w w w . L a w y e r S e r v i c e s . i n



K. Prem Chander & Another v/s M/s. Hella India Automotive Private Limited Formerly known as FTZ Engineering (P) Ltd., Chennai & Another


Company & Directors' Information:- M & B ENGINEERING LIMITED [Active] CIN = U45200GJ1981PLC004437

Company & Directors' Information:- HELLA INDIA AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U74899DL1980PTC011074

Company & Directors' Information:- J J AUTOMOTIVE LTD [Active] CIN = L34103WB1981PLC033996

Company & Directors' Information:- G. R. ENGINEERING PRIVATE LIMITED [Active] CIN = U65990MH1990PTC058602

Company & Directors' Information:- G G ENGINEERING LIMITED [Active] CIN = L28900MH2006PLC159174

Company & Directors' Information:- V U B ENGINEERING PRIVATE LIMITED [Active] CIN = U29290MH2005PTC154033

Company & Directors' Information:- N S ENGINEERING COMPANY PVT LTD [Active] CIN = U29219TG1989PTC010511

Company & Directors' Information:- HELLA ENGINEERING PRIVATE LIMITED [Amalgamated] CIN = U35914DL2002PTC209700

Company & Directors' Information:- S S S ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U27205KA1981PTC004194

Company & Directors' Information:- H M G ENGINEERING LIMITED [Active] CIN = U45200MH1977PLC019533

Company & Directors' Information:- K R R ENGINEERING PRIVATE LIMITED [Active] CIN = U29309TN1989PTC016852

Company & Directors' Information:- G G ENGINEERING LIMITED [Active] CIN = U28900MH2006PLC159174

Company & Directors' Information:- D B ENGINEERING PRIVATE LTD [Active] CIN = U74899DL1986PTC026541

Company & Directors' Information:- G G ENGINEERING PRIVATE LIMITED [Active] CIN = U28900MH2006PTC159174

Company & Directors' Information:- J P ENGINEERING CORPN PVT LTD [Active] CIN = U34103WB1951PTC019638

Company & Directors' Information:- S N B ENGINEERING PRIVATE LIMITED [Active] CIN = U27106DL2007PTC301213

Company & Directors' Information:- S C L AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U35900TN2009PTC072343

Company & Directors' Information:- P P AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U35999HR2009PTC039808

Company & Directors' Information:- T P W ENGINEERING LTD [Active] CIN = U27203WB1975PLC029939

Company & Directors' Information:- C L ENGINEERING PRIVATE LIMITED [Active] CIN = U34300PB1992PTC012057

Company & Directors' Information:- AUTOMOTIVE CORPN OF INDIA LTD [Strike Off] CIN = U15422MH1974PLC017377

Company & Directors' Information:- W & W ENGINEERING PRIVATE LIMITED [Active] CIN = U72900TN2003PTC051228

Company & Directors' Information:- M L R ENGINEERING PRIVATE LIMITED [Active] CIN = U74999TG2006PTC051974

Company & Directors' Information:- K B ENGINEERING CO PVT LTD [Active] CIN = U74160TG1988PTC008366

Company & Directors' Information:- R P ENGINEERING PVT LTD [Active] CIN = U29299WB1992PTC055482

Company & Directors' Information:- J & K ENGINEERING LIMITED [Active] CIN = U45203JK2006PLC002684

Company & Directors' Information:- G. H. AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U34300DL2007PTC161956

Company & Directors' Information:- S P T ENGINEERING PRIVATE LIMITED [Converted to LLP] CIN = U27109UP2005PTC030940

Company & Directors' Information:- A R F ENGINEERING LIMITED [Active] CIN = U27200TN1980PLC008347

Company & Directors' Information:- A M ENGINEERING PRIVATE LIMITED [Amalgamated] CIN = U65910MH1981PTC187856

Company & Directors' Information:- S. S. E. ENGINEERING PRIVATE LIMITED [Active] CIN = U36990MH2007PTC175320

Company & Directors' Information:- C T ENGINEERING LIMITED [Strike Off] CIN = U29259GJ1986PLC009007

Company & Directors' Information:- C V AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U63011DL2009PTC189646

Company & Directors' Information:- R AND S ENGINEERING INDIA PVT LTD [Active] CIN = U29199GJ1995PTC027661

Company & Directors' Information:- U AND R ENGINEERING PRIVATE LIMITED [Active] CIN = U29199TZ1999PTC009012

Company & Directors' Information:- I Q ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U85110KA1996PTC021507

Company & Directors' Information:- G M ENGINEERING PRIVATE LIMITED [Active] CIN = U28910GJ2013PTC077091

Company & Directors' Information:- W. E. ENGINEERING PVT. LTD. [Active] CIN = U52335WB1985PTC039370

Company & Directors' Information:- K J AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U50401PN2013PTC146058

Company & Directors' Information:- L. B. ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2018PTC225084

Company & Directors' Information:- R I ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U74210KA1991PTC012420

Company & Directors' Information:- PREM ENGINEERING PVT LTD [Active] CIN = U27109GJ1995PTC025100

Company & Directors' Information:- U D ENGINEERING PRIVATE LIMITED [Active] CIN = U32109DL1999PTC102586

Company & Directors' Information:- K M T S ENGINEERING PRIVATE LIMITED [Active] CIN = U29192DL2005PTC141240

Company & Directors' Information:- C A G ENGINEERING LIMITED [Active] CIN = U00350PB2006PLC029521

Company & Directors' Information:- C A G ENGINEERING LIMITED [Active] CIN = U29110PB2006PLC029521

Company & Directors' Information:- D ENGINEERING PRIVATE LIMITED [Active] CIN = U29269TZ1932PTC000046

Company & Directors' Information:- V K B ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL2005PTC141483

Company & Directors' Information:- J D V AUTOMOTIVE ENGINEERING PVT LTD [Active] CIN = U31909MH1982PTC028905

Company & Directors' Information:- INDIA ENGINEERING PRIVATE LIMITED [Active] CIN = U72200PN1999PTC014259

Company & Directors' Information:- C N C ENGINEERING LIMITED [Strike Off] CIN = U93000KA1986PLC007922

Company & Directors' Information:- M K V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29199TZ1997PTC007736

Company & Directors' Information:- D M AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U29253HR2012PTC045797

Company & Directors' Information:- G V T ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U29219DL1996PTC082427

Company & Directors' Information:- K. I. ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2009PTC133109

Company & Directors' Information:- G M E P ENGINEERING PRIVATE LIMITED [Active] CIN = U29192DL1998PTC096737

Company & Directors' Information:- J T ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018756

Company & Directors' Information:- M C ENGINEERING CO PVT LTD [Active] CIN = U74899DL1972PTC006392

Company & Directors' Information:- C P ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U27209TN1987PTC014052

Company & Directors' Information:- L K AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U34300GJ2011PTC066118

Company & Directors' Information:- H V S ENGINEERING PRIVATE LIMITED [Active] CIN = U28920MH2005PTC158342

Company & Directors' Information:- S C ENGINEERING CO PVT LTD [Active] CIN = U74210WB1982PTC035623

Company & Directors' Information:- U M ENGINEERING PRIVATE LIMITED [Active] CIN = U29200MH1977PTC019574

Company & Directors' Information:- A V K ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071971

Company & Directors' Information:- S K ENGINEERING CO PRIVATE LIMITED [Strike Off] CIN = U05001UP1952PTC002408

Company & Directors' Information:- G D ENGINEERING COMPANY (INDIA) PVT LTD [Active] CIN = U74210WB1993PTC058553

Company & Directors' Information:- V M R ENGINEERING PRIVATE LIMITED [Active] CIN = U29120DL2005PTC136764

Company & Directors' Information:- K. S. I. ENGINEERING PRIVATE LIMITED [Active] CIN = U36999HR2007PTC036660

Company & Directors' Information:- N S S ENGINEERING PRIVATE LIMITED [Active] CIN = U28999KA1989PTC010312

Company & Directors' Information:- A P V ENGINEERING CO LTD [Strike Off] CIN = U29113WB1945PLC006428

Company & Directors' Information:- G B ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29212PB1996PTC017500

Company & Directors' Information:- C M S ENGINEERING INDIA PRIVATE LIMITED [Strike Off] CIN = U74210TN2010PTC075302

Company & Directors' Information:- T S C ENGINEERING PRIVATE LIMITED [Active] CIN = U70109DL2011PTC217251

Company & Directors' Information:- H T S ENGINEERING PRIVATE LIMITED [Active] CIN = U74999MH2008PTC187914

Company & Directors' Information:- T P ENGINEERING PRIVATE LIMITED [Active] CIN = U45201OR2010PTC011517

Company & Directors' Information:- S B ENGINEERING PVT LTD [Active] CIN = U29199GJ1982PTC005292

Company & Directors' Information:- PREM AND COMPANY PVT LTD [Active] CIN = U15143PB1990PTC010175

Company & Directors' Information:- J J ENGINEERING PVT LTD [Active] CIN = U29219WB1986PTC041433

Company & Directors' Information:- D & L ENGINEERING PRIVATE LIMITED [Converted to LLP] CIN = U29113TN2004PTC052690

Company & Directors' Information:- H R P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31503MH1997PTC108621

Company & Directors' Information:- S H ENGINEERING PRIVATE LIMITED [Active] CIN = U70101WB1999PTC088930

Company & Directors' Information:- V K S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28133TN2005PTC057283

Company & Directors' Information:- M K ENGINEERING PVT LTD [Active] CIN = U29199GJ1995PTC027278

Company & Directors' Information:- K J ENGINEERING PRIVATE LIMITED [Active] CIN = U29299PN2006PTC129171

Company & Directors' Information:- C S S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45302TN2003PTC051161

Company & Directors' Information:- N. P. ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31100WB2010PTC150609

Company & Directors' Information:- S R K ENGINEERING CO PVT LTD [Active] CIN = U67120WB1994PTC063442

Company & Directors' Information:- M P T ENGINEERING PVT LTD [Strike Off] CIN = U29299KL1994PTC007761

Company & Directors' Information:- T S R C ENGINEERING PRIVATE LIMITED [Active] CIN = U29100UP2020PTC133920

Company & Directors' Information:- A K ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U50300UP1981PTC005354

Company & Directors' Information:- H M T D ENGINEERING PVT LTD [Active] CIN = U99999MH1981PTC035175

Company & Directors' Information:- J P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28129MH1972PTC015813

Company & Directors' Information:- V M ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U28920MH1969PTC014224

Company & Directors' Information:- H M A ENGINEERING LIMITED [Strike Off] CIN = U45209PB2008PLC031777

Company & Directors' Information:- K S M ENGINEERING PRIVATE LIMITED [Active] CIN = U74210TG1997PTC028612

Company & Directors' Information:- M M ENGINEERING COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U28932MH1979PTC021819

Company & Directors' Information:- N G T ENGINEERING PVT LTD [Active] CIN = U27109WB1968PTC027292

Company & Directors' Information:- M A S ENGINEERING PRIVATE LIMITED [Active] CIN = U99999MH1976PTC019233

Company & Directors' Information:- J N AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U50102AS2014PTC011838

Company & Directors' Information:- G R K ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U74200AP2011PTC076356

Company & Directors' Information:- P N S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29120TN2006PTC060120

Company & Directors' Information:- A S A AUTOMOTIVE PVT LTD [Strike Off] CIN = U51109WB1991PTC052174

Company & Directors' Information:- K P ENGINEERING CORPORATION PVT LTD [Strike Off] CIN = U74200WB1961PTC025258

Company & Directors' Information:- M A N INDIA ENGINEERING LTD [Strike Off] CIN = U74200WB1979PLC020893

Company & Directors' Information:- R V K ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253TN2010PTC074505

Company & Directors' Information:- R K ENGINEERING COMPANY PVT LTD [Active] CIN = U74899DL1975PTC007743

Company & Directors' Information:- G S A ENGINEERING CORPN PVT LTD [Strike Off] CIN = U74210WB1957PTC023382

Company & Directors' Information:- A R M ENGINEERING PRIVATE LIMITED. [Strike Off] CIN = U00500JH1988PTC003057

Company & Directors' Information:- L & V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45202MZ2005PTC007690

Company & Directors' Information:- S G A ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U29200MH2005PTC154349

Company & Directors' Information:- C P C ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29120TZ1986PTC001880

Company & Directors' Information:- P K R ENGINEERING INDIA PRIVATE LIMITED [Strike Off] CIN = U29130TZ2004PTC011094

Company & Directors' Information:- R R K ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2011PTC161080

Company & Directors' Information:- D M S ENGINEERING CO PVT LTD [Strike Off] CIN = U28920WB1964PTC026168

Company & Directors' Information:- HELLA INDIA LIMITED [Strike Off] CIN = U29253DL1996PLC079100

Company & Directors' Information:- S D S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28999PN2000PTC014838

Company & Directors' Information:- N T ENGINEERING COMPANY PVT LTD [Strike Off] CIN = U99999PY1986PTC000445

Company & Directors' Information:- R K ENGINEERING PRIVATE LIMITED [Active] CIN = U31100MH2005PTC152838

Company & Directors' Information:- V J S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29130TN1996PTC036636

Company & Directors' Information:- D R P AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U51101DL2014PTC267341

Company & Directors' Information:- R. K. V. ENGINEERING PRIVATE LIMITED [Active] CIN = U29253MH2010PTC205237

Company & Directors' Information:- U S ENGINEERING PVT LTD [Active] CIN = U34300CH1986PTC006887

Company & Directors' Information:- A D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74210OR1989PTC002348

Company & Directors' Information:- R J ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U27107RJ1972PTC001441

Company & Directors' Information:- H F ENGINEERING PRIVATE LIMITED [Active] CIN = U29244KL2013PTC033909

Company & Directors' Information:- O N ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC031987

Company & Directors' Information:- P S R ENGINEERING PVT LTD [Strike Off] CIN = U40200WB1987PTC042244

Company & Directors' Information:- P N ENGINEERING CO PVT LTD [Strike Off] CIN = U74210WB1980PTC032750

Company & Directors' Information:- A M A R ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29219DL1997PTC084187

Company & Directors' Information:- S G D ENGINEERING PRIVATE LIMITED [Active] CIN = U29210KA2009PTC050452

Company & Directors' Information:- G A S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29191MH2004PTC149606

Company & Directors' Information:- G T ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29219PN2012PTC145781

Company & Directors' Information:- M. M. K. ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U29305MH2014PTC252830

Company & Directors' Information:- K-4 ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31400MH2010PTC204004

Company & Directors' Information:- D S AUTOMOTIVE PRIVATE LIMITED [Strike Off] CIN = U50102MH2011PTC215763

Company & Directors' Information:- N J ENGINEERING PRIVATE LIMITED [Active] CIN = U45209MH2015PTC262607

Company & Directors' Information:- P R S ENGINEERING PRIVATE LIMITED [Active] CIN = U29253TN2009PTC073915

Company & Directors' Information:- U P S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U40300TN2013PTC090167

Company & Directors' Information:- V. E AUTOMOTIVE INDIA PRIVATE LIMITED [Active] CIN = U34200UP2012PTC054101

Company & Directors' Information:- K G D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400WB2014PTC200732

Company & Directors' Information:- T A ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28992CH2003PTC025800

Company & Directors' Information:- M N A ENGINEERING PVT LTD [Strike Off] CIN = U45202CH2006PTC030215

Company & Directors' Information:- A A P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U27106DL2005PTC138318

Company & Directors' Information:- A C ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253DL2011PTC222515

Company & Directors' Information:- S. Z. ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253DL2014PTC274095

Company & Directors' Information:- IN ENGINEERING PRIVATE LIMITED [Active] CIN = U74210DL2011PTC212284

Company & Directors' Information:- J N ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC278906

Company & Directors' Information:- N I ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC280734

Company & Directors' Information:- K. S. AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U51502DL2007PTC163634

Company & Directors' Information:- A N D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U51502DL2012PTC242516

Company & Directors' Information:- R R V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U51909DL1997PTC089342

Company & Directors' Information:- Z. M. ENGINEERING PRIVATE LIMITED [Active] CIN = U51909DL2007PTC168270

Company & Directors' Information:- K Y ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74999DL2013PTC248278

Company & Directors' Information:- R AND T ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U34300DL2005PTC136846

Company & Directors' Information:- J K AUTOMOTIVE PRIVATE LIMITED [Converted to LLP] CIN = U34300DL2011PTC218392

Company & Directors' Information:- THE ENGINEERING CORPORATION PRIVATE LIMITED [Strike Off] CIN = U99999KA1951PTC000699

Company & Directors' Information:- S J P ENGINEERING CO. PRIVATE LIMITED [Strike Off] CIN = U51505KA2002PTC030808

Company & Directors' Information:- S I ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U27109UP1967PTC003182

Company & Directors' Information:- W D ENGINEERING PRIVATE LIMITED [Active] CIN = U29308MH2020PTC345065

Company & Directors' Information:- S D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U18101DL1999PTC102948

Company & Directors' Information:- M B D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74210DL2008PTC181446

Company & Directors' Information:- A. B. C. ENGINEERING CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1950PLC008192

Company & Directors' Information:-  ENGINEERING COMPANY ( [Not Available for eFiling] CIN = U99999MH1951PLC010002

    O.P.No. 313 of 2014

    Decided On, 06 July 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. SUNDAR

    For the Petitioners: Suresh Babu, Advocate. For the Respondents: R1, S. Ravi of M/s. Gupta & Ravi (Law Firm), Advocates.



Judgment Text


(Prayer: Original Petition filed under Section 34 (1) of the Arbitration and Conciliation Act, 1996, to set aside the award passed by the second respondent /learned Arbitrator in Arbitration Case No.SJ/HELLA/1/2007 dated 17.12.2009 with cost of this proceedings.)

This is an application for setting aside an arbitral award dated 17.12.2009 made by the second respondent, who is the sole arbitrator, who constituted the Arbitral Tribunal.

2. This award dated 17.12.2009 shall be referred to as ‘impugned award’ and the second respondent, who constituted the Arbitral Tribunal as sole arbitrator shall be referred to as ‘AT’ denoting ‘Arbitral Tribunal’.

3. As applications for setting aside arbitral awards are being given the nomenclature ‘Original Petition’ by the Registry in this Court, this case on hand shall be referred to as ‘OP’ denoting ‘Original Petition’.

4. First respondent in instant OP, namely ‘Hella India Automative Private Limited’ (hereinafter ‘Hella’ for the sake of brevity) is the claimant before AT. Petitioners 1 and 2 in instant OP are Respondents 1 and 2 respectively before the AT. However, the parties will be referred to either by their ranks before this Court or by short form for the sake of convenience and clarity.

5. Nucleus of the lis qua instant OP on hand is an agreement dated 25.05.2001, which has been marked as Ex.C4 before AT. What is of significance is, there are three parties to Ex.C4 and they are ‘Babcock Borsig Softech Limited’ (hereinafter ‘BBSL’ for brevity), petitioner Nos.1 and 2. While BBSL is a Private Limited Company (this Court is informed that it is a company incorporated in India) and therefore a juristic person, petitioners 1 and 2 are natural persons. Clause 19 of this nucleus agreement serves as an arbitration agreement between these three parties and clause 19 of the nucleus agreement reads as follows:

‘19. any / all dispute(s) and / or difference(s) and / or question(s) between the parties to this agreement out of this agreement or any part thereof including any breach of the term(s) and condition(s) of this agreement shall be settled by arbitration by the sole arbitrator who shall be appointed by the company in its absolute discretion and the award given by such arbitrator shall be binding on the parties to this agreement. The venue of arbitration shall be Chennai and the Courts in Chennai shall have exclusive jurisdiction on the matter.’

6. Thereafter, there are also two indemnity bonds dated 25.05.2001 executed by petitioners 1 and 2 in favour of BBSL, which have been marked as Ex.C5 collectively before AT.

7. The sum and substance of this nucleus agreement and two indemnity bonds, namely Exs.C4 and C5 are that BBSL sent first petitioner to Germany for training in lieu of which first petitioner agreed / undertook to serve BBSL or any of its associates or affiliates companies to which he may be transferred for a minimum period of 5 years from the date of beginning of training in Germany and first petitioner also agreed to not to take up employment with any other employer either during the period of training or during the period of service. There is also a clause for liquidated damages wherein it has been covenanted that if the first petitioner breaches the terms, BBSL will be entitled to claim liquidated damages of Rs.5 lakhs.

8. The first respondent submitted a letter of resignation dated 02.01.2006 citing family and personal reasons. Complaining that this is breach, arbitration clause was invoked / arbitration proceedings were commenced and the same culminated in the impugned award vide which AT has inter alia held that there is breach by the petitioners and awarded Rs.3 lakhs as liquidated damages, besides certain directions regarding arbitration expenses and interest. To be noted, this court is informed that second petitioner is surety qua first petitioner’s aforementioned undertaking.

9. Assailing the impugned award, instant OP was presented in this Court under Section 34 of ‘The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)’, which shall hereinafter be referred to as ‘A and C Act’ for the sake of brevity. Instant OP was presented some time in March of 2010 and therefore, the case on hand is more than a decade old in this Court. In view of the time line for disposal of an application under section 34 prescribed vide sub-section (6) of section 34 viewed in the light of the observation made by Hon’ble Supreme Court in State of Bihar Vs. Bihar Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472 (Paragraph 26), it would be appropriate to describe instant OP as ancient rather than vintage.

10. Be that as it may, in the web-hearing on a video-conferencing platform, i.e., virtual court today, Mr.Suresh Babu, learned counsel for petitioners and Mr.Ravi of M/s.Gupta and Ravi (Law Firm), learned counsel for contesting first respondent who are before me are ready for final disposal paving the way for disposal of an ancient matter through modern technology.

11. Counsel for petitioners submitted that as protagonist of instant OP, his submissions shall be predicated and posited only on two slots and they are Section 34(2)(a)(ii) and Section 34(2)(a)(iii). To be noted, Section 34(2)(a)(iii) consists of three limbs and learned counsel pitched himself on the first limb, namely petitioners herein not being given proper notice of appointment of Arbitrator.

12. With regard to the first slot, namely the arbitration agreement not being valid, learned counsel submitted that there is no arbitration agreement between Hella and petitioners. In other words, it is his pointed submission that there is no arbitration agreement within the meaning of Section 2(1)(b) read with Section 7 of A and C Act as Hella is neither a party to nucleus agreement within the meaning of Section 2(1)(h) of A and C Act nor is there novation of nucleus agreement. Furthering his submission on these lines, learned counsel referred to Ex.C.9 which is a letter dated 17.06.2003 from an entity which goes by the name ‘FTZ Engineering Private Limited’ (‘FTZ’ for brevity) to first petitioner, wherein FTZ has stated that it has undertaken for the purpose of continuity of service and benefits of employment such as provident fund and gratuity, the obligations of BBSL under nucleus agreement (Ex.C.4).

13. It was submitted that in the impugned award AT has proceeded on the basis that Ex.C9 operates as novation qua Ex.C4. To be noted, FTZ is also a juristic person as it is a private limited company. This FTZ appears to have subsequently been rechristened as Hella Engineering Pvt. Ltd. Thereafter, Hella Engineering Pvt. Ltd., also appears to have been reborn as Hella India Automotive Private Limited, owing to which an amendment has been carried out in instant OP vide order dated 06.02.2020 in A.No.473 of 2020. In other words, it is the pointed submission of learned counsel for petitioners that while nucleus agreement (Ex.C.4) is with BBSL, one FTZ undertakes obligations with regard to continuity of service with first petitioner and this FTZ turns into Hella Engineering Private Limited, which has ultimately now become ‘Hella India Automotive Private Limited’ (‘Hella’ as is being referred to in short form in this order for the sake of brevity), all of which are juristic persons.

14. Second point of argument of learned counsel for petitioners is predicated on the first limb of Section 34(2)(a)(iii) as mentioned supra. In other words, it is his pointed case that the petitioners were not given notice of appointment of Arbitrator much less proper notice. Furthering his submission in this regard, learned counsel drew the attention of this Court to Ex.C16, which is a letter dated 27.04.2007 from Hella Engineering Private Limited to the petitioners. Though postal receipts showing despatch are available, there is nothing to show that it has been served on the noticees, who are petitioners 1 and 2 respectively.

15. In response to this submission made by learned counsel for petitioners, learned counsel for contesting first respondent relied heavily on Ex.C9 and submitted that it becomes novation and therefore, it should be construed that FTZ has stepped into the shoes of BBSL.

16. With regard to the second contention, learned counsel for first respondent submitted that Ex.C16 has been despatched to the petitioners’ last known habitual residence and therefore, it should be construed that Ex.C16 has been duly served on the petitioners.

17. This Court carefully considered the rival submissions.

18. Before proceeding further, as would be evident from the narrative thus far, both points that have been urged in instant OP are under Section 34(2)(a) of A and C Act. Therefore, ‘establish on the basis of the record of the arbitral tribunal’ approach was taken as records of AT were requisitioned earlier and the same are before me. To be noted, the expression ‘furnishes proof that’ was substituted with ‘establishes on the basis of the record of the arbitral tribunal that’, vide Arbitration and Conciliation (Amendment) Act, 2019, which is Act 33 of 2019. In Act 33 of 2019, which is the amending Act, Section 7 deals with this amendment to Section 34 and Section 7 has been duly notified on and from 30.08.2019 vide Notification of Ministry of Law and Justice (Department of Legal Affairs) being S.O.3154(E) dated 30.08.2019.

19. In this regard, it is pertinent to mention that a perusal of the case file placed before me reveals that predecessor learned Judge has requisitioned the arbitral records from AT, the same have been sent by the AT and the entire arbitral records are before me today (as already mentioned supra elsewhere in this order).

20. I examined the two rival contentions by carefully sifting through the records of AT.

21. With regard to the first contention that there is no valid arbitration agreement between Hella and petitioners, Exs.C1 to C16 have been marked and one witness CW1 (R.Venkatesan, General Manager of Hella) has been examined. To be noted, first respondent Hella is claimant before AT. With regard to the petitioners before me, though no oral evidence was let in, two exhibits Exs.R1 and R2 have been marked.

22. A careful perusal of aforementioned exhibits bring to light that there is no document to show that there is an arbitration agreement between Hella and petitioners. Therefore, this question regarding a valid arbitration agreement between petitioners and Hella can be answered only by answering the question as to whether aforementioned Ex.C9 acts as novation qua Ex.C4 and as to whether the arbitration agreement between BBSL and petitioners now becomes an arbitration agreement between Hella and petitioners. Therefore, this point turns on novation. The pointed issue is whether Ex.C9 dated 17.06.2003 acts as novation qua nucleus contract Ex.C.4 dated 25.05.2001. For this purpose, learned counsel for petitioners pressed into service a judgment of Hon’ble Division Bench of this Court being Andhra Bank Vs. Bhagya Nagar Solvent Extractions Pvt. Ltd. in C.R.P.No.143 of 2016 (order dated 13.01.2020). Attention of this Court was drawn to Paragraphs 13, 14 and 26 which read as follows:

‘13.DRT, after extracting Section 62 of the Indian Contract Act, 1872, has also considered a catena of decisions in K.Appukuttan Panicker and Anr. v. S.K.R.A.K.R. Athappa Chettiar and Ors [AIR 1966 Kerala 303], Canara Bank & Ors. v. City Bank N.A. & Ors. [(2004) 1 SCC 12], has recorded a finding to invoke the Principle of Novation under Section 62 of the Indian Contract Act, 1872 and there should be an agreement of parties to the new contract and the liability of the original contractor can be transferred only by Tripartite Agreement which will amount to Novation and further in para 12.21 observed that “At no stretch of imagination, an inference can be drawn from Exs.A16 to A28 and A30 to A33 to the effect that there was a Tripartite Agreement between the petitioner/bank, first respondent, second respondent and other respondents” and in the absence of any evidence to prove the Tripartite Agreement and substitution of old contract, the plea of Novation made by the petitioner/bank cannot be sustained and that was the main reason for the dismissal of the Original Application.

14. The Appellate Authority, namely DRAT concurred with the findings of the Tribunal/DRT and dismissed the appeal filed by the petitioner/bank and thus, it is a case of concurrent finding.

26. In the considered opinion of the Court, no tenable grounds have been placed to persuade this Court to exercise the power of judicial review for the reason that DRT-II, Chennai as well as DRAT, Chennai had considered the factual aspects and legal position and rightly reached the conclusion that no evidence was made available to prove the fact of Tripartite Agreement between the parties herein for substitution of old contract and the documentary evidence produced by the petitioner/bank before the Tribunal would also reveal/disclose that repeated averments made by the first respondent for settlement of dues and also in the form of OTS, have not been accepted and in the absence of any new material as to the substitution of old contract in the form of new contract, the plea for novation taken by the petitioner cannot be accepted and the materials placed on record before this Court did not probablise the case of the petitioner/original applicant.’

23. Suffice to say that Bhagya Nagar principle when applied to fact setting of this case is, BBSL is not a party to Ex.C9 and therefore, there can be no novation. To put it differently, subsequent agreement has to necessarily be tripartite for a novation to come into force is Bhagya Nagar principle. If this principle laid down by a Hon’ble Division Bench of this Court is applied to the factual matrix of this case, it emerges clearly that Ex.C9 does not operate as novation qua Ex.C4.

24. A careful perusal of Ex.C9 reveals that first petitioner has not signed the same. It is a unilateral letter written by Hella to first petitioner. To be noted, Ex.C.9 has been marked subject to objection. Learned counsel for first respondent attempted to explain this by saying that Ex.C9 has been acted upon. In the considered view of this Court this is no argument, much less a convincing argument as we are dealing with an arbitration agreement and AT is a creature of contract. A careful perusal of Section 2(1)(b) read with Section 7 of A and C Act makes it clear that there is no arbitration agreement between Hella and petitioners. This is more so as Ex.C9 makes it clear that Hella has taken over the obligations of BBSL only with regard to continuity of service of first petitioner. In this regard, it was also argued by first respondent that in the nucleus agreement Ex.C4 in Clause 3, it has been covenanted that the first petitioner undertook to serve BBSL or any of its associates or affiliated companies to which he may be transferred. This again does not save the day for Hella with regard arbitration agreement as petitioners have raised this point before AT and AT has answered this in Issue No.(c) in the following manner:

‘(c) Whether there was an agreement between the claimant company and the respondents?

32. It was argued by the learned counsel for the respondents that there was no agreement between the claimant and the respondents. This argument has already been considered in detail and decided against the respondents by this Arbitral Tribunal by its order dated 09.07.2008 and passed while dealing with the preliminary objections raised by the respondents, who are, now, not entitled to raise the very same point once again in these very proceedings. ‘

25. In the light of Section 16 and more particularly in the light of sub-section (4) of Section 16, petitioners are entitled to raise this point now. In this regard, the ratio laid down by Hon’ble Supreme Court in Lion Engineering case [Lion Engineering Consultants Vs. State of Madhya Pradesh reported in (2018) 16 SCC 758] is relevant.

26. Before moving on to the second point, it is made clear that this Court has not embarked upon the exercise of reappreciation of evidence. Records of AT and dispositive reasoning of AT have been tested on the touchstone of Bhagya Nagar principle qua novation.

27. This takes us to the second point of contention. A careful perusal of records of AT reveals that there is nothing to show that Ex.C.16 has been served on noticees, namely petitioners before me. Learned counse

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l for first respondent in response to this drew my attention to Section 3(1)(b) of A and C Act and submitted that a record of attempt to deliver Ex.C.16 to last known habitual residence of petitioners will suffice. 28. This Court is unable to accept this submission as sub-clauses (b) and (a) of Section 3(1) are dovetailed. A careful reading of Section 3(1) in its entirety would reveal that only if the place of business, habitual residence or mailing address of a noticee cannot be found after making reasonable inquiry, a written communication can be deemed to have been received if it is sent to the addressee’s last known habitual address, place of business or mailing address. It is nobody’s case here that the three kinds of addresses referred to in Section 3(1)(a) could not be found after making reasonable inquiry. On the contrary, the whole matter has proceeded on the basis that petitioners continue to reside in the same address and it is not the case of Hella that petitioners have changed their address and Hella is unable to locate / find the new address. Therefore, Section 3(1)(b) of A and C Act does not come to the aid of the first respondent (Hella) in instant OP. If section 3(1) does not come to the aid to first respondent owing to the fact setting of this case, the argument predicated and posited on Section 34(2)(a)(iii) (first limb) needs to be sustained. Likewise, as the validity of the arbitration agreement (Clause 19 of nucleus agreement Ex.C.4) turns on novation (Ex.C.9 qua Ex.C.4) and as I find for the petitioners on novation point, the argument predicated on Section 34(2)(a)(ii) also deserves to be sustained in the light of facts and circumstances of the instant case. 29. Owing to all that have been set out supra, instant OP is allowed and impugned award is set aside. There shall be no order as to costs.
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