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Delhi District Court

Sh. Leela Ram vs Ms. Pooja Pal on 11 April, 2019

 In the Court of Ms. Vineeta Goyal: Additional District Judge­03
           (South District) Saket Court Complex, New Delhi.
ARBT No. 238/18
CNR No. DLST01­005263­2018


In the matter of :­
Sh. Leela Ram
S/o Sh. Munga Ram
R/o House no. 11, Ghoda Mohalla
Village­ Aya Nagar, New Delhi                  ......Petitioner

                                VERSUS

1. Ms. Pooja Pal
W/o Sh. Surinder Pal
R/o House no. 12, Arjun Nagar
New Delhi­10029

2. Sh. Surinder Pal
S/o Late (Sh.) Gurbax Lal
R/o House no. 12, Arjun Nagar
New Delhi­110029

3. Sh. Abhishek Mehra
S/o Sh. Surinder Pal
R/o House no. 12, Arjun Nagar
New Delhi­110029

4. Sh. Vinod Yadav
Sole Arbitrator
Office at Chamber no. 606,
Lawyers Chamber Block
Saket Courts Complex
New Delhi                                       ..... Respondents
ARBT No: 238/2018                                        Page no. 1 of 9
Leela Ram vs. Pooja Pal & ors
 Date of institution                 :     09.08.2018
Date of decision                    :     11.04.2019

Appearance :             Sh. R.B. Singh, Counsel for petitioner.
                         Sh. Aga Khan, Counsel for respondents.


JUDGMENT

1. The petitioner has filed the present petition under Section 34 of Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the Act 1996) for setting aside award dated 17.07.2018 passed by the Ld. Sole Arbitrator in arbitration matter bearing no.ARBTN/S/2/2018 titled as 'Ms Pooja Pal and Ors. versus Leela Ram'.

2. Facts as epitomized in the petition by the petitioner are that Gram Sabha Aya Nagar has filed a suit for ejactment under Section 84 (b) of Delhi Land Reforms Act, 1954 bearing no. 382/58 titled as "Gaon Sabha Aya Nagar versus Jhandu Munni Dhanni, Monga, sons of Haria" on 27.06.1958 seeking ejactment of predecessor­in­interest of the petitioner from the land measuring 3 Bigha, 6 Biswa, comprised in Khasra no. 1659, 1660, 1667 and 1678 situated in Revenue Estate of Village Aya Nagar alleging therein that the said land vested in Gaon Sabha. The said matter was dismissed by Assistant Collector, Grade I, Delhi on ARBT No: 238/2018 Page no. 2 of 9 Leela Ram vs. Pooja Pal & ors 31.07.1961. Against the said order, Gaon Sabha Aya Nagar preferred an appeal which was dismissed by Addl. Collector on 19.05.1969. The order dated 31.07.1961 had attained finality and entries pertaining to khasra no. 1659 (0­7), 1660 (0­6), 1667 (2­9) and 1674 (0­4) total measuring 3 Bigha 6 Biswas situated in Revenue Estate of Village Aya Nagar, Delhi, hence, absolutely belonged to the petitioner or his predecessor­in­interest, accordingly to their respective share. The petitioner alongwith co­ sharer filed a Writ Petition titled as "Sh. Monga and Ors versus Gaon Sabha Aya Nagar" which was allowed by Hon'ble High Court of Delhi vide judgment dated 23.7.2009 and in view of the said judgment, the petitioner or his predecessor in interest became absolute owners in possession of the aforesaid property/ land.

2.1 The petitioner further alleged that respondent no(s). 1 to 3 contacted to the petitioner and expresses their willingness to purchase the part of property / house measuring no. 11 Khasra no. 1659, measuring 400 sq. yards out of total land measuring 835 sq. yards (hearing after referred as suit property). The petitioner showed all the documents pertaining to the title of property to the respondent no.(s) 1 to 3 and respondent no(s). 1 to 3 after getting fully satisfied paid earnest amount and Rs.25 Lacs by cheque to the petitioner. On 24.05.2017 an advance receipt cum agreement ARBT No: 238/2018 Page no. 3 of 9 Leela Ram vs. Pooja Pal & ors to sell was executed with regard to the subject property for the total sale consideration of Rs.1,50,00,000/­. The petitioner has received Rs.35 Lacs (Rs. 25 Lacs on 19.04.2017 plus Rs. 10 Lacs on 24.05.2017 by cheques respectively) from the respondent no(s). 1 and 3 thereafter, respondent no(s). 1 to 3 have not paid even a single penny to the petitioner towards the remaining amount which was supposed to be paid to the petitioner within 6 months from signing of Advance Receipt cum Agreement to Sell and Purchase dated 24.05.2017. The respondent no(s). 1 to 3 has also sought extension of time due to paucity of funds. The petitioner was shocked to receive legal notice dated 21.12.2017 which was got issued by respondent no(s). 1 to 3 by their counsel and after going through the legal notice, it came to the knowledge of petitioner that said legal notice was false and it has been issued only in order to get benefit out of his own wrong. It was also alleged in the aforesaid legal notice that respondent no(s). 1 to 3 have also alleged that they have paid Rs.45,00,000/­ in cash. The petitioner further came to know that the respondent no(s). 1 to 3 have also sent the intimation to Ld. Sole Arbitrator to conduct the proceeding as per Act, 1996. After receiving the said notice, the respondent therein (petitioner herein) had appeared before the Ld. Sole Arbitrator but the Ld. Sole Arbitrator has passed the impugned award in mechanical manner without appreciating / considering the evidences, documents/ judgments and arguments ARBT No: 238/2018 Page no. 4 of 9 Leela Ram vs. Pooja Pal & ors addressed by the petitioner and without verifying the authenticity of the claim of the respondent no(s). 1 to 3 (claimants therein) and without asking them to prove on record the alleged payment in cash i.e. Rs.45,00,000/­, the Ld. Sole Arbitrator had not even enquired from the respondent no(s). 1 to 3 to show / file their income tax return for the relevant financial year to verify. The petitioner has also challenged the impugned award on the grounds that the entire process conducted by Ld. Arbitrator shows that Ld. Arbitrator did not take any rational decision and there was biased view of Ld. Arbitrator. No proper opportunity was granted to the petitioner to defend/ counter the alleged claim filed by the respondent no(s). 1 to 3. The Ld. Arbitrator failed to consider that proceeding before Ld. Sole Arbitrator under section 29A and 29B of Act 1996. The impugned award is against principle of Law, Justice and Equity and also in conflict with Public Policy. It is also submitted that no fair opportunity has been provided to the petitioner by Ld. Arbitrator. On these grounds, a prayer was made that the impugned award dated 17.07.2017 passed by Ld. Arbitrator be set aside.

3. The respondent no(s). 1 to 3 resisted the petition inter­alia taking pleas that the petitioner is neither the lawful owner of the subject property nor he is in possession of subject property and he has cheated the respondents by making false and frivolous ARBT No: 238/2018 Page no. 5 of 9 Leela Ram vs. Pooja Pal & ors promises and entered into the agreement with a malafide intention to grab huge amount of Rs.80 Lacs from the respondent. The respondents demanded the return of 80 Lacs from the petitioner but the petitioner did not respond to the request of the respondents, therefore, the respondents were constrained to invoke arbitration clause 9 as contained in said agreement dated 24.05.2017 and therefore, a legal notice was sent in this regard to the petitioner and Ld. Arbitrator was requested to enter into reference of Arbitrator/ Proper compliances has been made by Ld. Arbitrator. Proper time was given to the petitioner but petitioner vaguely filed applications and called the Ld. Arbitrator as agent. It is urged by the respondents that a well speaking award has been passed by Ld. Arbitrator which warrants no interference.

4. Rejoinder to the reply was filed reiterating and reaffirming the contents of petition.

5. I have heard arguments advanced by Ld. Counsel for parties and perused the material available on record and gone through the arbtiral record.

5.1. It is though laid down that Ld. Arbitrator is not bound by procedure prescribed in law yet at the same time, Ld. Arbitrator is not at liberty to adopt a procedure which perpetuate injustice ARBT No: 238/2018 Page no. 6 of 9 Leela Ram vs. Pooja Pal & ors and opposite to the established principles of natural justice. In case, such liberty is allowed to the Ld. Arbitrator, it will vest unbridled discretions resulting to miscarriage of justice.

5.2 In the instant petition, the Ld. Arbitrator was presented with claim on 17.02.2018 and on that date, while providing copy of claim to the opposite party (petitioner herein), the case was taken up on 03.03.2018 after a gap of 14 days. On the said date, Ld. Arbitrator closed the opportunity of the respondent (petitioner herein) for filing reply by mentioning that period given to the respondent (petitioner herein) to file reply four days in advance which he failed, thus opportunity for filing reply was closed. This procedure of haste of giving only 10 days to file reply reflects extreme haste and denial of justice to the opposite party (petitioner herein) particularly in view of the fact when the party was praying for sufficient time. Even though Code of Civil Procedure, 1908, are not applicable in the Arbitration Proceedings, but yet the period of 30 to 90 days depending upon circumstances in each case have been considered to be reasonable. The Ld. Arbitrator closed opportunity within less than two weeks and rushed to proceed further, despite another request was made on that date. The proceedings sheet further reveals that on 10.03.2018, respondent (petitioner herein) filed number of objections application which was filed for reply on ARBT No: 238/2018 Page no. 7 of 9 Leela Ram vs. Pooja Pal & ors 17.03.2018 when the claimant (respondents herein) filed reply and without affording adequate opportunity to the petitioner herein, the application was dismissed on the next date.

5.3 The process of evidence has been marathoned by the Ld. Arbitrator between 18.04.2018 to 29.05.2018. In between these dates, in the span of roughly 40 days, the Ld. Arbitrator took the evidence of claimant therein (respondent no.(s) 1 to 3 herein), denied opportunity to the respondent (petitioner herein) and accepted the evidence of the claimant (respondent no.(s) 1 to 3 herein). There is no mentioning of providing opportunity to the respondent therein (petitioner herein) to cross­examine the evidence adduced by the claimant therein (respondents herein). At this stage, it is relevant to mention here that the claimant therein (respondents herein) have allegedly made payment of Rs.15,00,000/­ in cash to respondent and Rs.30,00,000/­ to the brother­in­law of the respondents namely Selak Ram, the Ld. Arbitrator in this award accepted the evidence such was in the form of video recording coupled with affidavit under Section 65 of Evidence Act. The evidence was of the nature which should have been accepted after putting the same for cross­examination and there is no mentioning in the award as to how the relative of the respondent no.(s) 1 to 3 was authorized to recover cash on their behalf. These discrepancies have occurred because due procedure ARBT No: 238/2018 Page no. 8 of 9 Leela Ram vs. Pooja Pal & ors has not been followed and the impugned award has been passed in hasty manner which has resulted in prejudice and injustice and against the public policy.

5.4. In view of the facts and the circumstances above the petition under Section 34 of Act and impugned order dated 17.07.2018 is hereby set aside. No order as to cost. File be consigned to record room.

Pronounced in the Open Court on 11.04.2019 (Vineeta Goyal) Additional District Judge South District: Saket: New Delhi ARBT No: 238/2018 Page no. 9 of 9 Leela Ram vs. Pooja Pal & ors