Kotak Mahindra Bank v. Mr.S.Nagabhusan & Ors

NAVIN CHAWLA, J JANUARY 24, 2018/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP (COMM) 341/2017 Reserved on: 18th December, 2017 Date of decision: 24th January, 2018 KOTAK MAHINDRA BANK ……Petitioner Through: Mr. Kaushik Mishra, Advocate Versus MR.S.NAGABHUSHAN & ORS. ..... Respondents Through: Mr. Bheemsain Jain, Advocate CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 07.04.2017 passed by the Sole Arbitrator in Case no. ARB/DKS/34/2016 titled M/s. Kotak Mahindra Bank v. S.Nagabhushan & Ors. (hereinafter referred to as the 'Impugned Award'). The Impugned Award holds that as the petitioner was not a signatory to the Loan Agreement executed between the respondent nos. 1 and 2 on the one hand and respondent no. 3 on the other, the reference of the disputes to arbitration by the petitioner was not maintainable and the Sole Arbitrator does not have jurisdiction to adjudicate the disputes. 2. The case of the petitioner, in short, is that the respondent nos. 1 and 2 had approached respondent no. 3 Citifinancial Consumer Finance India Limited for obtaining a housing loan for purchase of an immovable property being site no. 76, Cascading Meadows 2 Khata No. 119/4, Page 2 Marangondanahalli Village, Bidra Halli Hobli, Banglore- 560036. Respondent No. 3 sanctioned a loan of Rs. 47.90 lakhs to the respondent nos. 1 and 2 and accordingly Loan Agreement dated 31.05.2007 was executed between the respondent nos. 1 and 2 on one hand and respondent no. 3 on the other. Some of the relevant terms of the loan agreement are reproduced herein under:- "10.2 Inspection, Assignment (a) xxxxxxx (b) The lender shall have the right to create charge over the property in favour of any bank, institution or body by way of security for any refinance facility or any loan availed of by lender from such bank, institution or body. Lender shall also have the right to transfer or assign the mortgage over the property in favour of any bank, institution or body in connection with any sale or transfer of the loan by lender to them 10.3 Securitization: (a) The lender reserves the right to assign/ sell/ securitize the loan with or without security, if any, in any manner by transferring and/or assigning or otherwise all its right, title and interest which the lender deems appropriate and the Borrower hereby expressly agrees that in that event, lender is not required to obtain any permission or put the Borrower to any notice. (b) The Borrower shall be bound to accept any such securitization and any such sale, assignment, or transfer and the Borrower shall accept such other party(s) as creditors exclusively or as a joint creditor with the lender, or as a creditor exclusively with the right to lender to continue to exercise all powers hereunder on behalf of any such other party. (c) Any cost in this behalf, whether on account of such sale, assignment or transfer or enforcement of rights and recovery of outstanding and dues shall be to the account of Page 3 the Borrower. The Borrower undertakes to pay to third parties the difference between the loan outstanding and the amount received by the lender in the event of transfer of the portfolio to a third party. xxxxxx 10.7 The Borrower agrees/confirms as follows: xxxxxx (h) In the event of any dispute or differences arising under this agreement including any dispute as to any amount outstanding, the real meaning or purport hereof ("Dispute"), such dispute shall be finally resolved by arbitration. Such arbitration shall be conducted in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996 or any amendment or reenactment thereof by a single arbitrator to be appointed by the lender. The venue of arbitration shall be at New Delhi and the arbitration shall be conducted in English language." 3. The respondent nos. 1 and 2 also created an equitable mortga