Madras High Court
A.Chidambaram vs Dr.S.Rajagopal on 22 November, 2022
Author: C.V. Karthikeyan
Bench: C.V.Karthikeyan
Arb.O.P.No.32 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22.11.2022
Coram:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Arb.O.P.No.32 of 2022
A.Chidambaram
.. Petitioner
Vs.
1.Dr.S.Rajagopal
2.Vasuki Rajagopal
3.S.Venkataraman
.. Respondents
Original Petition filed under Section 11(a) of the Arbitration and
Conciliation Act, 1996 praying to appoint a Sole Arbitrator to adjudicate the
dispute that have arisen between the petitioner and the respondents.
For petitioner : Mr.R.Sagadevan
For R1 : Mr.K.Mayurapriyan
https://www.mhc.tn.gov.in/judis
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Arb.O.P.No.32 of 2022
ORDER
Heard both sides.
2.By an order dated 05.11.2013, in Crl.OP.No.18438 of 2013, a learned Single Judge while examining an Anticipatory Bail application of the accused therein, who are the respondents herein, had observed held as follows:
“3. Both sides counsel as well as parties agreed to that they would resolve the matter regarding the 0.78 cents of the Survey No.18/10A in front of arbitrator. The arbitral issue before the learned arbitrator will be only in relation to 0.78 cents and the parties are also ready for amicable settlement to resolve the issue between themselves. Hon'ble Mr.Justice K.Venkataraman, (Retd.,) residing at L.125, 17th Street, Anna Nagar East, Chennai – 600 102 is appointed as Arbitrator. Remuneration for the Arbitrator is fixed at the rate of Rs.40,000/- (Rupees Forty Thousand only) and the respective parties are directed to pay the remuneration jointly (each Rs.20,000/-). The Hon'ble Arbitrator is directed to forward a report to this Court with regard to outcome of the arbitration proceedings within a period of two weeks”.
3.The noting of any Court, has to be held sacrosanct. In State of Maharashtra v. Ramdas Shrinivas Nayak, reported in (1982) 2 SCC 463, the Hon’ble Supreme Court had held as follows:
https://www.mhc.tn.gov.in/judis 2/12 Arb.O.P.No.32 of 2022 “4.When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation.” [ Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 : 99 IC 742] We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. [ Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30 : 42 IC 527] That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an https://www.mhc.tn.gov.in/judis 3/12 Arb.O.P.No.32 of 2022 appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
(Emphasis supplied)
4.Even in that particular case before the Hon'ble Supreme Court, the learned Senior Counsel had stated that consent which is said to have been recorded by the Bombay High Court had not actually been given. However, the Hon'ble Supreme Court overruled that particular argument. It had been held that if it is recorded in the course of an order that consent had been given, it should be taken that consent was given.
5.A perusal of the extract of the order in Crl.OP.No.18438 of 2013 shows that both the learned counsels and also the parties had agreed that they would resolve the matter relating to 0.78 cents in Survey No.18/10A before an Arbitrator. This signifies agreement to refer the disputes to the arbitration and also signifies consent for such referral of that issue by the Court to an Arbitrator. https://www.mhc.tn.gov.in/judis 4/12 Arb.O.P.No.32 of 2022
6.It is to be noted that there was no arbitration agreement between the parties but in view of the consent granted, the Court in exercise of its plenary powers had referred the issue to be settled through arbitration. This order referring the parties to arbitration, has not been challenged. The order has attained finality.
7.Consequent to that particular order, a learned former Single Judge of this Court, Mr.Justice. K.Venkataraman, who had been appointed as the Arbitrator had issued notices and arbitration proceedings commenced.
8.It is the grievance of the learned counsel who appears for the respondents that from the year 2013 there has been no effective progress before the arbitral tribunal. The blame is laid purely on the petitioner herein.
9.It was stated that originally an application was filed seeking attachment of properties and questioning that order of the Arbitrator, an Original Petition was filed before this Court. It is complained that the said Original Petition was kept pending for a period of three years. Thereafter, the attachment order was made absolute.
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10.It was also stated that the respondents herein had filed an application seeking interference with the arbitration proceedings. That application was dismissed and a learned Single Judge of this Court refused to interfere.
11.The years passed by. It is complained that the petitioner herein was responsible for the delay in the proceedings before the Arbitrator.
12.There are issues of facts which can be examined and determined only on examination of the records of the Arbitrator.
13.Be that as it may, the Arbitrator has now recused himself.
14.The present application has been filed seeking appointment of another Arbitrator. The objection raised is whether the provision of law should be Section 11(5) of the Arbitration and Conciliation Act, 1996 (or) Section 11(6) of the Arbitration and Conciliation Act, 1996. Both the provisions are extracted below for further reference:
11(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request https://www.mhc.tn.gov.in/judis 6/12 Arb.O.P.No.32 of 2022 of a party, by the Chief Justice or any person or institution designated by him.
11(6) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
15.It is seen that in this case, the Court had appointed an Arbitrator. For reasons stated by the Arbitrator, he had had now recused from continuing further with the arbitration proceedings.
16.The arguments of the learned counsel for the respondents is that the arbitration itself was an exercise in futility. It is stated that though anticipatory bail was sought, the First Information Report itself had been closed. It is further stated a protest petition filed by the petitioners herein has also been dismissed. It is however further understood that a revision has been filed against that order. https://www.mhc.tn.gov.in/judis 7/12 Arb.O.P.No.32 of 2022
17.Be that as it may, the reference to Arbitrator was with respect to adjudication of issues relating to 0.78 cents of land in the aforementioned survey number. That dispute still survives. The criminal prosecution is only a corollary aspect in any claim for land. It is set in motion when one of the parties hold that an element of dishonesty had crept in the transactions thereby giving leverage to invoke criminal prosecution. However that does not wipe out the proceedings before the Arbitrator.
18. It is also complained that after 13 years, the arbitration proceedings are now sought to be once again revived.
19.The stage in which the arbitration proceedings now stand was sought by this Court. An affidavit has been filed stating it is pending arguments.
20.The petitioner herein had filed an affidavit that they would co-operate with the learned Arbitrator.
21.The issue whether the petition should have been filed under Section 11(5) or 11(6) becomes mundane, because the learned Arbitrator had been appointed by an order of the Court after due count given by the parties/counsels. https://www.mhc.tn.gov.in/judis 8/12 Arb.O.P.No.32 of 2022
22.The learned counsel for the respondents had relied on a judgement of the Hon'ble Supreme Court, delivered on 05.05.2022 reported in (2022) SCC 556 On Line SC in Swadesh Kumar Agarwal .vs. Dinesh Kumar Agarwal and Others. The facts therein were as follows:
“2. The facts leading to the present appeals in a nutshell are as under:—
3. That a dispute between the parties which as such is a family dispute for partition of the properties arose. It was referred to the sole Arbitrator. The learned Arbitrator was appointed as a sole Arbitrator by the parties themselves on 04.08.2008. The learned Arbitrator directed the parties to appear on 14.03.2009 for deciding the pending applications. On the request of the parties, the Arbitrator adjourned the hearing on 30.03.2009. No proceedings were undertaken on 30.03.2009 due to the fact that the sole Arbitrator was not available in town. Respondent No. 1 and 3 herein - parties to the arbitration proceedings revoked the mandate of the sole Arbitrator vide letters dated 11.07.2009. The letters were replied to by the sole Arbitrator. Thereafter, respondent No. 1 and 3 herein, parties to the arbitration proceedings filed applications under section 14(1)(a) of the Act, 1996 before the concerned Court (District Court) to terminate the mandate of the sole Arbitrator on the ground of delay in concluding the arbitration proceedings. The appellant herein filed an application under order VII Rule 11 of CPC for dismissal of the said applications under section 14 of the Act, 1996, submitting that there was no delay at all on the part of https://www.mhc.tn.gov.in/judis the sole Arbitrator and therefore, there was no question of 9/12 Arb.O.P.No.32 of 2022 terminating the mandate of sole Arbitrator under section 14(1)(a) of the Act, 1996. Vide order dated 15.07.2010, the learned Trial Court dismissed the application filed under order VII Rule 11 of CPC preferred by the appellant herein”.
23.The facts herein are clearly distinguishable. A learned Single Judge of this Court had earlier also brushed aside the objections and had stated that in the peculiar circumstances of the present case where the parties had agreed to refer the disputes to arbitration, and the Court had also appointed an Arbitrator, then arbitration proceedings should further proceed.
24.Reference was also drawn to a judgment of the Hon'ble Supreme Court in Civil Appeal Nos.3164-3165 of 2017 in Kerala State Electricity Board and Another .v. Kurien E.Kalathil and Another, herein, the Hon'ble Supreme Court had specifically stated as follows in para 39 of the said judgment.
“39. Referring the parties to arbitration has serious civil consequences. Once the parties are referred to arbitration, the proceedings will be in accordance with the provisions of Arbitration and Conciliation Act and the matter will go outside the stream of the civil court. Under Section 19 of Arbitration and Conciliation Act, the arbitral tribunal shall not be bound by the Code of Civil Procedure and the Indian Evidence Act. Once the award is passed, the award shall be set aside only under limited grounds. Hence, referring the parties to arbitration has serious civil consequences procedurally and substantively. When there https://www.mhc.tn.gov.in/judis 10/12 Arb.O.P.No.32 of 2022 was no arbitration agreement between the parties, without a joint memo or a joint application of the parties, the High Court ought not to have referred the parties to arbitration”.
25.In the instant, the parties had specifically consented to submit the issues between them to be adjudicated through Arbitrator. The learned Single Judge had then referred the parties to arbitration. The ratio laid down relating to observations in an order, in State of Maharashtra .vs. Ramdas Shrinivas Nayak reported in (1982) 2 SCC 463 (referred supra) would directly apply.
26.It is seen that the attempt of the respondents is only to wriggle out of further proceedings of the Arbitrator. Raising objections at this stage, cannot be countenanced.
27.Let me therefore appoint another retired learned Single Judge of this Court Mr.Justice V.Bharathidasan, as the learned Arbitrator. However, since it is complained that the delay in the arbitration proceedings is solely due to the fault of the petitioner, I would direct that the entire remuneration now determined for the Arbitrator now appointed shall be borne only by the petitioner and the respondents cannot be burdened to share that amount. The initial remuneration is Rs.50,000/- [Rupees Fifty Thousand only]. Let the Arbitrator enter reference and proceed https://www.mhc.tn.gov.in/judis 11/12 Arb.O.P.No.32 of 2022 further as originally directed in the order dated 15.11.2013 in Crl.OP.No.18436 of 2013 and proceed to hear arguments. The learned Arbitrator may determine the further remuneration to be paid.
28.The Arbitration Original Petition stands allowed. No costs.
29.After the parties enter appearance and after the learned counsels express readiness to advance arguments, the learned Arbitrator may endeavour to complete the proceedings within three months thereafter.
22.11.2022 kp Internet : Yes / No Index : Yes / No https://www.mhc.tn.gov.in/judis 12/12 Arb.O.P.No.32 of 2022 C.V. KARTHIKEYAN , J.
kp Arb.O.P.No.32 of 2022 22.11.2022 https://www.mhc.tn.gov.in/judis 13/12