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



Surinder Mohan Talwar & Others v/s Cholamandalam Investment & Finance Co. Ltd.


Company & Directors' Information:- CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LIMITED [Active] CIN = L65993TN1978PLC007576

Company & Directors' Information:- O D FINANCE AND INVESTMENT PRIVATE LIMITED [Active] CIN = U65100DL1992PTC049848

Company & Directors' Information:- P V T INVESTMENT LIMITED [Amalgamated] CIN = U74899DL1988PLC121600

Company & Directors' Information:- O D FINANCE AND INVESTMENT PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049848

Company & Directors' Information:- P V T INVESTMENT LTD [Not available for efiling] CIN = U67120PB1988PLC008068

Company & Directors' Information:- MOHAN FINANCE LTD [Active] CIN = L65921WB1993PLC060697

Company & Directors' Information:- S T INVESTMENT PRIVATE LIMITED [Amalgamated] CIN = U65993WB1990PTC050032

Company & Directors' Information:- H. L. INVESTMENT COMPANY LIMITED [Amalgamated] CIN = U65990WB1975PLC128186

Company & Directors' Information:- B P N INVESTMENT AND FINANCE LIMITED [Active] CIN = U65910MP2007PLC020010

Company & Directors' Information:- M M INVESTMENT PRIVATE LIMITED [Converted to LLP] CIN = U65921CT2008PTC020533

Company & Directors' Information:- G. N. G. INVESTMENT LIMITED [Active] CIN = U65910GJ1981PLC004128

Company & Directors' Information:- A S G S INVESTMENT PRIVATE LIMITED [Active] CIN = U74120DL2008PTC173938

Company & Directors' Information:- M F I FINANCE AND INVESTMENT PRIVATE LIMITED [Active] CIN = U65910KA2005PTC036263

Company & Directors' Information:- A F I FINANCE & INVESTMENT LIMITED [Strike Off] CIN = U65923WB2003PLC097328

Company & Directors' Information:- G L INVESTMENT PVT LTD [Active] CIN = U65993WB1991PTC051072

Company & Directors' Information:- C & C INVESTMENT LTD [Active] CIN = U67120AS1976PLC001654

Company & Directors' Information:- S M S INVESTMENT CORPORATION PRIVATE LIMITED [Active] CIN = U74899DL1963PTC003988

Company & Directors' Information:- V R V INVESTMENT PRIVATE LIMITED [Active] CIN = U67120WB1985PTC039793

Company & Directors' Information:- S P INVESTMENT PVT LTD [Active] CIN = U70109WB1961PTC025099

Company & Directors' Information:- L D K FINANCE AND INVESTMENT PRIVATE LIMITED [Active] CIN = U65921DL1996PTC081013

Company & Directors' Information:- R H INVESTMENT PRIVATE LIMITED [Active] CIN = U99999MH1978PTC020633

Company & Directors' Information:- T N B INVESTMENT PRIVATE LIMITED [Active] CIN = U74899DL1986PTC025590

Company & Directors' Information:- A R S INVESTMENT PVT LTD [Active] CIN = U65993WB1990PTC048513

Company & Directors' Information:- CHOLAMANDALAM FINANCE LTD [Dissolved] CIN = U65191TN1985PLC011639

Company & Directors' Information:- V P INVESTMENT PRIVATE LIMITED [Active] CIN = U74899DL1983PTC015714

Company & Directors' Information:- S M D INVESTMENT LIMITED [Strike Off] CIN = U65993TN1995PLC033139

Company & Directors' Information:- G R D INVESTMENT PVT LTD [Amalgamated] CIN = U67120WB1980PTC032727

Company & Directors' Information:- C AND N INVESTMENT PRIVATE LIMITED [Active] CIN = U74899DL1983PTC015710

Company & Directors' Information:- R INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U65993TZ1988PTC002181

Company & Directors' Information:- H N G L INVESTMENT PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066774

Company & Directors' Information:- K M S INVESTMENT PRIVATE LIMITED [Active] CIN = U67120UP1993PTC015287

Company & Directors' Information:- U M INVESTMENT PVT LTD [Active] CIN = U70101WB1979PTC032160

Company & Directors' Information:- A S T INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U67120DL1996PTC082812

Company & Directors' Information:- B N E INVESTMENT LTD [Not available for efiling] CIN = U67120WB1974PLC029360

Company & Directors' Information:- K S J INVESTMENT COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC061335

Company & Directors' Information:- M G FINANCE AND INVESTMENT LIMITED [Strike Off] CIN = U67120UP1992PLC014845

Company & Directors' Information:- S N B FINANCE & INVESTMENT PVT LTD [Active] CIN = U01100WB1995PTC075944

Company & Directors' Information:- P T INVESTMENT PVT LTD [Strike Off] CIN = U65999WB1995PTC067065

Company & Directors' Information:- K. S. R. INVESTMENT LIMITED [Strike Off] CIN = U65992UP1988PLC010253

Company & Directors' Information:- THE INVESTMENT & FINANCE CO LTD [Strike Off] CIN = U65991WB1896PLC001116

Company & Directors' Information:- S C TALWAR AND COMPANY PVT LTD [Strike Off] CIN = U74899DL1990PTC042402

Company & Directors' Information:- J T INVESTMENT PVT LTD [Strike Off] CIN = U65923WB1979PTC032344

Company & Directors' Information:- R K INVESTMENT LTD [Strike Off] CIN = U65993WB1969PLC027398

Company & Directors' Information:- N M G C INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U74899DL1982PTC014603

Company & Directors' Information:- S P INVESTMENT AND FINANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U65990MH1998PTC116516

Company & Directors' Information:- M AND M FINANCE AND INVESTMENT PVT. LTD. [Strike Off] CIN = U65910UP1994PTC017345

Company & Directors' Information:- M S H FINANCE & INVESTMENT LIMITED [Strike Off] CIN = U65921WB1997PLC085377

Company & Directors' Information:- K A S FINANCE & INVESTMENT LIMITED [Strike Off] CIN = U67120TZ2015PLC021226

Company & Directors' Information:- T M INVESTMENT CO PVT LTD [Active] CIN = U67120WB1971PTC028172

Company & Directors' Information:- S. A. F. INVESTMENT LIMITED [Active] CIN = U67120DL1997PLC088611

Company & Directors' Information:- H K (INVESTMENT) COMPANY PRIVATE LIMITED [Active] CIN = U65990GJ1950PTC000511

Company & Directors' Information:- P N INVESTMENT PRIVATE LIMITED [Under Liquidation] CIN = U65910GJ1988PTC010715

Company & Directors' Information:- K. C. FINANCE AND INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U67120JK1983PTC000589

Company & Directors' Information:- INVESTMENT CORPORATION LIMITED [Under Liquidation] CIN = U65993KL1942PLC000449

Company & Directors' Information:- B R S FINANCE AND INVESTMENT COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1981PTC012845

Company & Directors' Information:- S R M INVESTMENT PVT LTD [Strike Off] CIN = U67120WB1979PTC031888

Company & Directors' Information:- A TO Z INVESTMENT PVT LTD [Dissolved] CIN = U67120WB1988PTC044464

Company & Directors' Information:- R J INVESTMENT PRIVATE LIMITED [Active] CIN = U67120MH1976PTC018954

Company & Directors' Information:- B N K INVESTMENT CO PVT LTD [Active] CIN = U65993WB1971PTC028169

Company & Directors' Information:- A D INVESTMENT CO PVT LTD [Active] CIN = U67120WB1971PTC028170

Company & Directors' Information:- R K S K FINANCE AND INVESTMENT COMPANY LIMITED [Strike Off] CIN = U65910UP1994PLC016853

Company & Directors' Information:- S. K. M. FINANCE AND INVESTMENT COMPANY LIMITED [Strike Off] CIN = U65910UP1994PLC016971

Company & Directors' Information:- G S M FINANCE AND INVESTMENT PVT LIMITED [Strike Off] CIN = U65921PB1993PTC013037

Company & Directors' Information:- T D INVESTMENT CO PVT LTD [Strike Off] CIN = U65921CH1987PTC007637

Company & Directors' Information:- S U FINANCE AND INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U65910UP1994PTC016878

Company & Directors' Information:- C G K INVESTMENT P LTD [Strike Off] CIN = U65910AP1986PTC006088

Company & Directors' Information:- L D INVESTMENT COMPANY PVT LTD [Strike Off] CIN = U65921HP1988PTC008425

Company & Directors' Information:- TALWAR AND COMPANY PVT. LIMITED [Strike Off] CIN = U24231UP1965PTC002603

Company & Directors' Information:- G K INVESTMENT PRIVATE LIMITED [Active] CIN = U65993TZ1987PTC001919

Company & Directors' Information:- G V INVESTMENT PRIVATE LIMITED [Active] CIN = U65993TZ1987PTC001920

Company & Directors' Information:- B C K H INVESTMENT CO PVT LTD [Active] CIN = U67120MH1982PTC026819

Company & Directors' Information:- H V INVESTMENT PRIVATE LIMITED [Active] CIN = U67120MH1997PTC107686

Company & Directors' Information:- M L INVESTMENT PVT LTD [Strike Off] CIN = U67120WB1979PTC032180

Company & Directors' Information:- S & G INVESTMENT COMPANY PRIVATE LIMITED [Active] CIN = U65100DL2012PTC244271

Company & Directors' Information:- D M P FINANCE AND INVESTMENT PRIVATE LIMITED [Active] CIN = U67190GJ2020PTC117201

Company & Directors' Information:- K T FINANCE AND INVESTMENT INDIA LTD [Strike Off] CIN = U65921PB1988PLC008869

Company & Directors' Information:- S B INVESTMENT PVT LTD [Liquidated] CIN = U99999RJ1959PTC001090

Company & Directors' Information:- R AND P INVESTMENT PVT LTD [Strike Off] CIN = U67120PB1995PTC016124

Company & Directors' Information:- E R FINANCE AND INVESTMENT PVT LTD [Strike Off] CIN = U65921PB1988PTC008492

Company & Directors' Information:- G M S FINANCE AND INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U65900DL1983PTC015133

Company & Directors' Information:- M H K FINANCE AND INVESTMENT COMPANY PRIVATE LIMITED [Strike Off] CIN = U65993UP1983PTC005968

Company & Directors' Information:- M M B INVESTMENT PRIVATE LIMITED [Active] CIN = U65993RJ1996PTC012698

Company & Directors' Information:- M G A INVESTMENT COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999MH1980PTC022406

Company & Directors' Information:- D S N INVESTMENT PVT LTD [Strike Off] CIN = U65993TG1988PTC008554

Company & Directors' Information:- INVESTMENT & FINANCE CORPN. PRIVATE LIMITED [Amalgamated] CIN = U65991TN1943PTC000926

Company & Directors' Information:- V. I INVESTMENT PVT LTD [Strike Off] CIN = U67120HR1988PTC030206

Company & Directors' Information:- R J P INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U65993GJ1981PTC004678

Company & Directors' Information:- D D P INVESTMENT PRIVATE LIMITED [Strike Off] CIN = U65910GJ1981PTC004695

Company & Directors' Information:- C J P INVESTMENT PVT LTD [Strike Off] CIN = U99999GJ1981PTC004662

Company & Directors' Information:- M P INVESTMENT CO PRIVATE LIMITED [Under Process of Striking Off] CIN = U65993KA1974PTC002646

Company & Directors' Information:- INVESTMENT COMPANY PRIVATE LIMITED [Dissolved] CIN = U65990KL1946PTC000461

Company & Directors' Information:- INVESTMENT CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1943PLC007730

    O.M.P. (Comm) No. 467 of 2016

    Decided On, 15 March 2019

    At, High Court of Delhi

    By, THE HONOURABLE MS. JUSTICE PRATHIBA M. SINGH

    For the Petitioners: Pinku Singh, Advocate, In Person. For the Respondent: Avinash Kumar, Advocate, Gaurav Dahiya, AR, In Person.



Judgment Text


Oral:

1. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter, ‘Act’) has been filed challenging award dated 21st November, 2011.

2. The background of the disputes is that the Petitioners (hereinafter ‘Borrowers’) had availed of a business loan from the Respondent - Cholamandalam Investment & Finance Co. Ltd. (hereinafter, ‘Respondent’) vide loan agreement no.X0HEDHE00000383124 dated 28th November, 2008. The home equity loan, as per the loan agreement, was sanctioned for a sum of Rs.75,25,000/-, which was due and payable in 156 equal monthly instalments of Rs.1,22,546/-. EMIs were to commence from 5th January, 2009 and were to end on 5th December, 2021. The case of the Borrowers is that 36 EMIs were paid till 31st December, 2011, however, thereafter due to various business losses, the payments could not be made. The Respondent invoked arbitration proceedings and filed its claims for a sum of Rs.77,56,171/- together with simple interest @ 48% per annum. Notice was issued and the Borrowers were served by the Ld. Arbitrator repeatedly, however, they did not appear. The notices of hearing were also sent on several occasions. Since the Borrowers did not appear after repeated opportunities, the Ld. Arbitrator caused publication in Veer Arjun, Delhi and thereafter, the proceedings were continued with the Borrowers being proceeded ex-parte. The findings of the Ld. Arbitrator are:

1) That proper loan documents were executed.

2) That the Borrowers had availed of a business loan.

3) That the loan agreement was duly signed.

4) That the Borrowers were irregular in making payments.

3. In view of the defaults by the Borrowers, the Ld. Arbitrator, after dealing with the exhibits on record, held that the Borrowers are in breach of the loan agreement. Accordingly, the award was passed in the following terms:

“In the result the Award is passed in favor of the claimant herein as follows:

The Respondents are hereby directed to jointly and severally pay to claimant the following amounts:

i] The Claim sum of Rs. 77,56,171/- (Seventy Seven lakhs fifty six thousand one hundred and seventy one) as on 11.08.2011

ii] further interest of 18% per annum for Rs.77,56,171.00 from the date of claim petition until the date of actual payment”

4. The main objection raised in section 34 petition is that the Borrowers were not served in the matter and since the proceedings were ex-parte, they should be given an opportunity to defend the case. It is, further submitted that a letter dated 1st October, 2013 was issued by Respondent finance company in which as on 1st October, 2013, a sum of Rs.34,13,961/- was the outstanding amount. Ld. counsel for the Borrowers submits that in view of this letter, the award, which has awarded a much higher amount in favour of the Respondent, deserves to be set aside.

5. On the other hand, Mr. Avinash Kumar, Ld. counsel for Respondent submits that the Borrowers repeatedly failed to appear before the Ld. Arbitrator. The facts having being admitted in respect of taking of loan, payment of instalments, default in payment of EMIs, the award deserves to be upheld. He further submits that the Borrowers repeatedly avoided appearing before the Ld. Arbitrator, despite service, and hence no leniency ought to be showed. He further submits that the scope of section 34 of the Act is very limited and hence this is not a case calling for interference.

6. This Court has seen the arbitral record. There are various envelopes with the speed post receipts in original. Even the AD cards are on record. Endorsement on these envelopes show that the Ld.Arbitrator has made repeated efforts to serve the Borrowers. Petitioner No.1 – Mr. Surinder Mohan Talwar is present in Court and confirms that his address is B-77, Rishi Nagar, Rani Bagh, New Delhi. The original newspaper of Veer Arjun dated 1st November, 2011 is also on record. Thus, the question of service being disputed does not arise. Ld. Arbitrator has taken sufficient steps to serve the Borrowers. Speed post receipts are in original, envelopes are in original and the newspaper has also been placed on record in original. The address of the Borrowers being the same address where Registered post envelopes were sent, the service is deemed to have been effected in terms of the provisions of section 27 of the General Clauses Act, 1897.

7. Insofar as the letter dated 1st October, 2013, placed as annexure P-5 with the petition is concerned, the same reads as under:

“01-Oct-2013

To,

Mr. SURINDER MOHAN TALWAR

B-77,NEAR CAPTAIN MARG,

RISHI NAGAR RANI BAGH

NEW DELHI – 110034

011-27016781

Dear Sir/Madam,

Sub: Over Due Amount intimation

Ref: Agreement No. X0HEDHE00000383124

This is with reference to your Home Equity Loan availed by you from our Company vide Loan Account No. X0HEDHE00000383124. We have observed an amount of Rs.3413961/- is still outstanding in your above mentioned loan account towards Instalment/Cheque bounced/Additional finance charges. Please be advised these charges were debited on account of bounced Cheques/ ECS towards your monthly instalments and delay in making payment of the same.

Request you to kindly update the same immediately in order to avoid further accumulation of these charges.

Please be advised you need to submit a valid proof in case if the bounce is due to technical reasons.

Further kindly ignore this communication if you have already cleared the entire dues as mentioned above.

Thanking you,

For Cholamandalam Investment and Finance Co. Ltd

(Formerly known as Cholamandalam DBS Finance Ltd)”

From the above letter it is clear that as of 1st October, 2013, a sum of Rs.34,13,961/- was shown to be the outstanding sum. There is no doubt that the award has been passed for a much higher amount of Rs.77,56,171/- along with simple interest @ 18% per annum. The above letter is annexed as Annexure P-5 with the objection petition. No reply has been filed to the objection petition till date. Section 34 was preferred on 28th July, 2014 and it has almost five years since this document has been in possession of the Respondent. The Respondent was given sufficient time to verify this document. Further, a perusal of the document also shows that the same is not a fabricated document. Similar letters are on the arbitral record, which are computer generated without any signatures. Even the agreement number, the letter head used, etc. all are authentic. Thus, as on 1st October, 2013, admittedly, the outstanding amount was, in terms of the letter, Rs.34,13,961/-. Since this document was issued by the Respondent finance company, which has not challenged the veracity or the genuinity of the letter, the Court is inclined to modify the award in terms of this letter.

8. Ld. counsel for Respondent submits that this may possibly be a sett

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lement offer made by the finance company to the Borrowers. Even if this is the position, considering that Petitioner No.1 is not in good financial condition, the impugned award is modified to the effect that the claims of Respondent finance company are allowed for a sum of Rs.34,13,961/- to be paid along with simple interest @ 8% per annum from 1st October, 2013 till date. The impugned award is modified, accordingly. 9. Petitioner No.1 confirms that the mortgaged property stands in the name of his wife. The Borrowers are restrained from disposing of the mortgaged property or creating any third party interest till the disposal of the execution proceedings or the SARFAESI proceedings which may be instituted by the Respondent. 10. OMP is disposed of in the above terms.
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