Dismissed

Spectrum Jewellery Ltd. v. Transcend Consulting India Pvt.Ltd

Bombay HC10 Jul 2014ARBP/1051/2013

Case brief

AI extract

What is this about?

The petitioner sought to set aside an arbitration award under Section 34. The dispute involved a settlement regarding HPCL premises. The court rejected the contention that a time discrepancy in a witness's evidence was material, comparing it to a cited case where the disputed clause was central. Finding the anomaly immaterial and the endorsement proven, the petition was dismissed.

What did the court decide?

The petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 was dismissed.

Spectrum Jewellery Ltd. Vs Transcend Consulting India Pvt.Ltd — Arbitration | Bombay HC (2014)

ARBP.1051/2013(902)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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ARBITRATION PETITION NO. 1051 OF 2013

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Spectrum Jewellery Ltd. ...Petitioner Vs. Transcend Consulting India Pvt. Ltd. ...Respondent

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Ms. Tanmayi Gadre a/w. Mr. Sunil Gangan, Ms. Kanshika Muthukumar i/b. RMG Law Associates, Advocates for the Petitioner. Mr. Minoo Siodia a/w. Ms. Jenita Lele i/b. Rutamji & Ginwala, Advocates for Respondent.

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CORAM : MRS. ROSHAN DALVI, J. DATED : 10^TH JULY, 2014

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ORDER :

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This is a petition for setting aside the award dated 30^th May, 2013 under Section 34 of the Arbitration and Conciliation Act, 1996.

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This dispute between the parties relates to a settlement in respect of the premises of Hindustan Petroleum Corporation Ltd. (HPCL) which was a convenience store licenced to the petitioner and franchised to the respondent by the petitioner. The respondent was to pay certain amounts as Minimum Monthly Guarantee (MMG). The parties were at dispute with regard to those payments.

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The parties agreed to refer the dispute to arbitration. An Arbitrator came to be appointed in a petition under Section 11 filed by the petitioner.

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ARBP.1051/2013(902)

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The possession of the premises of the convenience store was to be handed over to HPCL who had demanded it from the petitioner and which was to be obtained from the respondent. The parties are stated to have negotiated for such settlement. The negotiation is stated to have taken place on 8^th May 2009 and has been recorded on 13^th May, 2009 as a Memorandum of Settlement (MOS). The parties agreed that the respondent as a franchisee will retain possession of the stocks in the premises, take away all their goods and handover vacant possession of the store to the petitioner. They also agreed that the petitioner and the respondent will continue dialogue and discussion for 12 months from 8^th May, 2009 to settle the matter. The settlement was with regard to the extent of the amounts payable by the respondent to the petitioner which in turn had to be paid by the petitioner to the HPCL. The respondent claimed that it had paid the MMG which was disputed by the petitioner. The value of the goods in the store would, therefore, be considered by two parties who are businessmen.

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It is the case of the respondent that the entire dispute came to be settled two days after the MOS was entered into. This has been shown in an endorsement made at the foot of the MOS and signed by two witnesses on behalf of the respondent and one witness on behalf of the petitioner. One witness of the respondent and the witness of the petitioner had also signed the MOS on 13^th May, 2009. The endorsement is:

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“Final settlement between SJPL and Riviera as per my letter dated 14.5.2009. Keys handed over today”

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ARBP.1051/2013(902)

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The respondent's witness has signed and put the date on the endorsement. The respondent's other witness has only signed and the petitioner's witness has also only signed the endorsement.

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The witness of the respondent was an ex-employee of HPCL and known to both the parties. He was present at the time the MOS was executed on 13^th May, 2009. He is stated to have written a letter dated 14^th May, 2009 showing how the ultimate settlement would be effected. The possession was to be handed over on 15^th may, 2009 at 2 p.m to complete the formalities with HPCL. This has indeed been done at the time fixed. The document of handing over and taking over possession of HPCL, which was the formality to be complied, shows the time of handing over.

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This person was the most material witness of the respondent in the arbitration. His evidence has been led. He has been cross examined. The learned Arbitrator has accepted his testimony. The learned Arbitrator has observed that the cross examination does not show that his testimony is shaken. This would seal the fate of the parties. This Court cannot reconsider the evidence led.

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Counsel on behalf of the petitioner contended that in reply to the petition filed under Section 11 the respondent has not mentioned about the endorsement or the letter of the witness addressed to the petitioner. The petition is for appointment of an Arbitrator. It would be decided upon seeing an agreement entered into. It does not relate to the dispute

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ARBP.1051/2013(902)

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between the parties about the claim in arbitration. Hence it was rightly not relied upon in that petition.

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What has been argued on behalf of the petitioner is that the testimony of the respondent's witness was not acceptable because he deposed that he came to the premises in the morning whereas the document of handing over the possession shows the time after 2 p.m which was fixed by him in his letter stated to have been written to the petitioner. Counsel on behalf of the petitioner has relied upon the judgment of the single Judge of this Court in the case of Essar Oils Limited Vs. Central Warehousing Corporation & Anr in Arbitration Petition No.33 of 2011 of this Court dated 28^th January, 2014. The judgment relates to the claim for consideration upon what was the “Entire stock” and “available stock” for which a charge at a specified rate per metric tonne per month was to be computed. The Court in the petition under Section 34 of the Arbitration and Conciliation Act, 1996 observed about the interpretation of the clause and the handwritten insertions in the agreement which were claimed to have been made without authority. The Court considered the importance of the entire stock per month for which the expression “p.m” was inserted without authority. That aspect would determine the quantification of the claim. Hence the Court rightly observed that that aspect was the material aspect upon which the entire case hinged. Reliance upon that judgment to show a rather immaterial anomaly in the evidence being the time at which the witness came on the date of the settlement and the time which was given in his own letter and which was corroborated by the document showing the handing over the possession is misconceived. This anomaly in time is not considered to be

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ARBP.1051/2013(902)

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material by the learned Arbitrator. That observation cannot be interfered with. The endorsement which was denied has been proved by one of the signatories who has signed on behalf of the respondent. It is also seen to have been signed by the signatory of the petitioner, which is not denied. The case based only upon oral evidence with regard to that endorsement must, therefore, rest with the observation of the learned Arbitrator.

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11. The petition is, therefore, dismissed.

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(ROSHAN DALVI, J.)

Spectrum Jewellery Ltd. v. Transcend Consulting India Pvt.Ltd

Case brief

What is this about?

What did the court decide?

Spectrum Jewellery Ltd. v. Transcend Consulting India Pvt.Ltd

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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