Thanks a lot Dr G B.
Full Cronology is as under.
PSU invited Tender for Machine. In Tender Documents, Arbitration Clause is mentioned.
We participated in Tender while signing all Pages, in which Arbitration Clause was mentioned.
As per Arbitration Clause, the Arbitrator was to be appointed by GM of PSU, but proceeding will be as per provisions in IA&RA1996. Court Option was also available.
Order was recd by us
PSU reported few descripencies. MoM was signed mentioning all points, we also agreed to take-back Machine if same is rejected by PSU.
PSU never rejected same and continued using same for their production. Instead they asked us to submit Performance Bank Guarantee (PBG) to cover One Year Warranty, and other Documents, so that they can release complete Balance Payment.
Instead of releasing Balance Payment, they encased the PBG from our Bank, well before its Expiry Date. In PBG clearly mentions that same is against complete Balance Payment without Deduction. But PSU said they only are intended to recover Amount.
We send Legal Notice against unlawfull invocation, against which they send us Compensation Claim for the cause of defencincies of Machine.
PSU accepted our Machine, never rejected the Machine, never claimed any losses before invocation of PBG, encashed the PBG without even a notice.
After keeping mum for nearly 6 months, even after expiry of contract obligation period of 1 year (PBG expiry date), they suddenly wrote us about Appointment of Arbitrator, one sided, their own advocate (Sales Tax Practitioner)
PBG clearly mentioned our liabilities to fixed amount, for all or any type of losses and damages, within defect liability period of 12 months. PBG encased well before expiry, but even the PBG period also exprired.
Against our complain about unlawfull encashing of PBG, Hon FC Magistrate taking cognizence of Frauds ordered 156(3).
While we challanged Arbitrator, he never replied. We challanged Constitution of Arbitrator, but never replied. He gone ahead with Award, which was pre-set and pre-decided. He called first meeting, where we submitted challange, he passed award in 2nd meeting and accepted all claims as it is from PSU, exparte, and passed award. In award he mentioned that he got few post-acknowledgements which are suspected to be sent by us. Whereas we have recieved his interim Order rules in first hearing which proves his collusion and biasness with PSU. Predicting possible Set-Aside in Court, he denied his earlier signed and posted us. This was his misconduct.
We already moved Set-Aside in Hon Court well within specified Period.
Hence my querries are-
1. When Contract Obligation Period of 12months (Bank Guarantee Cover) is over (more than 3 months) Arbitration can be constituted (invoked) forcefully by one Party. There was no Arbitration Agreement and only Arbitration Clause. In this Arbitration unconstitutional and its Award illigle.
2. We have challanged Arbitrator, but was not successful, and resulted into Award. Can this is enough Ground for Set-Aside.
3. Against our Complaint of Fraud and Cheating, the FC Magistrate ordered 156(3) in same case. Will this be ground for us that Arbitration can not address Criminal Issued.
4. Is there any option available for us to go ahead with Legal Action against Arbitrator who was involved in Criminal Frauds and Conspiracy against in collusion with claimant, for which we have full evidences, even the hand-writing experts report and Post office record.
5. Against our RTI applications to learn standard Contract Terms, the PSU is writing false and non-serious information. Can this be prosecutable.