Appointment of arbitrator
Ajay
(Querist) 03 May 2013
This query is : Resolved
i had a loan and we paid total but 2 instalment due,one instalment NBFC refusing to accept where as we paid by cash and that instalment reciept is missing from us but later reciept are with us.Beside this NBFC raise many more amount putting different head.Now loan was sanction in Bangalore and signed also in Bangalore but NBFC appointed arbitrator in Delhi and arbitrator without asking us accepted the appointment,now we want to change jursdiction from Delhi to Bangalore,what is remedy how can we change
Raj Kumar Makkad
(Expert) 03 May 2013
You move an application to the NBFC with copy to arbitrator to change him as he is out of jurisdiction.
Devajyoti Barman
(Expert) 03 May 2013
Reefer to an agreement. If there is such clause then the proceeding would happen there only.
Ajay
(Querist) 03 May 2013
tks for reply,we do not have agreement copy and we have send a letter yesterday to NBFC and Arbitrator both that juridiction is bangalore and also ask for loan agreement copy
ajay sethi
(Expert) 03 May 2013
if the agreement entered into by you with company mentions jurisdiction at delhi only then arbitration will be in delhi and not bangalore
Guest
(Expert) 03 May 2013
Contents of your agreement with the NBFC can be the deciding factor. By appointing an arbitrator of Delhi for a case of Bangalore, the intention of the company seems to cause exparte award by the arbitrator if you are unable to attend on hearing dates.
Ajay
(Querist) 03 May 2013
Arbitrator is appointed with out our consent,even march date letter serve to us on 24th april and arbitrator fixes date of 13th may to apear,it is ilegal in nature of law to manipulate and harras borrower by intentinally delivering the letter after one month of date mention.
If exparty order is passed by arbitrator than can we move higher court to request for stay
ajay sethi
(Expert) 03 May 2013
you had been served 20 days in advance . sufficient time for you to engage a lawyer . it is better you contest case before arbitrator rather than challenging award . it is necessary for you to file your reply before the arbitrator .
Ajay
(Querist) 03 May 2013
as per my knowledge 30days advance notice is compulsory for appointment of arbitrator from defendent and consent is must from defedennt within 30days and if defenedent does not respond than they can appoint arbitrator.further can we ask for another arbitrator from our side.
Devajyoti Barman
(Expert) 03 May 2013
Yes. Go to high court in your state and ask for injunction.
Ajay
(Querist) 03 May 2013
sir i have not seen agreement copy and if in agreement it is mention that arbitrator will be appointed in Delhi but if we do not get notice within one month even than can we move to bangalore high court?
Guest
(Expert) 03 May 2013
Dear Ajay,
It is useless to hit in the dark unless you are able to see the copy of the agreement. Agreement must be containing a clause of appointment of a sole arbitrator by the company in case of your failure. I am sure you must not have read the contents of the agreement before signing.
So, you need to take three-sided action right now, like:
(1) get a copy of the agreement from the company without losing any time;
(2) Write to the arbitrator to cause the company supply copy of the agreement for your perusal before fixing date of hearing; and
(3) Get injunction from the HC on valid grounds, as advised by Shri Devajyoti Barman.
Any delay on your part may be harmful to your own interest as the question of illegality cannot be assumed before going through the contents of the agreement and the arbitrator would be free to pronounce his award ex-parte if you don't participate in the arbitration proceedings. In that case it would become difficult for you to get arbitration award reversed.
Ajay
(Querist) 03 May 2013
tks for your perfect and fool proof advise and we will work accordingly
Guest
(Expert) 03 May 2013
You are welcome.
Ajay
(Querist) 04 May 2013
sir in agreement copy NBFC has put a clause of arbitration in Delhi and arbitrator decided by NBFC will be final,it is like east India company ruling and what they said we have to accpet,NBFC has office in bangalore even than they appointed arbitrator in Delhi,we are planning to file Writ in Bangalore Highcourt for transfer of arbitrator to bangalore
Guest
(Expert) 04 May 2013
No escape when you have signed the agreement. You are bound to attend the hearings at Delhi.
prabhakar singh
(Expert) 04 May 2013
I am in complete agreement with advice of Dhingra Ji!
Ajay
(Querist) 04 May 2013
sir please check the link,in this arbitration agreement was for delhi but later on arbitration was finalised in chennai,
http://indiankanoon.org/doc/1465429/
Ajay
(Querist) 04 May 2013
when we took loan we are in urgent need so we sign document where ever they ask if they put a clause for USA whether we have to go to USA?
Devajyoti Barman
(Expert) 04 May 2013
You can challenge the issue on jurisdiction but I regret that will have to be to same Arbitrator at Bangalore only.
Ajay
(Querist) 05 May 2013
sir NBFC has office in Bangalore hence they could appoint arbitrator in Bangalore but they intensely to harras did it,we want to shift to matter to bangalore,thats all
Ajay
(Querist) 05 May 2013
beside this for only 2 remaining instalment they appoint arbitrator which is beyond my knowledge what they think and why they did?
Guest
(Expert) 05 May 2013
Mr. Ajay,
That is only the urgency of loan, which compels the borrower to sign any type of agreement, which later on proves to be against the interest of the borrower. The question is not the jurisdiction for appointment of arbitrator or the remaining two installments, the question is default in repayment of loan. I have already expressed my doubt about the intentions of the company.
So, even if you challenge the appointment of the arbitrator in HC, I don't think that you would gain anything except losing your own money and time in litigation.
To get out of this tangle, better think about clearance of the remaining two installments, instead of losing extra money in the shape of cost of arbitration or litigation in HC as well as wasage of time. However, if you have some real solid ground for proving the agreement as illegal or void, you may go ahead for litigation challenging the appointment of arbitrator at Delhi or Chennai.
Rest depends upon your own wisdom.
Ajay
(Querist) 06 May 2013
sir we have to pay only two instalment and we have written letter to NBFC in march that we are ready to give april PDC for remaining two instalment even they refer matter to delhi arbitration,they have put many other charges,and inflated the amount,if we send a letter to arbitrator that we are ready to pay remaining two instalment but not other charges,that what can be consequences?,
ajay sethi
(Expert) 06 May 2013
in such a case you have to file your reply and contest the inflated claim .
since Dhingraji is in delhi appoint him as your consultant for fighting the case
Ajay
(Querist) 06 May 2013
my loan was sanction in 2006 but in 2009 we face severe reccession and got it restruture and during restructuring they have made many changes in terms and condition and also added my wife as join loan account holder etc.If there is no condition for arbitrator clause of delhi in original agreement but they change it to restructure loan than what are consequences
