This petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 by the respondent before the Arbitral Tribunal, challenging the award passed by the second respondent herein, the sole Arbitrator, dated 30.7.2003.
2. The petitioner is stated to have been appointed Manager (Marketing and Customer Service) by the first respondent company as per the appointment order: dated 30.11.2000 and he also joined the service with effect from 1.1.2001. As per the clauses of appointment order, he was put on probation up to the last date of the month in which he completed six months service and during the probation period, his services can be terminated without assigning any reason. The probation is lable to be extended at the discretion of the management. It is also stated that the employment is terminable by one month notice or with one month salary in lieu of such notice. The petitioner was directed to execute an agreement on 14.2.2000, by which the first respondent company has agreed to sponsor him for a training on Techlink Products conducted by Techlink Storage Engineering Private Limited, commencing from 19.2.2001 to 18.3.2001.
2(a) The petitioner is stated to have completed the said training in Singapore and returned to Chennai in April 2001. It is stated that the petitioner had developed some physical pain in his shoulders due to cervical spondylitis and he was advised to take rest, It was in these circumstances, he was compelled to resign from his employment on medical grounds. The petitioner has submitted his resignation with effect from 1.6.2001. The first respondent has directed the petitioner to pay liquidated damages of Rs. 1,16,643/-. As per terms of agreement- Subsequently, on 2.8.2001, the first respondent through legal notice called upon the petitioner to pay the above sum, for which the petitioner gave a reply through his counsel on 17.8.2001, stating that since he was medically unfit to continue his employment, he submitted his resignation during the period of probation and therefore, there is no question of damages.
2(b) The first respondent, as per the terms, of agreement dated 14.2.2000, has appointed the second respondent as sole Arbitrator. The petitioner has filed his counter before the Arbitrator stating that the claim petition filed by the Deputy General Manager (HR) and Business Excellence on behalf of the first respondent mot maintainable since ha resigned during the period of probation on medical grounds and therefore there is no question of payment of liquidated damages. However, the plea of maintainability for want of proper authorization to Deputy General Manager was raised during evidence naci argument before the Arbitrator. It is the complaint of the petitioner that the second respondent Arbitrator has not taken note of the maintainability plea raised against the claim petition filed by the first respondent, but passed the award dated 30.7.2003, directing him to pay a sum of Rs. 1,16,643/- with interest at 18% p.a. from 1.6.2001.
2(c) The award is challenged by the petitioner on the ground that the Deputy General Manager who filed the claim on behalf of the first respondent was not authorized by the first respondent company by a duly passed resolution, and therefore, the claim petition is not maintainable, that the said Deputy General Manager is not authorized to maintain the dispute. He also relied upon the judgment of this Court in Swadharma Swarajya Sangha rep. by its Director Mrs. Lalitha Rathnam, Madras-1 v. Indian Commerce and Industrial Company Pvt., Ltd., having its Registered Office at No. 29, Broadway, Madras-1 (1998) 1 MLJ 724 : (1998) 1 LW 203 and stated that he was not authorized by the Board of Directors by way of resolution and therefore, he cannot file the claim on behalf of the company, and that within the period of probation viz., six months from the date of joining, the petitioner became medically unfit and the resignation was due to that reason and therefore, the payment of compensation is not contemplated as per Clause 14 of the agreement. The award is also challenged by the petitioner on the ground that the first respondent company has not proved the claim in the manner known to law and the award is liable to be set aside in view of the judgment in P.K.C.M. Palanichamy v. T.R. Subramaniam (1981) 2 MLJ 462.
3. In the counter affidavit filed by the first respondent, it is stated that the ground taken by the petitioner for challenging the award is beyond the scope of Section 34(2) of the Arbitration and Conciliation, Act, 1996. It is also denied that the Deputy General Manager was not authorized to represent the first respondent company. In any event, it is the case of the first respondent that the same was never raised or pleaded by the petitioner in the arbitration proceedings and therefore, it is not open to the petitioner to raise the same in the proceedings under Section 34 of the Act. It is also denied that simply because the petitioner was in probation period, the agreement clause did riot bind the petitioner. It is denied that the resignation of the petitioner was due to ill-health. It is the case of the first respondent in the counter affidavit that as per Clause 14 of the agreement dated 14.2.2000, it is the serious bodily infirmity resulting in. physical immobility which can alone be an exemption, which is in the nature of force majeure, that is, a person with serious injuries is totally incapacitated from employment, and it is not the case of the petitioner that he was having physical disability. It is also stated that by virtue of resignation by the petitioner the respondent company incurred loss. It is also stated that the agreement itself contains a clause for liquidated damages in case of breach and therefore, the award can not be interfered under Section 34 of the Arbitration and Conciliation Act, 1996.
4. It is the main contention of Mr. P. Gopalan, learned counsel for the petitioner that the Deputy General Manager (HR) of the first respondent was never authorized by tins first respondent company by way of resolution and therefore, the claim itself is not maintainable. In respect of the point that during the course of award proceedings, the petitioner his not chosen to raise the same, but raise the same only at the stage of evidence and advancing arguments, his contention is that the witness examined on the side of first respondent had agreed to produce such a resolution and in spite of the same, the resolution was not produced and even during the pendency of the present proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (in short, “the Act”), the first respondent, having undertaken to produce the resolution, has not produced the same. It is his submission that the resolution goes to the root of the matter and even then, the same is not produced and therefore, it should be construed that the Deputy General Manager (HR) was not authorized to represent the company before the Arbitral Tribunal to make the claim. According to him, this being a legal issue can be raised at any time and it is a question of law since under the Companies Act, 1956, when the first respondent has to act, it must be under a proper resolution. He would rely upon the judgment State of Rajasthan v. Kalyan Singh (dead) by his Legal Representatives AIR 1971 SC 2018 : (1972) 4 SCC 165, Swadharma Swarajya Sangha rep. by its Director Ms. Lalitha Rathnam, Madras-1 v. Indian Commerce and Industrial Company Pvt., Ltd., having its Registered Office at No. 29, Broadway, Madras-1 (supra) and Sri Arthanareeswarar of Tiruchengode v. T.M. Muthuswamy Padayachi and Others (2003) 1 LW 386 to substantiate his contentions.
5. On the other hand, it is the case of Mr. S. Ravi, learned counsel appearing for the first respondent company that the proceedings before the Arbitrator is not a civil proceeding and the applicability of Civil been diluted by virtue of Sections 23 and 24 of the Arbitration and Conciliation Act. It is his submission that in fact, on behalf of the first respondent, the Deputy General Manager (HR) has issued notice to the petitioner informing him about the appointment of second respondent as sole Arbitrator and the petitioner has never objected to the same, but participated in the arbitration Proceedings without any whisper. Therefore, it is his contention that under Section 23 of the Act, the petitioner is not entitled to raise the dispute now. He would rely upon a judgment of the Supreme Court in United Bank of India v. Naresh Kumar AIR 1997 SC 3 : (1996) 6 SCC 660 : (1997) 2 MLJ 1 to substantiate his contention that when the company prefers a claim through a responsible officer, it should be presumed that it should be authorized. He would submit that in the proceedings under Section 3 of the Act, there should be a patent illegality for interference by this Court. He would rely upon the judgment in Brick Steel Enterprises v. Superintending Engineer, PWD Salem, (2007) 1 MLJ 488 : 2006 (5) CTC 519 apart from Ganesh Benzoplast Ltd., Mumbai v. Sundaram Finance Ltd., Chennai 2 (2002) 2 MLJ 146.
6. First of all, it is not in dispute that on behalf of the first respondent company, which is a company registered under the Companies Act, 1956, the notice for reference to arbitration was sent by the Deputy General Manager (HR), Mr. P. Ravichandran to the petitioner and to the said latter, there was no reply from the petitioner. Ultimately, the claim statement was filed by the said Mr. P. Ravichandran, Deputy General Manager (HR) before the Arbitrator on behalf of the company on 27.5.2002. The claim statement has been filed on behalf of the first respondent which was incorporated under the provisions of Companies Act, 1956, having its registered Office at Chennai.
7. The petitioner who has filed the counter statement to the claim made by the first respondent company, has admittedly not chosen to raise the maintainability of the claim made by the Deputy General Manager (HR) of the first respondent company. On the other hand, it is admitted that for the legal notice issued on behalf of the first respondent company dated 2.8.2001 a reply was sent and admittedly, even in that reply he has not chosen to deny the agreement and in fact in the said reply notice dated 17.8.2001 sent through the counsel, the petitioner has chosen to give different reasons for resignation in the following words:
“My client states that due to your clients undesirable methods to entrap him in the service under false agreement, my client tendered his resignation on 1.6.2001. Thus your clients claim is not leally justifiable.”
However, in the counter statement filed before the Arbitrator, the petitioner has chosen to state that h was suffering from severe cervical spondylitis and due to acute pain he could not sit even for one hour to attend his work. It is only during the time of argument for the first time, the petitioner raised that company should produce the resolution of the Board in authorizing the Deputy General Manager to file the claim.
8. Under the agreement entered between the petitioner and the first respondent company dated 14.2.2000, by which the petitioner being an employee was sponsored for a training programme at Singapore during the period between 19.2.2001 and 18.3.2001. It is stated in Clause 10 that on completion of training the petitioner (employee) agreed to return to India and serve under the first respondent company for two years. Under Clause 14 of the said agreement, the petitioner has also agreed that in the event of any breach, he would pay an amount of Rs. 1 lakh being the liquidated damages to the first respondent company and the said amount of Rs. 1 lakh has been arrived at as expenses incurred by the first respondent company by way of air ticket, oversea allowances, visa expenses, etc. for deputing the petitioner for the training.
9. The said agreement in Clause 13 also provides for reference of dispute to a sole Arbitrator at the instance of the employer and the place of arbitration is Chennai. In the appointment order dated 30.11.2000, by which the petitioner was appointed as Manager (Marketing and Customer Service) of the first respondent company, the petitioner was directed to report duty before the Deputy General Manager (Sourcing Logistics), Clause 14 of the appointment order states as follows:
“14. You will be on probation upto the last date of the month in which you complete six months of service. Your services are liable to be terminated at any time during probation or completion of probationary period without assigning any reason whatsoever. The period of probation will be liable or such extension at the sole discretion of the Management. Unless an order in writing confirming your services are issued, you will not be deemed to have been confirmed.
The employment is terminable by one month notice or one months salary in lieu of notice period on either side.”
Thus, it is made clear that the probation, can be extended.
10. It is relevant to point out that under the agreement dated 14.2.2000, in Clause 14 it is made clear that in case where there is medical cause conferring bodily infirmity making the employee physically unfit to fulfil the conditions, the clause in respect of liquidated damages may not apply. In any event, in the present case, after hearing the parties and giving opportunity to both, the learned Arbitrator has decided that the first respondent company is entitled for liquidated damages for various reasons and this Court cannot interfere and set aside the findings, unless it is proved that the arbitration agreement is void, that no proper notice of appointment of arbitrator was given, that the party was unable to present his case before the Arbitrator properly, that the award deals with a dispute which was not contemplated and hence, it is beyond the scope of arbitration and that the Arbitral Tribunal was not constituted in accordance with the agreement as contemplated under Section 34 of the Act. Of course, in cases where the arbitral award is opposed to public policy, this Court can interfere. But, on the finding of the Arbitrator about the liability to pay liquidated damages, it is not for this Court to interfere under Section 34 of the Act.
11. Further, the point raised by the petitioner relating to maintainability of the claim made by the Deputy General Manager (HR) of the first respondent company is liable to be rejected on the sole ground that the first respondent company is registered under the Companies Act, 1956, and inasmuch as it is not in dispute that the Deputy General Manager (HR) is an Officer of the first respondent company, the authority of-he said. Deputy General Manager to make or substantiate the claim on behalf of the first respondent company can be presumed, especially in the circumstance that the company has not raised any objection about the conduct of the Deputy General Manager (HR) in making and proceeding with the claim against the petitioner.
12. The Arbitration and Conciliation Act, 1996, is an unique Act, intended for the purpose of settlement of disputes which are otherwise than through Court of law. The Act while minimizing the supervisory role of Courts in the arbitral process provides, that every arbitral award is enforced in the manner a decree of Court is enforced. The idea of the Act is to minimize the rigorousness of civil litigations including the procedural and technical aspects and for arriving at a decision in an easy manner. That is the reason why when a party to an agreement raises dispute, he is entitled to refer the same to arbitration. In the presence of arbitration clause and then the matter is referred to Arbitral Tribunal within the time limit agreed upon between the parties, the claimant has to prove his case and the respondent has to present his defence.
13. It is for the parties to decide by agreement whether to have oral hearing or the proceeding should be conducted based on documents etc. and thereafter the arbitration proceedings should be conducted under Sections 23 and 24 of the Arbitration and Conciliation Act, 1996, which enable the parties and the said Sections are as follows:
“23. Statements of claim and defence.-
(1) Within the period of time agreed upon by the parties or determined by the arbitral Tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relied or remedy sought, and the respondent has to state his defence in respect of these particulars, unless the parties have otherwise agreed, as to the required elements of those statements.
(2) (2) The parties may submit with their statement all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unions the arbitral Tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.
24. Hearings and written proceedings.-
(1) Unless otherwise agreed by the parties, the arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence, of for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials: Provided that the arbitral Tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral Tribunal for, the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to the arbitral Tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral Tribunal may rely in making its decision shall be communicated to the parties.
14. The proceedings before the Arbitrator is distinct and different from that of a suit-in-situated before a competent Court of jurisdiction. Of course, the term ‘suit’ is not defined anywhere in the Code of Civil Procedure. As per BLACKS LAW DICTIONARY, the term suit is defined as follows:
“Suit is any proceeding by a party or parties against another in Court of law.”
An Arbitral Tribunal is not a Court of law even though the award of Arbitrator can be enforced in the same manner a decree is enforced, as per Section 36 of the Arbitration and Conciliation Act, 1996, which is as follows:
“36. Enforcement: Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.”
Except for the purpose of enforcing the award as a decree by following the procedure in the Code of Civil Procedure, there is nothing in. the Arbitration and Conciliation Act, 1996 to denote that the proceedings before the Arbitration Tribunal are governed by the provisions of the Code of Civil Procedure.
15. In Mst Gulab Bai and Others v. Manphool Bai AIR 1962 SC 214, a Full Bench of the Supreme Court held that the term ‘suit’ cannot be liberally construed by taking note of the legislative history of the principle of res judicata. The operative portion of the judgment is as follows:
“6. The word “suit: has not been defined in the Code; but there can be little doubt; that in the context the plain and grammatical meaning of the word would include the whole of the suit and not a part of the suit, so that giving the word “suit” its ordinary meaning it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. The argument that there should be finality of decisions and that a person should not be vexed twice over with the same cause can have no material bearing on the construction of the word. “suit.” Besides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word “suit” that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word “suit” should be liberally construed cannot be accepted. This position would be abundantly clear if we consider the legislative history and. Background of Section 11.”
It was further held as follows:
“12. ……..In other words, it is the whole of the suit which should be within the competence of the Court at the earlier time and not a part of it. Having regard to this-legislative background of Section 11 we feel no hesitation in holding that the word “suit” in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it.”
16. In Pandurang Ramachandra Mandlik (since deceased by his Lrs) and Another v. Smt. Shantabai Ramachandra Ghatge and Others AIR 1989 SC 2240 while dealing with the principle of res judicata under Section 11 of the Code of Civil Procedure in the context of the proceedings initiated under Bombay Tenancy and Agricultural Lands Act, 1948, which was a summary proceeding wherein the tenancy authorities dismissed the application under Section 29(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, the Supreme Court; held that under Section 26 C.P.C a suit is instituted by the presentation of plaint and therefore, an application filed to the Mamlatdar under Section. 29(2) of the above said 1948 Act cannot be deemed to be a former suit. It was also hold that in a suit, the litigation between the parties is decided in a Court of justice and if a decision is taken by the authority in an application following summary procedure, the same cannot be defined as a suit. The relevant portion is as follows:
“18. It is true that Section 11 is now made applicable by the explanations and interpretation to certain proceedings giving more extensive meaning to the word “suit.” In its comprehensive sense the word suit is understood to apply to any proceeding in a Court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between parties in a Court of justice the proceeding by which the decision of the Court is sought may be a suit. But if the proceeding is of a summary nature not falling within the definition of a suit, it may not be so treated for the purpose of Section 11. In the absence of the details of the proceedings concerned in the instant case, it has not been possible for us to hold that it was of the nature of a suit and not a summary proceedings. Besides, assuming the Mamlatdar in deciding the application in 1962-63 to have been a Court of exclusive jurisdiction for the purpose of Section 11 C.P.C. its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that decision.”
17. It is also relevant at this stage to refer to the judgments of Division Bench of this Court consisting of S. JAGADEESAN and P.D. DINAKARAN, JJ. (as Their Lordships then were) in Ganesh Benzoplst Ltd. v. Sundaram Finance Ltd. (supra), wherein it was held that while the Arbitration Act, 1940 in Section 41 contemplated applicability of Code of Civil Procedure, the same was consciously deleted by the law makers in the Arbitration and Conciliation Act, 1996. While referring to the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, the Division Bench held as under at pp. 149 & 150 of MLJ:
“16. A perusal of Section 9 would make it clear that it is neither similar to Order 38 Rule 5 nor Section 18 of the Arbitration Act, 1940. When that be so, the bulk of the judgments relied upon by the learned senior counsel for the appellants is of no assistance to decide the issue in this appeal.
18. From the above ration decided of the Apex Court, it is clear that if only the statue requires a plea should be in a particular form, then such requirement is strictly to be complied with. If we have a look at Section 9 of the Arbitration and Conciliation Act, 1996 to find out whether it requires any averment in the affidavit filed by the party, seeking the interim relief, as contemplated under either Order 38 Rule 5 C.P.C., or under Section 18 of the Arbitration Act 1940, in our view, it is not so. When Section 9 of the Arbitration and Conciliation Act, 1996 do not specifically require any averment in any particular form, as contemplated either under Order 38 Rule 5 C.P.C., or under Section 18 of the Arbitration Act, 1940 there is no need for the first respondent herein to make such averment in the affidavit filed in support of the application seeking a prohibitory order.
20. Apart from the above reason, as already pointed in Section 41 of the Arbitration Act, 1940 which contemplates the applicability of the provisions of C.P.C., for the arbitral proceeding has been deleted in the New Act i.e., The Arbitration and Conciliation Act, 1996. In such circumstance, we are unable to appreciate the contentions raised by the learned senior counsel for the appellant and consequently no interference is called for in the orders of the learned Judge.”
18. In such view of the matter, Order 29, Rule 1 of the Code of Procedure has no application to the proceedings pending before the Arbitrator. Order 29, Rule 1 C.P.C contemplates that any suit to be filed by or against a Corporation should be supported by pleadings signed and verified on behalf of the Corporation either by the Secretary or by a Director who is able to depose the facts of the case. It was, in that context, a Division Bench of this Court in Swadharma Swarajya Sangha rep. by its Director Mrs. Lalitha Rathnam, Madras-1 v. Indian Commerce and Industrial Company Pvt., Ltd., having its Registered Office at No. 29, Broadway, Madrs-1 (supra) taking note of the contents of an article in the Memorandum of Association of a company, held that a suit filed without any resolution by the company is not maintainable. It was held as follows at p. 724 of MLJ:
“2. A reading of the above article leads to an inference that it is the Directors who should jointly authorize to decide to institute or institute a suit. Concedingly, the Directors have passed no resolution deciding to institute a. suit binding the institution with the result of the suit. The suit having been filed without there being any resolution and as the Corporation can only file a suit if there is a resolution for the same, the suit was not filed by an authorized person under Order 29, Rule 1 of the Code of Civil Procedure. The suit as such is not maintainable.”
19. In such circumstances, it is not possible to accept the contention of the learned counsel for the petitioner that the arbitral proceedings initiated on behalf of the first respondent company by the Deputy General Manager is not maintainable, especially in the circumstance that the first respondent company being a corporate personality and a legal person who is only affected by such raising of dispute before the Arbitrator has not raised any objection. In United Bank of India v. Naresh Kumar (supra) while referring to Order 6, Rule 14 of the Code of Civil Procedure which requires the pleadings to be signed by the party and his pleader and also referring to Order 29, Rule 1 C.P.C which relates to a suit to be filed by or against a Corporation, the Supreme Court held that in respect of a suit by and against the company which is a corporate entity, a. direction can ha issued to produce document authorizing the Director or to let in evidence to prove the ratification. The operative portion of the judgment is as follows at p. 2 & 3 of MLJ:
“9. In case like the present where suits are instituted or defended on behalf of a public corporation, public interest; should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure; a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person as to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
11. The Courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the Court below were still unable to come to this conclusion, then either of the appellate Courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a Court in order to ensure that injustice is not done by rejection of a genuine claim.”
20. A reference to the award also makes it clear that in fact the Arbitrator has found that while cross-examining P.W.1 Mr. P. Ravichandran, the question of his authority to file the claim was raised for the first time, for which the said witness deposed that he was authorized to file the claim, and in spite of the same, the petitioner did not take any steps to produce the authorization and there was also no notice issued to the first respondent to produce such a document and therefore, the Arbitral Tribunal, in my view, has correctly found that there is no need to discuss about this question and held that the claim by the company, is maintainable.
21. In these circumstances, it is not possible to accept the contention of the learned counsel of the petitioner that the award has to be set aside. Certainly, the facts and circumstances of the case do not come within the ambit of Section 34(2) of the Arbitration and Conciliation Act, 1996, for this Court to interfere with the award and hence, the present O.P. filed with under Section 34 of the Act deserves to be dismissed and the same is dismissed. No order as to costs.
Application No. 5240 of 2008 in Tr. O.P. No. 302 of 2007
Per P. JYOTHIMANI, J.
The application is filed for the purpose of amending the name of the first respondent company, from M/s. Sembcorp Logistics (India) Pvt. Ltd., to M/s. Toll (Indira) Logistics Private Limited.
2. The name of the first respondent company has been changed as per the certificate issued by the competent authority as per Section 21 of the Companies Act, 1956. A fresh certificate of incorporation has been issued by the Registrar of Companies on 13.4.2007, which is filed before this Court.
3. Considering the circumstance that it is only a change in the name of the first respondent company without change in the constitution, as duly certified by the authority under the Companies Act, the application stands ordered.