Delhi High Court
Mr. Paramjit Singh And Ors. vs Mrs. Satyawati And Ors. on 12 July, 2002
Author: Sharda Aggarwal
Bench: Sharda Aggarwal
JUDGMENT Sharda Aggarwal, J.
1. This order shall dispose of the objections under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) filed by the petitioners for setting aside the award dated 2nd May, 2001 passed by Justice Lokeshwar Prasad, the Arbitrator appointed by the Court with the agreement of the parties in Suit No. 1575/90 titled "Ram Sigh v. Smt. Devki Devi and Ors.".
2. Before dealing with the objections to the award, it would be appropriate to give a short background of the facts. Three brothers S/Shri Ram Singh, Swaran Singh and Amar Singh being the sons of late Shri Bawa Singh purchased a plot measuring 311 sq.yards being K-18, Green Park, New Delhi in the year 1959 on which they jointly built a two and half storeyed building. Shri Amar Singh died in the year 1963. His estate was inherited by respondents 2 to 6. Shri Swaran Singh died in the year 1975 and his estate was inherited by his wife Smt. Saraswati Devi now deceased and petitioners 1 to 3 and late Shri Pyara Singh (son) now represented by his LRs being respondents 7 to 10 and respondent No. 11 (daughter). The third brother Shri Ram Singh died in the year 1998 and his estate devolved upon respondent No. 1 Smt. Satyawati. Shri Ram Singh had filed a civil suit being Suit No. 1575/90 titled "Shri Ram Singh v. Smt. Devki Devi and Ors." In the High Court for partition of property No. K-18, Green Park, New Delhi by metes and bounds. At the request of the parties, vide order dated 8th December, 1998, the disputes begin the subject matter of the suit were referred to the arbitration of Justice Lokeshwar Prasad (retired Judge of this Court). The learned Arbitrator entered upon the reference and adjudicated upon the disputed between the parties. Shri Ram Singh had expired during the pendency of the suit proceedings itself and his legal heir Smt. Satyawati was imp leaded. Smt. Satyawati filed her claim and the other respondents filed their written statements. Vide order dated 24th November, 1999, it was decided by the Arbitrator that the property to be partitioned was not ancestral property. It was also decided that the property had not been partitioned by metes and bounds. As such, the Arbitrator vide orders dated 6th December, 1999 with the consent of the parties, appointed M/s Modern India Architects as the Local Commissioner to separate the share of the claimant i.e. Smt. Satyawati, respondent No. 1. The entire property undisputedly belonged to three groups representing three brothers i.e. Ram Singh, Swaran Singh and Amar Singh. There is no dispute that each group has 1/3rd undivided share in the property. Smt. Satyawati being the widow of Ram Singh represented one group (hereinafter called as 1st Group), whereas petitioners Paramjit Singh, Ranbir Singh and Kamaljit Singh and respondents 7 to 11, being heirs of Swaran Singh formed the second group, collectively having 1/3rd share and respondents 2 to 6 being the heirs of Shri Amar Singh formed the third group.
3. The Local Commissioner/Architects submitted their first report dated 1st January, 2000 by which they separated the share of claimant i.e. of 1st Group in the property. The parties filed objections to the report, inter alia, raising an objection that the Architects had not considered the basements in the house. In view of the objections, another Local Commissioner was appointed to consider if there existed three basements in the said property. The Local Commissioner Mr. Rajesh Gupta, Advocate gave a report stating that there was no basement in the property. As no objections were filed to that report, it became final. During the pendency of the proceedings, Shri Jasbir Singh, respondent No. 4 representing the 3rd Group moved an application praying that the share of their group i.e. respondents 2 to 6 be also separated and the same Architects be appointed for the purpose which was allowed by the Arbitrators vide orders dated 20th November, 2000. Accordingly, the Architects submitted their second report dated 16th December, 2000 separating the share of respondents 2 to 6 in one block and that of petitioners and respondents 7 to 11 in another block. The petitioners group accepted the recommendations of the Architect and by moving an application dated 20th April, 2001 prayed that the property be partitioned as suggested by the Architect. Statement of Paramjit Singh, petitioner No. 1, who appeared for himself and his brothers i.e. the 2nd Group, was also recorded to that effect. Even Shri Jasbir Singh (respondent No. 4) for himself and his group (3rd Group) also gave no objection or the property being partitioned as suggested by the Architects. Jasbir Singh, however, moved an application on 21st April, 2001 stating that the partition be not effected as suggested by the two reports of the Architect but be effected as per the actual existing possession of the property by metes and bounds. This application was disposed of by the Arbitrator after hearing the parties.
4. The learned Arbitrator after hearing the parties by a reasoned award accepted both the reports of the Architects and directed that the property in question be partitioned between the parties by metes and bounds as suggested by the Architects. It was also directed that the tenant on the ground floor of the property, who was inducted by Jasbir Singh, would continue to use bathroom and toilet situated on the ground floor commonly with others for a period of four months from the date of the award and respondents 2 to 6 would make alternative arrangement of toilet and bathroom for the tenant within four months. This award has duly been registered.
5. The award has been challenged by part of the 2nd Group i.e. petitioners only. The only contention raised by them is that the Arbitral Award is not capable of implementation as a part of the tenanted premises let out to one Vinay Gupta by one of the co-owners, has been given to the petitioners group whereas the other part is given to respondents 2 to 6, i.e., the 3rd Group, which results in splitting of a single tenancy which is not permissible under Delhi Rent Control Act. It is contended that, as such the Award becomes invalid and liable to be set aside under the provisions of Section 34(2)(a)(ii) of the Act.
6. Though separate objections have not been filed but respondents 2 to 6 represented by respondent No. 4 (Jasbir Singh) have supported the petitioner's group.
7. The respondent No. 1 though has not filed any reply to the objections but has refuted the contentions raised by the petitioners by addressing arguments through her counsel.
8. Learned counsel for the respondent No. 1 has contended that the Award is in fact based on the consent of all the parties and it is fully implementable. It is submitted that the learned Arbitrator has given a detailed and well reasoned award, after giving his thoughtful consideration to the pleas of the parties. The further contention is that the objections are not covered under the provisions of Section 34 of the Act and as such liable to be dismissed.
9. Section 31(2) of the Act provides that an Arbitral Award shall state the reasons upon which it is based. A perusal of the Arbitral Award under consideration leaves no doubt that the Arbitral Tribunal has given a detailed and well reasoned award. Certainly the Court will not reappraise the evidence and sit over it as an appellate court.
10. Under the 1996 Act, an award can be set aside only if it is covered under Section 34, Sub-section (2) and Sub-section (3) of the Act.
11. For its proper appreciation Section 34 of the Act is quoted below:-
34. Application for setting aside arbitral award--(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3).
(2) An arbitral ward may be set aside by the Court only if-
(a) the party making the application furnishes the proof that-
(i) a party was under some incapacity;
or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration ay be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this part; or
(b) The court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time in force, or
(ii) the arbitral award is in conflict with the public policy of India.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that in the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under Sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
12. Learned counsel for the petitioners contends that the Arbitral Award is covered under Section 34(2)(b)(ii) of the Act and as such should be set aside. For bringing the objections under this Clause the petitioner has to show that the Award is in conflict with the public policy of India. The argument is that the partition of the property amongst the co-owners, as suggested by the Arbitrator results in splitting of the tenancy which is not permitted under Delhi Rent Control Act and, therefore, it is against public policy of India.
13. It is urged by the learned counsel for the respondent No. 1 that neither the Award is in conflict with any public policy of India nor it is against any statute.
14. What transpires from the perusal of the Award is that the learned Arbitrator in this case has not divided the tenancy. It was not even the subject matter of the reference for adjudication. What has bee divided is the property amongst its co-owners by specifying their respective shares. In fact, in this case, no question of splitting of tenancy arises. The question of splitting of tenancy arises when a landlord seeks to evict his tenant from a part of the tenancy premises. In case the contention of the petitioners is taken to be correct it would result in the absurdity that the Court would be devoid of powers to partition a property amongst its co-owners, if the same is wholly occupied by a tenant.
15. Nothing has been shown or brought to my notice indicating that the partition of a tenanted premises between its co-owners is against public policy of India. Even otherwise the contention of the petitioner is misconceived.
16. In any case, while exercising jurisdiction under Section 34 of the Act this Court is not sitting in appeal over the Arbitral Award and the scope of this powers is very limited. The Arbitrator has given a reasoned award that also substantially in accordance with the consent of the parties. The award has been duly registered. The objections to the award appear to be an afterthought and misconceived. The learned Arbitrator keeping in view their own suggestions and over all view of the facts has sought to do justice between the parties. The objections are devoid of merits and the same are hereby dismissed.