HARIKISHAN SHANKARJI GOGIKAR Vs. RELIANCE HOME FINANCE LTD

JUDGEMENT

(1.) By this petition filed under section 34 of the Arbitration and Conciliation Act, 1996, the petitioners have impugned the arbitral award dated 10th March, 2014 passed by the arbitral tribunal directing the petitioners to pay a sum of Rs.25,36,675.17 as per the foreclosure statement with interest thereon @ 12.50% per annum from 1st June, 2013 till payment or realization and also additional cost of Rs.7,500/-.

(2.) Learned counsel appearing for the petitioners invited my attention to the claim statement filed by the respondent and would submit that the entire claim before the arbitral tribunal made by the respondent in the statement of claim was for enforcement of mortgage as per foreclosure statement. Reliance is placed on the judgment of Supreme Court in case of Booz Allen and Hamilton Inc. vs.SBI Home Finance Limited and others, 2011 5 SCC 532. It is submitted that since the action of the respondent in the arbitral proceedings was action in rem, the learned arbitrator could not have decided such proceedings and the entire award was without jurisdiction. Learned counsel also invited my attention to the clauses 17 and 19 of the loan agreement and it is submitted that the clause 17 and clause 19 would operate for two different purposes. He submits that insofar as reliefs for redemption of mortgage is concerned, the same could fall only under clause 19 and not under clause 17 and thus the arbitral tribunal did not have jurisdiction to entertain such claim.

(3.) The next submission of the learned counsel for the petitioners is that though the petitioners have made payment of Rs.10,30,120/- to the respondent, the arbitral tribunal has not considered the said payment in the impugned award. He submits that the arbitral tribunal could not have permitted the respondent to withdraw their reliefs insofar as redemption of mortgage of the property is concerned on the oral application. It is submitted that in any event the arbitral tribunal ought to have given directions to the respondent to return the original documents of the petitioners which were deposited by the petitioners with the respondent at the time of creation of mortgage.