TMI Blog2018 (2) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in IA No.5078/2017 is that the terms recorded in the order dated 17th March, 2017 “are not in line with the instructions given by the petitioner to its erstwhile counsel, is obviously wrong and unacceptable”. It is not for this Court, in an appeal, to go behind the terms duly recorded by the Single Judge. A perusal of the order sheets in the OMP 530/2016 clearly reveals that the appellants were always represented by their counsel and in fact a Senior Advocate on most occasions. Order sheets also reveal that the discussions were continuously taking place during the hearings of the OMP 530/2016. After due consideration and deliberations, the respondent had agreed to terms which were less favourable to it. The award was to be modified. It is now not open to the appellant to resile from the terms as recorded by the Single Judge. This would be unjust and unfair. Order dated 17th March, 2017 is lawful and no reason exists for setting aside the same - appeal dismissed - decided against appellant. - FAO (OS) COMM 121/2017, CM APPLS. 20780/2017, 20782/2017 & 27338/2017, FAO (OS) COMM 122/2017 & CM APPL. 20905/2017 (stay) - - - Dated:- 13-2-2018 - MR. SANJIV KHANNA AND MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. Thereafter, ₹ 4.83 crores, in the form of fixed deposits, was given by the first appellant to the respondent as cash collateral. The FDRs were refundable only on final closure of loan amounts or maturity period of the cash collateral. In this manner and as per agreed terms, the full loan amount of ₹ 11.50 crores was released to the first appellant, and the first appellant started paying instalments calculated on the sum of ₹ 11.50 crores. It is admitted that 69 post-dated cheques of EMIs were furnished, which shows that the full amount as was agreed between the parties was paid to the first appellant. 4. The respondent states that in spite of demands and reminders by the respondent, the appellants defaulted in the repayment. The post-dated cheques issued by the first appellant stood dishonoured, and even after issuance of notices under Section 138 of the Negotiable Instruments Act, 1881, the appellants failed to repay the loans. 5. On the other hand, the appellants case is that on 26th May, 2010 the respondent paid ₹ 2 crores, ₹ 1.80 crores, and ₹ 1.20 crores i.e., a total of ₹ 5.20 crores out of the sanctioned loan amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till date. This Tribunal awards the cost of arbitration proceedings amounting to ₹ 4,60,500/- (Rupees Two Lacs Only), including the aforesaid cost and the cost of stamp paper i.e. 2,60,.500/- for making this Award, In favour of the Claimant which the. Respondents shall pay along-with award amount jointly and severally. Challenge to the award 7. The award was challenged by way of a petition under Section 34 of the Arbitration Conciliation Act, 1996 ( A C Act , for short). In the said petition, on 17th March, 2017, the Single Judge passed the following order: 1. The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act'). 2. There is no dispute as to the amounts paid to the petitioner. The only controversies raised are with regard to deposit of cash collateral and the penal interest. After some arguments, the parties have arrived at a settlement. The respondent is now agreeable to treat the payment of cash collateral by the petitioner as repayment of the principal amount. Further, the respondent has also given up its claim for penal charges at the rate of ₹ 2 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was thrashed out at over a period of three hearings. The terms of settlement as agreed to between the parties was finally recorded in the order passed on 17.03.2017. As stated above, this was after much discussion and at the instance of the petitioners. The petitioners agreed to pay the interest at the rate of 18% per annum compounded with monthly rests on reducing balance till the date of the award and 18% simple interest thereafter. 11. The terms of the settlement were recorded in the order dated 17.03.2017 after much discussion. The learned counsel for the parties took time to quantify the exact amount payable on the basis as indicated in order dated 17.03.2017 and the matter was adjourned to 24.03.2017. On that date i.e. 24.03.2017, the learned counsel for the respondent submitted a calculation sheet indicating the amount payable, which was examined in the court and was taken on record. And, the petition was disposed of with consent of parties. 12. It is apparent from the above that the petitioners seek to now further reduce its liability and resile from the agreed terms. The petitioners have therefore engaged a fresh set of advocates and have filed the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. The contention was based on equity. iii. The respondent was entitled to claim penal charges @ ₹ 2 per ₹ 1000 per day. iv. Both parties has conceded and given concessions before the Court. The amount disbursed, it was agreed, would be determined after reducing the amount of cash collaterals i.e. the amount would be the actual disbursement made to the appellants. The appellants were benefitted. v. It was agreed that interest @ 18% per annum with monthly rest would apply till the date of the award. Again the appellants benefited and gained as penal interest was not payable. vi. For periods post the award, simple interest @18% per annum till the date of payment was payable. This was advantageous and beneficial for the appellants. vii. The appellants, on all the dates of the hearing, were represented duly by Senior Counsel and other counsels, who confirmed to the Court that the terms of the settlement and concessions recorded were duly informed to and accepted by the representative of the appellants. viii. Consent order in fact had resulted in more favourable terms to the appellant than what would have been payable as per the award/agreement. Amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concessions given and consent recorded, were never given by the appellants, was clearly an afterthought and wrong. 15. Under such circumstances, it is not for this Court, in an appeal, to go behind the terms duly recorded by the Single Judge. A perusal of the order sheets in the OMP 530/2016 clearly reveals that the appellants were always represented by their counsel and in fact a Senior Advocate on most occasions. Order sheets also reveal that the discussions were continuously taking place during the hearings of the OMP 530/2016. After due consideration and deliberations, the respondent had agreed to terms which were less favourable to it. The award was to be modified. It is now not open to the appellant to resile from the terms as recorded by the Single Judge. This would be unjust and unfair. 16. The legal position on Order XXIII Rule 3 of the CPC is quite well settled. In Gurpreet Singh (supra), the Supreme Court had observed: 11..... . The word satisfies denotes satisfaction of the claim of the plaintiff wholly or in part, and for this there need not be an agreement in writing signed by the parties. It is open to the defendant to prove such satisfaction by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the second part of Order XXIII Rule 3 of the CPC, which does not require a compromise in writing and signed by the parties. Rajinder Singh (supra) was upheld by the Supreme Court in Pushpa Devi v. Rajinder Singh AIR 2006 SC 2628 where it was observed as under: ...The above view was reiterated in Jineshwardas v. Jagrani AIR 2003 SC 4596 . Therefore, the words 'by parties' refer not only to parties in person, but their attorney holders or duly authorized pleaders. 19. Let us now turn to the requirement of 'in writing' in Rule 3. In this case as noticed above, the respective statements of plaintiffs' counsel and defendants' counsel were recorded on oath by the trial court in regard to the terms of the compromise and those statements after being read over and accepted to be correct, were signed by the said counsel. If the terms of a compromise written on a paper in the form of an application or petition is considered as a compromise in writing, can it be said that the specific and categorical statements on oath recorded in writing by the court and duly read over and accepted to be correct by the person making the statement and signed by him, can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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