Q: I retired as a medical representative from the services of a pharmaceutical company which has its headquarters in Mumbai. I had completed more than 38 years of service. However, many of my dues haven’t been cleared. What action can I take against the company? If any legal action is to be taken then what would be the time frame?
Pranab Kumar Kundu
A: Your obvious remedy would be to file a suit for recovery of your dues in the appropriate civil court in Mumbai. Normally, a suit is a long drawn process and it may take anything between two to five years or even more for a decree to be passed in the suit if you are able to prove your case. Then there would be the question of various rounds of appeals before the higher courts ending with the Supreme Court of India. If in your view the company “cannot have any defence to your claim and if you are in a position to establish the same,” you may apply for final judgement and decree in the suit by following a summary procedure without going into a full-fledged trial. This would abridge the time frame to some extent.
However, if the company can’t dispute your claim then it would be better for you to file a winding up petition against the company in the Mumbai High Court after serving statutory notice on the company in terms of the provisions of Sections 433, 434 and 439 of the Companies Act. This would be a much speedier procedure. However, if the company is able to raise a bona fide dispute as regards your claim, your winding up petition will fail and you will be relegated to filing a suit. If your dues include provident fund and gratuity, you may also approach the authorities specified in the Employees Provident Fund & Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act 1972 for recovery of your dues on those accounts.
Q: I am a partner in a firm involved in civil construction. A public sector construction company sub-contracted the work of building a portion of a bridge in Maharashtra to our firm. We completed the work successfully but the construction company withheld substantial payments alleging defects in the work. Our dispute was referred for arbitration and the same is pending although more than three years have elapsed since then. The arbitration is being conducted in Mumbai. We are a Calcutta based firm and it is becoming difficult for us to participate in the arbitration in Mumbai. Is there any law by which we can insist that the arbitration be held in Calcutta? Further, doesn’t the law prescribe a maximum time period within which an arbitration proceeding has to be concluded?
Name withheld
A: Unfortunately, the Arbitration and Conciliation Act, 1996, doesn’t specify a time period within which an Arbitral Tribunal has to make and publish an award. You may, however, request the arbitrators to expedite the proceedings in view of the prejudice you are suffering.
Also, if the arbitration clause specifies Mumbai as the venue of arbitration, there is little you can do unless the other party agrees to change the venue of arbitration. If the arbitration clause doesn’t stipulate any venue then the Arbitral Tribunal has the discretion to fix the venue having regard to the circumstances of the case including the convenience of the parties. In that event, you should request the tribunal to shift the venue to Calcutta or at least to hold some of the arbitration meetings in Calcutta.
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