IN THE CITY CIVIL COURT AT CALCUTTA

BEFORE THE LEARNED JUDGE

MISC CASE NO. OF 2022

In the matter of:

The Arbitration & Conciliation Act, 1996;

-And-

In the matter of:

An application under Section 34 of the said

Act;

-And-

In the matter of:

An award dated 1st February, 2022 made
and published by the learned Sole
Arbitrator, Sri Anirudha Mohanta,
Advocate;

-And-
In the matter of:
MASUD ALAM, proprietor of Ataur E-
Rickshaw and Engineering Work Shop
having registered address at Idgahapara,
Harishchandrapur, Malda, West Bengal-
732125

.. Petitioner

Versus

MICKY METALS LTD, a company within

the meaning of Companies Act, 2013,
having its registered office at 46/D,
Muktaram Babu Street, Kolkata- 700007.

.. Respondent

The humble petition/application on behalf of the Petitioner above named

most respectfully –
SHEWETH:

1. That the respondent is a limited company within the meaning of the

Companies Act, 1956 and is an existing company under the provisions
of Companies Act, 2013 and associated with the business of
manufacturing, sales of various TMT bars and other metallic products
having its registered office at 46/D, Muktaram Babu Street, Kolkata-
700007.

2. That on 16th March 2020 the petitioner approached the respondent to

supply different types of TMT Bars for the proprietorship company of
the Respondent. Accordingly, the Respondent issued a GST Invoice
amounting to Rs. 5,44,002/- (Rupees Five Lakh Forty Four Thousand
One Two) only along with the terms and condition in favour of the
Petitioner herein.

3. That again on 8th July 2020 the Respondent issued a GST Invoice
amounting to Rs. 5,05,155/- (Rupees Five Lakh Five Thousand One
Hundred Fifty Five) only along with the terms and condition in favour
of the Petitioner herein against supply of different types of TMT Bars.

4. That an amount of Rs. 4,30,110/- (Rupees Four Lakh Thirty Thousand

One Hundred Ten) was being paid on ad hoc basis to the respondent
by the petitioner.

5. However, when the Respondent supplied the said TMT Bars vide
invoice dated 8th July 2020 to the petitioner it was observed by the
petitioner that inferior quality of TMT bars were supplied to him and
were high-priced according to the product. The petitioner was
unsatisfied by the quality and the same was immediately informed to
the respondent on a telephonic conversation.

6. Subsequently, the respondent assured the petitioner that they will

exchange the product in few days as the better quality of TMT Bars are
not in stock. The Respondent also assured the petitioner that they will
 supply the better quality of TMT Bars immediately when it will be
available.

7. That after many repetitive telephonic reminders the respondent did not
bother to respond the petitioner and the inferior quality of TMT Bars
which was supplied to the petitioner vide invoice dated 8th July 2020
and the TMT Bars were kept to the petitioner with compulsion.

8. That the petitioner received a reminder letter dated 03.11.2020 from

the respondent for payment of dues amounting to Rs. 7,03,503/-
(Rupees Seven Lakh Three Thousand Five Hundred Three), the
petitioner was surprised rather shocked by the unlawful act of the
respondent.

9. That the petitioner was stunned that that the respondent without any
proper justification and without any intimation charged penal interest
against the non payment of the remaining amount of Rs. 6,19,047/-
(Rupees Six Lakh Nineteen Thousand Forty Seven) only.

10. Moreover, the petitioner immediately communicated to the Respondent

regarding the aforesaid reminder letter of the Respondent/s. The
Respondent then told the petitioner that the product cannot be
replaced and the petitioner must pay the invoice amount along with
interest. The Petitioner then decided to not to make any payment and
till the dispute gets resolved by the respondent.

11. That in the month of August, the petitioner was induced by the
respondent to keep the inferior quality of TMT Bars and due to the
regular dilemma caused by the respondent, the petitioner issued a
blank dated cheque vide cheque no. 930362 by the banker of the
petitioner STATE BANK OF INDIA in favour of the respondent
amounting to Rs. 6,19,047/- (Rupees Six Lakh Nineteen Thousand
Forty Seven) and instructed the respondent to present the cheque for
encashment in the next month viz in the month of September.
12. That to the utter shock of the petitioner the aforesaid cheque was
immediately presented by the respondent for encashment and the said
was dishonoured with remark “Funds Insufficient”. The petitioner
requested the respondent on a telephonic conversation to not to take
any coercive action against the petitioner.

13. That a notice under section 138(b) dated 14.08.2021 was served upon
the petitioner by Advocate Bishnupada Giri, which causes mental
trauma and anxiety to the Petitioners. Thereafter, a proceeding under
section 138 read with section 141 of the Negotiable Instruments Act,
1881 as amended upto date was initiated against the petitioner and
still pending before the LD………… Metropolitan Magistrate Court at
Calcutta.

14. That a letter dated 09.09.2021 was served by the respondent upon the
petitioner regarding the invocation of Arbitration Clause as prescribed
in the terms and condition which was provided to the petitioner along
with the GST Invoice. A Copy of the letter was served to Advocate
Anirudha Mohanta, Ld Sole Arbitrator.

15. That it was clearly stated in the said terms and condition/ Agreement
dated 08.07.2020 that if any dispute arises by or in between the
parties herein the dispute shall be referred to the Sole Arbitrator
Vishnu Kumar Gupta, but the arbitration was referred to Sole
Arbitrator Anirudha Mohanta.

16. That such invocation of arbitration clause was acknowledged by the

Sole Arbitrator Anirudha Mohanta, but never seeks any Legal Demand
Notice from the respondents, as the Legal Demand Notice was never
served by the Respondent to the petitioner.

17. Hence, An Arbitration proceeding was also initiated against the

petitioner by the respondent being CASE NO: AM-SB-0002-2021
before the Ld Sole Arbitrator Anirudha Mohanta. A minutes of 1 st
 Sitting dated 11.09.2021 was served by the Ld Arbitrator to the
petitioner.

18. That upon receiving such minutes the petitioner was stunned that the
Sole Arbitrator was also changed by the respondents without any
intimation to the Petitioner. Hence, the petitioner did not contested the
Arbitration Proceeding and the petitioner puts strong objection of such
unprecedented approach of the Respondent.

19. That a minutes of the 2nd Sitting of the Arbitration Proceeding dated
20.09.2021 was served upon the petitioner along with the Statement of
Claim, where it the copy of agreement is not annexed but the Sole
Arbitrator did not bother or intended to enquire for such agreement.

20. The petitioner on or around February 9, 2022 received a photocopy of

the arbitral award dated February 01, 2022 through speed post with
acknowledgment which is published by Sole Arbitrator, Sri Anirudha
Mohanta, Advocate. This is hereinafter referred to as the “said Award”.
Upon perusal of the said award, the petitioner came to know that the
said award is passed by the aforesaid sole arbitrator in connection to
the disputes arisen in terms of the loan agreement dated July 08,
2020.

21. The petitioner states that the purported award passed by Sole
Arbitrator, Sri Anirudha Mohanta, Advocate is biased and not in
consideration of the actual state of affairs and/or on basis of the
purported records and evidence and same is not maintainable.

22. The petitioner submits that the petitioner still in dark that what is the
actual clause for arbitration and what is the mechanism followed by
the respondent while inviting the sole arbitrator to enter into reference.
Since the Sole Arbitrator Mr. Vishnu Kumar Gupta was appointed to
adjudicate the disputes between the parties herein as per the
Agreement but to adjudicate the proceeding Sole Arbitrator Sri
Anirudha Mohanta had been appointed as the Arbitrator. Hence, for
 the reasons aforesaid the initiation of the Arbitration reference was
bad.

23. The purported award is also not based on reason and same is initiated
on the ground of lack of jurisdiction and biased basis and the said
award in contrary to the transactions between the parties of the terms
actually agreed upon between the parties nor was the actual state of
neither affair.

24. Your petitioner states that from the said Award it appears that the
respondent has manipulated documents and thus its claim does not
have any footing whatsoever.

25. Your petitioner has genuine reasons to believe that the Arbitrator
appointed by the Respondent is totally unknown to the petitioner and
the said arbitrator is the own person of the Respondent and your
petitioner also denies the authority and/or jurisdiction of the said
Arbitrator, he was unable to raise challenge to raise challenge to the
authority and jurisdiction of the Arbitration before him.

GROUNDS

I. For that the present case u/s 138 read with section 141 has already
been initiated against the petitioner before initiating the arbitral
proceeding and thus the arbitral award is bad in law.

II. For that the petitioner has not received any Legal Demand Notice
before initiating the Arbitral Proceeding.

III. For that the petitioner never agreed to pay the penal interest on the
outstanding amount after a period of 30 days and the respondent
unlawfully charged penal interest from the petitioner.

II. For that the purported notice was never tendered to the petitioner nor
the petitioner ever disclaimed the said purported notice and as such
the purported award is liable to be set aside.

III. For that the petitioner never agreed to arbitration or never agreed to
appoint Sri Anirudha Mohanta Arbitrator/ Advocate as his Arbitrator.
IV. For that the purported agreement on basis of which Sri Anirudha
Mohanta Arbitrator/ Advocate has been appointed as Arbitrator is a
product of fraud.

VI. For that the Learned Arbitrator acted beyond authority and
jurisdiction and for the said reason purported award is liable to be
set aside.

VIII. For that the purported award is not based on reason as the said
purported award is based upon evidence which supports for passing
of the impugned award.

IX. For that the purported award has been passed mechanically, without
application of mind and for the same the purported award is liable to
be set aside.

X. For that the construction of the Arbitral Tribunal is not in conformity

with the agreement between the parties and for the said reason the
purported award is liable to be set aside.

XI. For that the petitioner never agreed for arbitration of Arbitrator Sri
Anirudha Mohanta, Advocate or never agreed that the Respondent
shall appoint/change arbitrator and as such the Learned Arbitrator
acted illegally and also beyond the authority conferring upon him and
for the said reason the purported award is liable to be set aside.

XIII. For that the Learned Arbitrator has not shown any reason as on what
basis the Learned Arbitrator came to the ultimate findings.

XIV. For that the finding arrived at by the Learned Arbitrator that the
Petitioner has committed default is on basis of no document and
evidence and for the said reason the purported award is liable to be
set aside.

XV. For that the Learned Arbitrator failed to understand that the
composition Arbitration Tribunal is bad in terms of the Clause of the
aforesaid Agreement and for the aforesaid reason the award is liable
to be set aside.

XVI. For that the respondent has not presented the correct statement of
claim before the Learned Arbitrator.
XVII. For that the conclusion arrived at by the Learned Arbitrator that the
petitioner is liable to make payment of Rs.8,41,568/- is totally
baseless and based on no reason and liable to be set aside.

XVIII. For that the charge of the interest and the cost as made by the
Learned Arbitrator is contrary to the terms and agreement made
between the parties on basis of no reason and same is liable to be set
aside.

XIX. For that the impugned award is otherwise bad, beyond jurisdiction,
result of non application of mind, made in a bias manner and for the
said reason the purported award is liable to be set aside.

XX. For that impugned award is not based on reason and same has been
passed by violating the principal of Natural Justice and is liable to be
set aside.

26. The petitioner submits that the petitioner has not filed any application
and / or applications before any court of law and / or tribunal to
challenge the impugned award. The petitioner further says that there is
no delay of two weeks of filing the present application and thus the
present application does not hit by law of limitation and as such this
Ld.Court may be pleased to entertain the same.

27. Your petitioner submits that the purported exparte award dated
February 01, 2022 passed by the Learned Arbitrator is bad in law and
should be set aside.

28. Your Petitioner states and Submits that the facts and circumstances
as stated above your petitioner prays that the purported exparte award
passed by the Learned Arbitrator on February 01, 2022 to be set aside
and the Respondent to be restrained from causing any effect or further
effect to the said purported exparte award.

29. Your petitioner states that the petitioner was not available and was out
of station for his personal family reasons and thus was unable to file
the instant petition within the time period of 3 months. After that the
 vacation of the court started hence the petitioner is filing the instant
petition on this….day of June, 2022.

30. Your petitioner stated the arbitration proceeding was initiated within
the jurisdiction of the Ld Court and the award was also passed within
the territorial jurisdiction of the Ld Court and the court has all the
power to adjudicate the proceedings.

31. Your petitioner states that equity and the preponderance of balance of
convenience and/or inconvenience rests overwhelmingly in favour of
the orders, prayed for herein, being passed. Your petitioner further
states that unless such orders are passed and/or directions given,
even in the interim and/or ad interim form/stage your petitioner will
be severely prejudiced and will suffer irreparable loss and injury, which
cannot be compensated for in money value.

32. This application is made bona fide and for the ends of justice.

In the above circumstances, your petitioner prays, most humbly, for the
following orders:

a) The Arbitral Award dated February 01, 2022 made and published by the
Sole Arbitrator, Sri Anirudha Mohanta be set aside;
b) Stay of operation of the impugned Award dated February 01, 2022
pending disposal of the instant application;
c) The respondents be restrained from executing and/or otherwise giving
any effect and/or further effect to the impugned award dated February
01, 2022 pending disposal of the instant application;
d) Interim and ad-interim orders in terms of prayers b) and c) above;
e) Costs of and incidental to this application be borne by the respondent;
f) Such other and/or further order or orders be made and direction or
directions be given as this Hon’ble Court deems fit and proper.

And for this act of kindness, as ever in duty bound, your petitioner shall ever
pray.
 VERIFICATION

I Masud Alam s/o ……………… being the Petitoner do hereby state that the
statements made in paragraphs are true to my knowledge and the rest are
my humble submissions before this Ld. Court.

I sign this verification at my Advocate office ………………………..

Verification duly signed

 AFFIDAVIT

I Masud Alam s/o ……………., aged about …… years, by faith Muslim, by

occupation business residing at ………….. do hereby solemnly affirm and say
as follows:

1. That I am the petitioner herein and as such am well acquainted with the
facts and circumstances of the above case and I affirm this affidavit.

2. That the statements made in paragraph 1 to 25 are true to the best of my

belief and knowledge, from para I to XX are the grounds, from Para 26 to 32
are my respectful submission the rest are my humble prayed before this Ld.
Court.

Solemnly affirmed by me ………. in the

Court House at Calcutta on this the day of
……. 2022.
 IN THE CITY CIVIL COURT AT CALCUTTA

BEFORE THE LEARNED JUDGE

MISC CASE NO. OF 2022

MASUD ALAM, proprietor of Ataur E-

Rickshaw and Engineering Work Shop
having registered address at Idgahapara,
Harishchandrapur, Malda, West Bengal-
732125

.. Petitioner

Versus

MICKY METALS LTD, a company within the

meaning of Companies Act, 2013, having its
registered office at 46/D, Muktaram Babu
Street, Kolkata- 700007.

.. Respondent

The humble petition/application on behalf of the Petitioner above named most

respectfully –

S H E W E T H:

1. That today the plaintiff is filling the above Misc Case.

2. That due to some unavoidable circumstances your petitioner is not able to
file the original documents and filling the Photostat Copy of the same and
undertake to file the same at the time of hearing and prayed that it is be
accepted by the Ld. Court.
3. That this application is made bonafide for the ends of justice.

Your petitioner humbly prays that your

Honour may be graciously pleased to
allow the petitioner/ plaintiff to file the
Photostat copies of the document with
the plaint and to passsuch further
order/orders as your Honour may deed
fit and proper.

And for this act of kindness, as ever in duty bound, your petitioner shall ever
pray.
 VERIFICATION

I Masud Alam s/o ……………… being the Petitoner do hereby state that the
statements made in paragraphs are true to my knowledge and the rest are
my humble submissions before this Ld. Court.

I sign this verification at my Advocate office ………………………..

Verification duly signed