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2020 SCC OnLine Bom 6362

In the High Court of Bombay

(BEFORE G.S. PATEL, J.)

Sanjay Pukhraj Bafna and Another … Petitioners;

Versus
Volkswagen Finance Pvt. Ltd. … Respondent.
Interim Application (L) No. 3117 of 2020 and Arbitration Petition (L) No. 3113 of
2020
Decided on September 14, 2020
Advocates who appeared in this case:
Mr. Kunal Katariya, with Mr. Ritesh Jain, i/b MJ Juris, for the Petitioner.
None for the Respondent.
The Judgment of the Court was delivered by
G.S. PATEL, J.:— Heard through video conferencing.
2. Heard.
3. The petition is under Section 34 of the Arbitration and Conciliation Act 1996. It
challenges an Award dated 30th July 2020 passed by a learned sole Arbitrator, one
Davender Kumar, an Advocate.
4. The Respondent has been served but is absent.
5. There is an accompanying interim application for stay. I am inclined to make a
time-limited order for stay of the operation, execution and implementation of the
Award for one overriding reason : the entire appointment appears to have been
unilateral, in direct contravention of the settled law on the subject including at least
three decisions of the Supreme Court, Perkins Eastman Architect DPC v. HSSC (India)
Ltd.;1 Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd.;2 and TRF
Limited v. Energo Engineering Products Ltd.3 I considered all these in Lite Bite Foods
Pvt. Ltd. v. AAI.4 An improper and impermissible appointment imperils any arbitral
order or award, for it goes to the root of the matter.
6. I note that neither in the petition nor in the interim application can I find a copy
of the principal loan agreement under which arbitration was invoked. Indeed the case
of the Petitioner seems to be that no copy of the loan agreement was ever made
available to the Petitioner. The arbitration clause (clause XVII) has been extracted in
the Award at page 28 (pdf page 3) of Volume 11. This says that the disputes and
differences are to be referred to a sole Arbitrator “to be nominated by” the
Respondent. This provision is clearly one that is covered by the decisions of the
Supreme Court.
7. I am also not convinced that proper notice was given to the Petitioners by the
arbitral tribunal.
8. Accordingly, there will be an ad-interim order in terms of prayer clause 18(i),
operative until 12th October 2020.
9. The Petitioners will give fresh notice of the petition by email and will also serve a
copy of the petition, all its annexures and the interim application in hard copy at the
address of the Respondent given in the Award itself. In addition, service is also to be
effected at the Haryana address of the Respondent.
10. List the matter on 9th October 2020.
11. This order will be digitally signed by the Private Secretary of this Court. All
concerned will act on production by fax or email of a digitally signed copy of this order.
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1
2019 SCC OnLine SC 1517.
2 (2019) 4 SCC 665.
3
(2017) 8 SCC 377.
4
2019 SCC OnLine Bom 5163.
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