Delhi District Court
Shri Lalit Kumar vs Shri Pawan Kumar on 24 December, 2009
1/20
IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
TIS HAZARI COURTS : DELHI.
SUIT NO.521/08
1. Shri Lalit Kumar
2. Shri Raj Kumar
Both sons of late Shri Hoshiar Singh
3. Smt. Natho Devi
widow of Shri Hoshiar Singh
All residents of House No.422,
Pocket-2, Janta Flat, Paschim Puri,
New Delhi - 110063.
....Petitioners
VERSUS
1. Shri Pawan Kumar
son of Late Shri Hoshiar Singh
r/o 403, Pocket-2, Paschim Puri,
New Delhi.
2. Shri Sunil Kumar
son of Late Shri Hoshiar Singh
r/o 422, Pocket-2, Paschim Puri,
New Delhi.
3. Shri Om Prakash
r/o 264, Purva Mahani,
Meerut City, U.P.
4. Shri Jagdish Chauhan,
son of Shri Hari Singh
r/o Village Sadarpur,
Sector-45, Noida.
District Gautam Budh Nagar,
2/20
U.P.
5. Shri Arvind Kumar
Advocate/Arbitrator,
Lawyer's Chamber No. A-8 & A-9
Amar Nath Monga Block,
Near Gate No.3, Tis Hazari Courts,
Delhi-110054.
....Respondents
Date of Institution : 11.08.2008
Date when the case reserved for order : 05.12.2009
Date of Order : 24.12.2009
ORDER
1. By this common order, I shall dispose of the application of the petitioners under Section 34(3) of the Arbitration and Conciliation Act, 1996 for condonation of delay in filing the objections to the award dated 29.3.2008 and also the objections filed under Section 34 of the said Act.
2. The case of the petitioners in the objection petition is that the respondent no.1 namely Sh. Pawan Kumar filed two different suits in two different civil courts against the petitioners and respondent no.2, on the basis of forged Will with respect to the property no.403, Pocket-2, Paschim Puri, New Delhi, which was assigned to the court of Sh. Praveen Singh, Ld. Civil Judge, Delhi, which was dismissed on 25.3.2006 and another suit with regard to partition of 3/20 property no.422, Janta Flats, Pocket-2, Paschim Puri, New Delhi, property no.E-16/1243, Khalsa Nagar, Padam Singh Road, New Delhi, and a shop number G-35, Mahavir Tower, Jaina Commercial Complex, Plot No.32-33, Paschim Vihar, New Delhi, which was pending before the court of Sh. Satish Kumar Arora, Ld. Civil Judge, Delhi, and the said suits were being duly contested and that as the respondent no.1 failed to achieve his desired goal of grabbing the properties of the petitioners, he played a fraud with the petitioners by getting them agreed to change the Advocate through whom they were contesting the aforesaid suits and got inserted the vakalatnama of respondent no.5 namely Sh. Arvind Kumar, Advocate and that in connivance with the said respondent no.5, the respondent no.1 succeeded to have a family settlement/mutual agreement on 12.1.2007 and copy of the same was also placed in the records of the aforesaid suits without providing opportunity to the petitioners and as the petitioners were being represented through respondent no.5 before the said courts at the time of withdrawal of those suits by the respondent no.1, there was no reason with the petitioners to suspect the act of the respondents no.1 and 5. 4/20
3. It has been further averred in the petition that the respondent no.1 filed an execution petition bearing no.201/08 before the concerned court of Ld. Additional District Judge, Delhi, and pursuant to the said execution petition, the respondent no.1 visited the premises of the petitioners on 28.7.2008 and at that time the petitioners no.1 and 2 were not present and that only the wife of petitioner no.1 and petitioner no.3 were present and that at the said occasion the respondent no.1 created panic in the premises and succeeded to get the statement recorded of the wife of the petitioner no.1 whereby the assurance from the side of the petitioner no.1 was obtained with respect to due compliance of the award dated 29.3.2008 which is under execution and thereafter the petitioners engaged their counsel and got the execution petition inspected and then they came to know about the passing of the award by respondents no.3 to 5.
4. It is further averred in the petition that respondents no.3 and 4 are the relatives of the petitioners as well as respondents no.1 and 2 but are illiterate persons and that the said award was procured by the respondent no.1 in active connivance of respondent no.5, who is a practicing Advocate 5/20 and represented the petitioners in the said litigations at the time of withdrawal of the same by respondent no.1.
5. It is further averred in the petition that as per settlement dated 12.1.2007, six persons namely Sh. Prakash (brother-in-law of late Sh. Hoshiar Singh), Sh. Om Parkash, Sh. Nand Kishore, Sh. Bhola Nath (all the three brothers of late Sh. Hoshiar Singh), Sh. Jagdish Chauhan (son-in-law of Sh. Bhola Nath) and Sh. Arvind Kumar (respondent no.5 herein) were the named Arbitrators out of which presence of three arbitrators was made compulsory for initiation of arbitration proceedings and the said agreement dated 12.1.2007 was related to four immovable properties bearing Flat No.403, D.D.A flats, Paschim Puri, New Delhi, Flat No.422, D.D.A Flats, Pocket-2, Paschim Puri, New Delhi, property no.E-16/1243, Khalsa Nagar, Padam Singh Road, Karol Bagh, New Delhi and a shop No.G-35, Mahavir Tower, Jaina Tower Complex, plot no.32-33, Paschim Vihar, New Delhi, which were being purchased through general Power of Attorney, affidavit, agreement to sell and receipt in the name of different persons, except in the name of respondent no.1, who was nothing to do with the properties in question in any 6/20 manner but he was in the possession of property no.403, Pocket-2, Paschim Puri, New Delhi and as per the said agreement, the parties agreed to partition the aforesaid properties and that the contents of the said agreement with regard to the partition of the said properties are illegal and not enforceable under the law as the Transfer of Property Act prohibits the ownership of an immovable property by any person unless and until the same, for consideration of more than Rs.100/-, is registered and fulfills the other legal requirements which are given in the Contract Act and apart from this the contents of the said agreement go to show that parties to the said agreement accepted all properties as Benami properties of late Sh. Hoshiar Singh and same is hit by Section 3 and 4 of the Benami Transaction (Abolition) Act and also under the Registration Act.
6. It is further averred in the petition that contents of the award dated 29.3.2008, the respondent no.1 and 2 have exercised their rights as per the arbitration clause available in the family settlement dated 12.1.2007 but the whole of the award is silent about the contents of the claim petition moved by the said respondents and mode of proof and that as per 7/20 contents of the award, efforts were made to serve the petitioners for their participation in the arbitration proceedings which were allegedly being done by the respondents no.3, 4 and 5 and that the contents of the family settlement dated 12.1.2007 do not speak about the types of disputes which can be referred to the Ld. Arbitrators and the mode of constituting the Board of Ld. Arbitrators has also not been mentioned therein and that as per contents of the said agreement, the Ld. Arbitrators have not been provided with the authority to assess the valuation of the said properties and to decide the shares and the liability at the time of death of late Sh. Hoshiar Singh with respect to his debts and expenses incurred on his medical treatment, have not been specified in the said agreement and that the alleged Ld. Arbitrators i.e respondents no.3 to 5, have malafidely turned down the liabilities of late Sh. Hoshiar Singh and straightway assessed the value of the properties and respondent no.1 has been made entitled to fulfill his dream of grabbing the properties this way or that way.
7. It is further averred in the petition that the Ld. Arbitrators forgot to consider that the petitioners no.1 and 3 8/20 are the general attorneys only of the previous owners of property bearing no.422 at Paschim Puri, New Delhi and property no.E-16/1243 at Karol Bagh, New Delhi and without the presence of previous owners, no title of the said properties can be decided.
8. It is further averred in the petition that it was in the knowledge of the respondents no.1 and 2 that the deceased Hoshiar Singh left huge debts and considerable amount was spent on his illness and the money was borrowed from the market and the same has been redeemed by the petitioner no.1 after selling two different portions of property bearing no.E-16/1243 at Karol Bagh, New Delhi and that no proper efforts were made by the alleged Ld. Arbitrators to serve the petitioners for their participation in the arbitration proceedings and that the petitioners were not aware about the passing of the award dated 29.3.2008 till the visit of the bailiff to attach the property no.422 at Paschim Puri, New Delhi and other movable properties and that no valid arbitration agreement exists or signed by the petitioners and that the Ld. Arbitrators wrongly assumed jurisdiction in entertaining the dispute and passing the award and that the 9/20 Ld. Arbitrators were biased at the behest of respondent no.1.
9. Admittedly the objection petition has been filed after a delay of 29 days and in the application for condonation of delay it is mentioned that it was only after the visit of the respondent no.1 in pursuant to the said execution petition at one of the said properties on 28.7.2008 that the petitioners came to know about passing of the award dated 29.3.2008 and the contents of the alleged family settlement dated 12.1.2007, due to which the petitioners could not file objections within the statutory period of 90 days but the present objection petition is within the discretionary period of further 30 days, as provided under Section 34(3) of the said Act of 1996.
10. The respondents no.1 and 2 in their respective reply to the said objection petition as well as the application for condonation of delay have taken the preliminary objections that the petition is barred by limitation as it has been filed after the prescribed statutory period and that the petitioners had adopted the policy of wait and watch as the petitioner no.2 has appeared in the arbitration proceedings once and he was well aware about the ongoing arbitration proceedings 10/20 and the petitioners herein had filed the present petition jointly which itself shows that all the petitioners were well aware about the arbitration proceedings and that even the copy of the award was sent to the petitioners through courier but they failed to take necessary steps within the stipulated period of time to file the objections and came with a lame excuse that they came to know of the award only when the bailiff in the execution petition had visited their premises.
11. It has been further replied that the petition is not maintainable as sufficient compliance of the requirement of law as to the time, place, date and posting of award has been ensured and that the objection petition imputed personal allegations against the Ld. Arbitrators which is unwarranted under the law and that the petitioners even otherwise failed to take steps in accordance with the Act for the revocation of the arbitration clause or for that matter the panel of Ld. Arbitrators and as such, the objections of the petitioners are an abuse of the process of the court and as such, the same are liable to be dismissed and on merits, it has been submitted that the family settlement was placed before the concerned civil court by way of a joint application for recording of 11/20 compromise and the agreement dated 12.1.2007 was duly exhibited as Ex.C1 and the respondent no.5 herein was the counsel of the petitioners and respondent no.2 in the said suit at the time of compromise of the same and even the affidavits of the petitioners were filed before the concerned civil court in support of the family settlement and that the award has been passed by respondents no.3 to 5 on the application of the respondents no.1 and 2 as per the arbitration clause of the family settlement dated 12.1.2007 and the copy of the same was delivered by the Ld. Arbitrators to all the affected parties and other contents of the connivance of respondents no.1 and 5 have been denied and the malafide and bias of the Ld. Arbitrators have also been denied and it has been further submitted that the respondent no.5 was never the Advocate of respondent no.1 who was the Advocate of all the petitioners and the respondent no.2.
12. It has been further submitted that allegations in the objection petition are mischievous as the petitioners have leveled the allegations against the Ld. Civil Court also and the process server appointed by the Ld. Executing Court as well. It has been denied that the contents of the award or the 12/20 contents of the family settlement are against the provisions of Transfer of Property Act, Contract Act, Benami Transaction (Abolition) Act or the Registration Act, as alleged in the petition. The other contents of the petition have also been denied.
13. The petitioners in their rejoinder have denied the preliminary objections and reiterated the contents of the petition.
14. In this case since there were personal allegations against the Ld. Arbitrators, especially against the respondent no.5, who is a practicing Advocate and the allegations were to the extent of professional misconduct on his behalf, this court in view of the principles of natural justice that nobody should be condemned unheard and that too behind his back, preferred to call the Ld. Arbitrators, not in their capacity as such arbitrators, but in their individual capacity and respondent no.5, in his capacity as an Advocate, at least to rebut the allegations of the petitioners in writing and they have also filed their reply denying the allegations and reiterating the contents of the award passed by them which are not reproduced here being not relevant for the purposes of 13/20 decision of the objection petition.
15. I have heard the Ld. Counsel for the petitioners as well as respondents no.1 and 2 and perused the arbitration proceedings as well as the award dated 29.3.2008.
16. All the objections with regard to bias, malafide of the Ld. Arbitrators, connivance of the Ld. Arbitrator, the respondent no.5 with respondent no.1 and wrongly assuming the jurisdiction and challenge to the existence or validity of the arbitration clause or the validity of the family settlement dated 12.1.2007, were to be taken under the law before the Ld. Arbitrators only as provided under Section 16 of the Arbitration and Conciliation Act, 1996.
17. The objection that the petitioners were not knowing even the contents of the family settlement dated 12.1.2007 is not sustainable in view of the fact that a compromise was arrived at between the parties before the court of Sh. Satish Kumar Arora, the then Ld. Civil Judge, Delhi, the copies of which have been placed on record of the arbitration proceedings wherein all the petitioners filed their respective affidavits and signed or thumb marked the application under Order 23 R 3 CPC and even if the story of the petitioners that 14/20 they came to know of the agreement dated 12.1.2007 at the time when the bailiff visited their property in pursuance to the execution petition filed to execute the award, is to be believed as true, they admittedly did not take action against the compromise decree dated 31.1.2007 passed by the said Ld. Civil Judge to get the said decree set aside or by way of filing an appeal or revision, as the case may be. The only inference from the said conduct of the petitioners which can be drawn is that they were very well aware not only regarding the family settlement/agreement dated 12.1.2007 but its contents also which included the arbitration clause providing the named arbitrators and mandatory presence of three Ld. Arbitrators for resolving any dispute between the parties. Having held so, let me turn to the agreement/family settlement which is mostly in Devnagri Script, to answer the objection of the petitioners that the said agreement nowhere provided for types of disputes to be referred to the Ld. Arbitrators as in clause 10, providing for arbitration, it is mentioned that regarding the said contents of the agreement and the partition of the property and the money, if any doubt or dispute arises between the parties, no party shall file a 15/20 suit in a court of law but if a suit is filed by any of the parties, the same shall be deemed as void and the same shall be referred to the arbitration and thereafter the names of the Ld. Arbitrators are mentioned. The said clause 10 very well defined the nature and type of disputes and subject matter of the disputes between the parties leaving no scope for the petitioners to raise the said objection.
18. Order 23 Rule 3 CPC provides for a lawful agreement only to be recorded by the civil court and in the explanation attached to the said Rule 3, it is mentioned that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this Rule. Thus, the said provision of Order 23 R 3 provides that only a lawful agreement can be recorded by a court of law and it was for the affected or aggrieved party to raise the objection that the agreement was void or voidable or unlawful before the said court and should have refrained from entering into such a compromise or agreement but the present petitioners not only participated in drafting the agreement but also in moving the application before the said Ld. Civil Judge under Order 23 R 3 CPC and 16/20 also got recorded their respective statements wherein they also supported their agreement by their respective affidavits also and requested the court to pass a consent decree in terms of the compromise which was duly exhibited before the said court. In the said circumstances, the petitioners are now estopped from denying the knowledge of the existence and contents of the agreement dated 12.1.2007. The doctrine of estopple operating against the petitioners also covers their allegation against the respondent no.5 as their counsel allegedly in connivance with respondent no.1 as one of the Ld. Arbitrators. Thus, in my considered opinion, the petitioners were very well aware of the existence of the agreement dated 12.1.2007 and the contents thereof which included the arbitration clause also.
19. Since I have already held that all the objections right from challenging the jurisdiction of the Ld. Arbitrators up to the objections on merits were to be taken before the Ld. Arbitrators, next question arises as to whether the petitioners were having the knowledge of the arbitration proceedings or not. This question goes to the root of the matter. If the petitioners were having no knowledge of the 17/20 arbitration proceedings pending against them, the award is to be set aside and if they are having the knowledge of the arbitration proceedings, then the legal consequences shall follow.
20. To answer the said question, I have gone through the arbitration proceedings wherein the notices were repeatedly sent to the petitioners and petitioner no.2 appeared before the Arbitration Tribunal on 20.1.2008 and he gave in his own handwriting in pen in vernacular a request to the Ld. Arbitrators seeking time for 4 or 5 days for filing his claim and further requesting to postpone the arbitration proceedings so that "we all" (Hum Log in Hindi has been used) may resolve the dispute within the family otherwise whatever would be decided by the Ld. Arbitrators, would be acceptable to us. The address at which the petitioner no.2 was sent with the notice of the arbitration proceedings by way of courier service is mentioned as 422, D.D.A Janta Flats, Paschim Puri, New Delhi, which is the address of all the petitioners in the present petition as is reflected from the memo of parties mentioned above, which go to establish that all the three petitioners were residing at the same premises 18/20 and the only inference is that it is against the ordinary course of human conduct that the petitioner no.2 would not have disclosed about the pendency of the arbitration proceedings and that too in the circumstances whereby the respondent no.1 was allegedly trying to grab their property as has been mentioned in the present petition. The record of the arbitration proceedings reveals that the notices of different proceedings were repeatedly sent through courier on the said address of the petitioners and the presumption arises in favour of their due service of the proceedings of the Ld. Arbitrators and before this court the petitioners have miserably failed to rebut the said presumption. Thus, I am of the considered opinion that the petitioners were very well aware about the existence of the arbitration proceedings.
21. Needless to repeat the law that once existence of an arbitration clause between the parties is established and the parties were having the knowledge of the arbitration proceedings, then each and every objection, as has been raised in the present petition, is required to be raised before the Ld. Arbitrators, who can very well adjudicate with regard to their own jurisdiction under the law and also the disputes 19/20 between the parties on merits in terms of the agreement.
22. This court cannot sit in appeal over the Ld. Arbitrators nor this court can substitute its opinion for the opinion of the Ld. Arbitrators. After going through the arbitration proceedings, the Ld. Arbitrators, in my considered opinion, have rightly proceeded the petitioners ex parte particularly after the appearance of petitioner no.2 on 20.1.2008.
23. Coming to the condonation of delay in filing the present objections. In the application no ground is mentioned showing sufficient cause for not filing the present objection petition within the prescribed time and even after the prescribed time. The receipt of the award sent by the Ld. Arbitrators has not been denied specifically anywhere in the petition. The discretion for condonation of delay is to be exercised liberally but on the sound principles of law. The period of delay may be immaterial although Section 34(3) and proviso thereto provided a strict period of limitation beyond which the delay cannot be condoned. It is the sufficiency of the reasons which is material for condoning the delay in filing a proceeding before a court of law. I failed to find out any 20/20 ground or any cause justifying the delayed filing of the objections. Rather the said circumstances are going against the petitioners proving that the petitioners were sitting tight over the fence and watching the game and when they almost lost the game, they jumped into the arena and started playing the game which cannot be allowed under the law. Hence, the application for condonation of delay of the petitioners as well as objections on the merits are hereby dismissed. In the circumstances, parties to bear their own cost. The record of the arbitration proceedings be returned back to the person entitled to hold the same after the expiry of period of appeal/revision etc. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 24.12.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI.