request for possession of the vehicle remains unresolved pending other remedies.

Provisions of Law Cited

Arbitration and Conciliation Act, 1996 – Section 9Kerala Arbitration and Conciliation (Court) Rules, 1997 – Rule 4(d)Arbitration and Conciliation Act, 1996 – Section 7(4)(c)Indian Companies Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submitted that there is a binding arbitration agreement evidenced by the loan agreement Ext. A2 containing an arbitration clause, and that a true copy certified by an Advocate or Notary should suffice under Rule 4(d) of the Kerala Rules. The petition under Section 9 was maintainable to secure interim relief, including appointment of a receiver, pending arbitration. The appellant contended that the lower court erred in dismissing the O.P. on the basis that photocopies were inadmissible and that there was no certified arbitration agreement; reliance was placed on S.N. Prasad v. Monnet Finance Ltd. to interpret the existence of an arbitration agreement in writing and the admissibility of incomplete documentary proof.

Contentions of Respondents

The respondents contended that the documents relied upon by the appellant were photocopies and not certified as required by Rule 4(d). They argued that the arbitration agreement did not prove its existence or is adequately evidenced. The respondents noted that the district court’s finding that the documents were photocopies and not certified was a valid basis to dismiss the application under Section 9. The respondents relied on the lower court’s analysis and challenged the sufficiency of Ext. A2 as proof of an arbitration agreement.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
S.N. Prasad v. Monnet Finance Ltd.[(2011)1 SCC 320]PositiveCited to discuss the existence of an arbitration agreement in writing and the criteria under which it can be inferred; used to support the requirement that the arbitration agreement be proven in a form compliant with statutory/ rule-based admissibility.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935 Arb.A.No. 34 of 2013 ------------------------ AGAINST THE ORDER IN OPARB 628/2012 of VTH ADDL.DISTRICT COURT, ERNAKULAM DATED 21-11-2012 ## APPELLANT/PETITIONER: KOTAK MAHINDRA PRIME LTD. HAVING ITS REGISTERED OFFICE AT 36-38A NARIMAN BHAVAN, 227, NARIMAN POINT MUMBAI AND HAVING ITS BRANCH OFFICE AT 4TH FLOOR THADIKKARAN CENTRE, PALARIVATTOM COCHIN-682025 REPRESENTED BY ITS AUTHORISED SIGNATORY JOMET K.J. AGED 29 YEARS, S/O.K.J.JOSEPH. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS SRI.I.J.AUGUSTINE SRI.P.SALAM SMT.ZEBA JAWAHAR ## RESPONDENTS/RESPONDENTS: ## 1. SUDHAKARAN.P.S. H.NO.31/1858, SAHAKARANA ROAD, PONNURUNNY VYTTILA P.O., ERNAKULAM-682019. ## 2. SUBIN SUDHAKARAN PUTHENVEETTIL HOUSE, H.NO.31/1205, SAHAKARANA ROAD VYTTILA P.O., ERNAKULAM-682019. R1 BY ADV. ADV.SRI.SYAMKUMAR-AMICUS CURIAE (B/O). THIS ARBITRATION APPEALS HAVING COME UP FOR ADMISSION ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX: ## APPELLANTS' ANNEXURES: ANNEXURE A1: ORDER IN ARB.O.P.628/2012 OF DISTRICT COURT, ERNAKULAM DATED 21.11.2012. ks. ## TRUE COPY P.S. TO JUDGE ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** --------------------------------------------ARBITRATION APPEAL NO. 34 OF 2013 ----------------------------------------Dated this the 28th day of October , 2013 J U D G M E N T K.M.Joseph, J. The appellant is the petitioner in Arbitration O.P.No.628/2012 filed under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as 'the Act') against the respondent seeking appointment of a receiver or an Advocate Commissioner to take possession of the vehicle and entrust the same with the appellant. 2. Briefly put, the facts of the case are as follows: The case of the appellant is that the first respondent obtained vehicle for a loan of Rs.4,00,000/- from the appellant to purchase of Skoda Octavia Rider bearing Registration No. KL 07/BA - 5577 and the 2nd respondent ARB.APPEAL NO.34/2013 2 is the co-borrower in the said loan transaction vide loan agreement No.6418701 dated 27.10.2010. The loan amount was payable in 36 equal monthly instalments of Rs.14,140/- each. The respondents committed default in the timely payment of the instalments and as a result the balance amount payable as on 27.06.2012 was Rs.6,098,108/-. The learned District Judge after hearing both parties passed a final order dated 21.11.2012 dismissing the aforesaid O.P.(Arb). The prayers for interim reliefs were rejected on the factual and legal position. 3. The respondent remains ex parte. There is no oral evidence. Documents were marked as Exts.A1 to A4. The following is the reasoning of the court below in the course of dismissing the O.P. : "7. Petitioner is a company registered under the Indian Companies Act represented by its authorized signatory. Ext.A1 is the resolution of the board of directors authorizing 3 ARB.APPEAL NO.34/2013 the petitioner to represent the company. Ext.A2 is only photocopy of loan agreement. Clause 14 contains an agreement for arbitration by which parties to Ext.A2 agreed to refer disputes and difference between them for arbitration. By Ext.A2 respondents agreed to repay the hire purchase amount in 36 monthly instalments. Ext.A4 is photo copy of the statement of account. Nobody seen attested of certified A4. All the documents produced by the petitioner is only photo copy and inadmissible in evidence. Therefore, I am of the view that petitioner failed to prove arbitration agreement and the amount due. Hence, they are not entitled to get any interim measure u/s.9 of Arbitration & Conciliation Act,1996.” 4. We heard the learned counsel for the appellant and the learned Amicus Curiae, Shri C.R.Syam Kumar. 5. The prayer in the application is for injunction to restrain the respondents from alienating the property. The issue on which we thought we should receive the assistance of the Amicus Curiae was whether it is sufficient to produce a copy of the arbitration agreement, whether it is indispensable to maintain the ARB.APPEAL NO.34/2013 4 petition under Section 9 of the Act that the original agreement be produced and if a copy is permissible, it should be a true copy either attested by an Advocate or a Notary Public. 6. Learned Amicus Curiae drew our attention to Rule 4 (d)of the Kerala Arbitration and Conciliation (Court) Rules, 1997(hereinafter referred to as 'Rules') which reads as follows: “4. Title of Proceedings.- xx (a) xx xx (b)xx xx (c)xx (d)Every application to the Court under the Act shall be accompanied by the Arbitration agreement in Original or a true copy, duly certified by the Advocate or a Notary Public.” Therefore, according to the learned Amicus Curiae in view of the provisions contained in Rule 4(d) of the ARB.APPEAL NO.34/2013 5 Rules, it is open to the parties to either produce original or a true copy, which is duly certified by the Advocate or Notary. He also drew our attention to a decision reported in **S.N.Prasad v. Monnet Finance Ltd. [(2011)1 SCC 320]** wherein the Apex Court inter alia held as follows: "11. What therefore remains to be considered is whether there is an arbitration agreement as contemplated under Section 7 (4)(c) of the Act, which provides that an arbitration agreement in writing can be said to exist,if it is contained in an exchange of statements of claim and defence in which the existence of the arbitration agreement is alleged by one party and not denied by the other. The statement of claim filed by the first respondent before the Arbitrator does not contain an allegation or assertion of an arbitration agreement between the first respondent and the appellant. Nor has the appellant accepted the existence of any ARB.APPEAL NO.34/2013 6 arbitration agreement by not denying such arbitration agreement in the defence filed before the arbitrator. On the other hand, the appellant specifically contended before the Arbitrator that there was no arbitration agreement between them (the first respondent and the appellant) and therefore the arbitrator did not have jurisdiction. 7. In this case, we notice that respondents were ex parte. The appellant produced certain documents. We further notice that in fact Ext.A2 purports to contain the arbitration agreement and even the other documents produced were also photocopies, which were not **.** certified or attested by an Advocate or a Notary Public That apparently is the reason by the court below to refuse the relief. 8. As far as an application under Section 9 of the Act is concerned, it must be accompanied in terms of ARB.APPEAL NO.34/2013 7 Rule 4(d) of the Rules by the Arbitration agreement in original or a true copy, duly certified by the Advocate or a Notary Pubic. We scanned the records. We find from the records that the finding of the court below is that documents were only photocopies. As as far as the document containing the arbitration agreement is concerned, it is not certified as required under the Rules made under the Act. In such circumstances, we do not see any reason to blame the court below for the reasoning it employed. 9. We further notice that there is subsequent development in the form of matter being taken forward by the appellant and an award being passed. In such circumstances, we see no reason to interfere with the order passed by the court below. The appeal fails and it is dismissed. ARB.APPEAL NO.34/2013 8 We record our appreciation for the efforts taken by the learned Amicus Curiae in assisting the court. Sd/- K.M.JOSEPH JUDGE. Sd/- ks A.HARIPRASAD JUDGE. True copy P.S.To Judge ARB.APPEAL NO.34/2013 9