M/S. Rajendra Iron Mart & Anr. vs Shri Brajendra Khandelwal & Ors. on 20 May, 2022

[Cites 6, Cited by 0]

Delhi High Court

M/S. Rajendra Iron Mart & Anr. vs Shri Brajendra Khandelwal & Ors. on 20 May, 2022

1. The petitioners have filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter the 'A&C Act') impugning an arbitral award dated 31.01.2019 (hereinafter the 'impugned award') delivered by an Arbitral Tribunal constituted of a Sole Arbitrator (hereinafter the 'Arbitral Tribunal').

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2. The impugned award was rendered in the context of disputes that had arisen, essentially, between the petitioners and respondent no.1 (Sh. Brajendra Khandelwal - hereinafter referred to as 'BK'). According to the petitioners, BK and respondent no.3 (Smt Ravi Bala Mathur, since deceased) had retired from the firm, Rajendra Iron Mart (hereinafter the 'Firm') in terms of the Retirement Deed dated 19.01.2010. Whilst respondent no.3 did not dispute that she had retired from the Firm, BK claimed that he continues to be a partner in the Firm.

3. The disputes, essentially, centre around the question whether BK had retired from the Firm with effect from 19.01.2010.

Factual Context

4. The Firm was constituted by a Partnership Deed dated 15.01.2008 (hereinafter the 'Partnership Deed') by four partners - petitioner no.2 and the respondents. The same was registered with the Registrar of Firms on 17.07.2008. The business of the Firm was being carried out earlier by petitioner no.2 along with three other partners, Sh. Suresh Chand Khandelwal, Sh. Rajender Prasad Khandelwal and Mr Lalit Kumar Mathur in terms of the Partnership Deed dated 02.06.1981. Sh. Suresh Chand Khandelwal expired on 01.08.1992, Sh. Rajender Prasad Khandelwal expired on 08.10.2001 and Sh. Lalit Kumar Mathur expired on 25.04.2004. The recitals of the Partnership Deed dated 15.01.2008, records that in terms of Clause 15 of the Partnership Deed dated 02.06.1981, the heirs of the deceased partner were entitled to become partners in his/her place. Accordingly, the respondents were joined as partners in the business of the Firm, which stood re-constituted Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 2 of 20 Signing Date:20.05.2022 with effect from 15.01.2008. The said partners agreed that the profits and losses of the partnership business would be shared and contributed by the four partners in the following proportion:

"A Shri Mahesh Chand Khandelwal Rs. 0.17 P. in a rupee B Smt. Sneh Lata Khandelwal Rs. 0.17 P. in a rupee C Shri Brajendra Khandelwal Rs. 0.33 P. in a rupee D Smt. Ravi Bala Mathur Rs. 0.33 P. in a rupee"

5. Although the partnership deed does not reflect that any of the partners were sleeping partners, BK claims that he was the sleeping partner of the Firm and had not participated in its business.

6. The Firm had applied to the Delhi Development Authority (hereinafter 'DDA') for an industrial plot of land admeasuring about 605 sq. yards, bearing no. 179, Block A, Okhla Industrial Development Area, Phase-I, Delhi (hereinafter the 'property'). By a letter dated 29.09.1970, the DDA allotted the property to the Firm.

7. The allotment of the property in favour of the Firm was cancelled. However, by a letter dated 04.04.2000, the Commissioner of the DDA recommended restoration of the allotment in favour of the Firm.

8. The allotment of the property was not restored and therefore, the Firm filed a Writ Petition (Civil) no.6398/2008 titled "M/S Rajendra Iron Mart and Anr. v DDA". The said petition was instituted by Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 3 of 20 Signing Date:20.05.2022 petitioner no.2 (hereinafter referred to as 'MCK') and the Firm. BK was not a party to the petition.

9. Writ Petition (Civil) no. 6398/2008 was allowed by an order dated 20.07.2011 directing the DDA to restore the allotment of the property in favour of the Firm. The DDA appealed the said decision before a Division Bench of this Court (LPA 196/2012). The said appeal was dismissed by orders dated 02.07.2012 and 20.07.2012.

10. A Contempt Petition (Civil) no. 715 of 2011 titled "M/S Rajendra Iron Mart v G.S. Patnaik" was filed by MCK on behalf of the Firm seeking compliance of the order passed in Writ Petition (Civil) no.6398/2018.

The Dispute

11. Mahesh Chand Khandelwal (MCK) claims that by a Retirement Deed dated 19.01.2010, BK as well as respondent no.3 retired from the Firm and it was further agreed that MCK and respondent no.2 (Smt. Sneh Lata Khandelwal) would be entitled to continue the business of the Firm in its name. The Retirement Deed was signed by MCK as well as respondent nos.1 to 3.

12. Thereafter, MCK and respondent no.2 (Smt. Sneh Lata Khandelwal) entered into another partnership deed to carry on the business of the Firm in its name (Rajendra Iron Mart). Thereafter, on 19.09.2011, a notice of change of constitution of the Firm in the Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 4 of 20 Signing Date:20.05.2022 prescribed format (Form No.V) was filed with the Registrar of Firms. The said Form V was also signed by MCK as well as the respondents.

13. BK claims that MCK had attempted to exclude BK from the Firm (and thereby, his share in the property) by fabricating and manipulating the Retirement Deed as well as Form V (notice of change in the constitution of the firm) filed with the Registrar of Firms.

14. On 03.07.2012, BK caused a notice under Section 21 of the A&C Act to be issued to MCK, respondent nos. 2 and 3, inter alia, seeking reference of the inter se disputes to an arbitrator appointed by BK. It is alleged in the notice that the noticees (MCK and respondent nos. 2 and

3) had colluded and fabricated documents to falsely claim that BK had retired from the Firm. BK asserted that he had not retired from the Firm and continued to be one of the constituent partners and still a partner of the Firm; and, he had never received any payments regarding his retirement.

15. Prior to that, BK also sought to intervene in the DDA's appeal (LPA 196/2012), inter alia, to claim interest in the property. However, the said intervention application was rejected on the ground that the appeal was not considered with the inter se disputes between the partners.

16. BK filed a petition under Section 9 of the A&C Act claiming that the firm's reconstitution by a Partnership Deed dated 10.03.2011, was "illegal, invalid, sham and unfair". BK claimed that MCK had obtained certain blank papers from him, which had been mis-utilised and Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 5 of 20 Signing Date:20.05.2022 illegally used to reflect his retirement from the Firm and its reconstitution. BK sought interim measures of protection seeking an order restraining the other parties from dealing with selling, transferring or in any manner encumbering the property.

17. MCK opposed the present petition and asserted that BK had retired from the Firm along with respondent no.3 and each of them were paid a sum of ₹1,65,000/- on their retirement. Both the retired partners had also signed the notice of change in constitution of the Firm, which was thereafter filed with the Registrar of Firms. Thereafter, the Registrar also issued Form-A notifying the change in the constitution of the Firm. MCK claims that there was no dispute that BK had signed the deed of retirement and therefore, it is not open for him to challenge the same.

18. Form-A of the Registration of Firms filed along with the Contempt Petition [Contempt Petition (Civil) no.715 of 2011 titled "M/S Rajendra Iron Mart v G.S. Patnaik"] was based on the Partnership Deed and mentioned BK as a partner. It was, however, averred by respondent no.1 that Form-A and Form-B of the Registration of Firms was signed by petitioner no.2 by not informing BK and further, the resolutions of other partners were not obtained by MCK in the legal proceedings filed on behalf of the Firm.

19. On 10.03.2011, by another Partnership Deed, the Firm was further reconstituted, comprising of only two partners with petitioner no.2 being one of the partners.

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20. On 14.12.2012, BK filed an Arbitration Petition no.491/2012 and OMP no. 1182/2012 against MCK claiming that he had been deprived of the proportionate share in the plot allotted by the DDA. BK further averred that MCK manipulated the Retirement Deed dated 19.01.2010, which showed BK to be retired from the Firm. Further, neither the retirement of BK nor the reconstitution of the Firm by the Partnership Deed dated 10.03.2011, comprising of only two partners, was informed to the DDA or to this Court. Moreover, BK also claimed that his retirement from the Firm was never discussed with him and the balance sheets of the Firm by the Partnership Deed dated 15.01.2008 were never settled and thus, based on the balance sheets of the Partnership Deed dated 15.01.2008, BK was owed a large amount owing to his alleged retirement from the Firm. Lastly, he claimed that the notice of change dated 12.09.2011, regarding the reconstitution of the Firm, was a fabricated document as it was submitted eighteen months after the alleged retirement of BK from the Firm.

21. In addition to the aforesaid Arbitration Petition, respondent no.1 also filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) in LPA no.196/2012 claiming that MCK intended to use the sale proceeds of the property for his own benefit and for the benefit of other partners and BK would be excluded from the benefit derived from the sale of the property.

22. BK, thereafter, by a legal notice dated 03.07.2012, sought to refer the disputes to arbitration. However, MCK, by a response dated 04.07.2012, refused adjudication of disputes by arbitration.

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23. On 18.12.2012, this Court passed an order allowing OMP no.1182/2012 and restrained MCK from entering into any negotiation regarding the property. However, BK alleged that MCK acted in breach of the order and created a third party interest in the property by accepting the sale consideration from M/s Arora Buildwell Pvt. Ltd and accepted part payment to the extent of ₹40 lacs. He further alleged that he was deprived of 33% share in the Firm. Further, by an order dated 22.07.2013, this Court allowed the Arbitration Petition no. 491/2012 and appointed ADJ D.S. Pawaria (Retd.) as the arbitrator to adjudicate the disputes between the parties.

Impugned Award

24. On 04.09.2013, BK filed his Statement of Claims before the Arbitral Tribunal. Before the Arbitral Tribunal, BK claimed an amount of ₹5,00,413/- as cost incurred by him towards litigation. Additionally, he also sought that an award be passed declaring the reconstitution of the Firm by the Partnership Deed dated 10.03.2011 and the Retirement Deed dated 19.01.2010 as illegal, invalid, null and void and unenforceable in law.

25. The Firm as well as MCK filed their Statement of Defence on 25.09.2013. However, no counter-claims were raised.

26. Given the stands taken by the parties, the Arbitral Tribunal framed the following issues for determination:

"22. Following issues were framed on 17.09.2014, after hearing both parties:- · Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 8 of 20 Signing Date:20.05.2022 I. Whether claimant retired from partnership deed after receiving Rs. 1,65,000/- from respondent? OPR.

II. Whether claimant is entitled for the relief claimed in the petition? OPC III. Relief."

27. The Arbitral Tribunal allowed the claims of BK by declaring him to be a partner of the Firm and declared the Partnership Deed dated 10.03.2011 and the Retirement Deed dated 19.01.2010 to be null, void and illegal. Additionally, the Arbitral Tribunal also awarded BK costs quantified at ₹4,00,413/-.

28. Aggrieved by the impugned award, the petitioners have filed the present petition.

Submissions

29. Mr Bindra, learned senior counsel appearing for the petitioners, assailed the impugned award essentially, on four fronts. First, he stated that Form-V was signed by BK, which informed the Registrar of Firms about his retirement from the Firm. Thereafter, he was deleted from the array of partners, which was clear from Form-C issued by the Registrar of Firms. Therefore, the Arbitral Tribunal erred in brushing aside the admitted primary documents, which were the Retirement Deed and the Partnership Deed that were duly signed by BK.

30. Second, he submitted that the Arbitral Tribunal had, without any evidence and contrary to the records, accepted that BK was a sleeping partner and thus, it was the duty of MCK to inform him about the Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 9 of 20 Signing Date:20.05.2022 formalities and requirements. Moreover, there was no plea in the Statement of Claims that BK was a sleeping partner.

31. Third, he submitted that the Arbitral Tribunal was wrong in holding that a notice was to be served to BK as per Clause 3 of the Partnership Deed. As per Clause 3 of the Partnership Deed, notice was to be given prior to determining the partnership. However, in the present case, the partners had agreed to retire with consent and thus, there was no reason to provide the notice.

32. Lastly, he submitted that BK had taken false pleas and these were clear from the contradictory statements made by him and his brother- in-law in the cross-examination. It was stated by BK that no documents could be signed by him in Delhi as he left for Jaipur early in the morning on 18.01.2010. However, in the testimony of his brother-in-law, it was stated that he reached Jaipur late in the evening on 18.01.2010.

Reasons and Conclusion

33. The only question to be addressed is whether the decision of the Arbitral Tribunal that BK had not retired from the Firm is erroneous and vitiates the impugned award on the ground of patent illegality.

34. It was BK's case that MCK and other respondents had manipulated the documents to reflect that BK had retired from the Firm.

35. Paragraph 9 of the Statement of Claims filed by BK is relevant and set out below:

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"9. That the Respondent No.2 in collusion and connivance with each other Respondents in order to deprive the Claimant from getting benefits of allotted plot to Respondent No.1 on the basis of manipulated/ fabricated/illegal documents now claim that the Claimant has retired from the respondent No.1 firm on 19.01.2010 and further claims to have reconstituted the Respondent No.1 firm by alleged Partnership Deed dated 10.3.2011. The Respondent No.2 in active collusion with Respondents No.2 & 3 have mis-utilised signed blank papers of the Claimant to show his retirement from the firm. The Respondent No.2 used to obtain signatures of Claimant on blank papers/stamp papers on the pretext of filing in DDA/Sales Tax or other authority for restoration of allotment and possession of the plot and for filing returns etc. The Respondents and particularly Respondent No.2 in collusion with other partners have abused & misused the faith & trust of Claimant. The Respondents and particularly Respondent No.2 obtained signatures of Claimant, who is a sleeping partner, on blank papers/stamp papers/printed blank performa by misrepresentation of facts and by misleading the Claimant. The Claimant was misled due to the old relation the families of partners share with each other and also because the Claimant is a partner in another Partnership Business in the name & style of M/s. Delhi Hardware Stores having office at 3482 Hauz Qazi, Delhi wherein Respondents are partners. However, in view of the instant dispute the Claimant has requested the concerned Bank to freeze account of Partnership Firm M/s. Delhi Hardware Stores. The Claimant never believed that the trust and faith reposed by him in partners would be abused and mis-utilised prejudicial to the interest of Claimant. The Claimant reasonably apprehends and believe that the signed blank papers/blank stamp papers/blank printed form apparently have been mis-utilised and Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 11 of 20 Signing Date:20.05.2022 illegally used by Respondents and particularly by Respondent No.2 in fabricating & manipulating documents to deprive the Claimant from his legal right and to show the Claimant's alleged retirement from Respondent No.1 out of greed and dishonesty."

36. As is apparent from the above, it is BK's case that he had signed blank documents, which were subsequently misused by MCK.

37. Thus, the principal question to be addressed by the Arbitral Tribunal was whether BK had signed any blank papers, which had been subsequently misused to reflect his retirement.

38. The evidence clearly established that BK had signed the Retirement Deed. He was shown the said document (Ex.CW1/28) and he identified his signatures on the said document. He was also shown the notice for change in constitution of the Firm (in Form-V) and he identified his signatures on that form as well.

39. It was also established that BK had not signed Form-V on 12/13.09.2011. MCK had testified that the said form was signed on 19.01.2010. Form-V is a pre-printed form and the other details including the names of the retiring partners have been typed. The date 12.09.2011 was also typed on the said form. In view of the testimony, it was apparent that BK had signed a blank Form-V as there was no occasion for MCK to fill in a future date of 12.09.2011 in that form.

40. However, a visual examination of the Retirement Deed indicates that it was not signed on a blank stamp paper. The Arbitral Tribunal had also not returned any finding that the blank stamp papers were signed Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 12 of 20 Signing Date:20.05.2022 by BK, which were subsequently misused by printing the Retirement Deed.

41. MCK had contested the allegation that BK had signed blank stamp papers on which the Retirement Deed was printed. Apart from the above, MCK had also stated that BK was a former employee of a bank and he was not expected to sign any blank document. Apart from that, MCK and BK were also involved in another litigation in relation to another partnership firm "M/s Delhi Hardware Store". In this regard, BK was cross-examined and in his cross-examination, he admitted that his mother had filed a suit in respect of the firm M/s Delhi Hardware Store, against MCK, respondent no.3 and one Mr Amit Mathur for partition and rendition of accounts. And, he had appeared as an attorney for his mother in those proceedings. He also admitted that he had sent a letter dated 16.06.2009 to Punjab and Sindh Bank, requesting it to freeze the accounts of the firm 'Delhi Hardware Stores'. He was shown the said letter dated 16.06.2009 (Ex.CW/R-2) and he had admitted the same. The extract of his testimony are set out below:

"I was partner with Respondent No. 2 firm M/s. Delhi Hardware Stores. Firm M/s. Delhi Hardware Stores was purchased from someone in 1960s. Exact year I do not remember My mother Bhagwati Devi filed a suit against firm M/s. Delhi Hardware Stores and Mr. Mahesh Chand Khandelwal, Smt. Snehlata Khandelwal and Mr. Amit Mathur for partition and rendition of accounts. (objected to by Ld. Counsel the Claimant being out of pleadings). I appeared as Attorney of my mother in that case before the court. The matter was referred to Arbitrator by court and I never appeared before the Arbitrator. The witness Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 13 of 20 Signing Date:20.05.2022 is asked to see the photocopy of the Award dated 03.05.2005 passed by Sh. B.L. Garg, Sole Arbitrator. Ld. Counsel for Claimant has raised objection saying that it is a photocopy and beyond pleadings. The Award passed by the Ld. Arbitrator is correct. Talks for settlement were going on between parties and this Award was passed later on when we stopped appearing before the Arbitrator. This is exhibited as CW1/R1. I have seen my signatures on points A, B and C on the document, Retirement Deed i.e. Ex. CW1/28. (Original Retirement Deed is seen and returned) and Form-V of Registrar of Firms. The signatures on points A, B and Care of mine."

xxxx xxxx xxxx "I asked Punjab & Sind Bank to freeze account of M/s. Delhi Hardware Stores. I do not remember such dates as to when I asked bank to freeze the account of M/s. Delhi Hardware. Stores. (Vol. I can produce that letter of request on next date). I might have asked Punjab and Sind Bank to freeze account of M/s. Delhi Hardware Stores in June 2008. It is correct that I submitted application dated 16.06.2009 Ex. CW1/R-2 to Punjab and Sind Bank in this regard."

42. As noted above, there is no dispute that the Retirement Deed was signed by BK; and, he had admitted his signatures on the said document. The Arbitral Tribunal had also concurred with the contention that a person, who has been litigating with his partners, would not put his signature on blank papers.

43. Notwithstanding the above, the Arbitral Tribunal found that MCK had failed to establish that BK had retired from the Firm. The reasons that persuaded the Arbitral Tribunal to arrive at a conclusion Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 14 of 20 Signing Date:20.05.2022 are, essentially, four-fold. First, the Arbitral Tribunal held that BK was a sleeping partner. Second, that MCK had not issued a three months' notice in writing, which according to the Arbitral Tribunal was necessary in terms of the Partnership Deed dated 15.01.2008. Third, that there was no credible evidence on record to establish that a sum of ₹1,65,000/- was paid to BK. Fourth, that the writ petition to seek allotment of the property in question was filed in the name of the Firm and no information was given to the Court regarding the Firm's re- constitution.

44. The Arbitral Tribunal had also noticed that the contempt petition was filed in this Court, after BK had allegedly retired from the Firm but it also reflected BK as a partner.

45. The Arbitral Tribunal disbelieved that the Retirement Deed was signed on 19.01.2010 as there was some variance in the testimony of RW-3 (Mr. Amit Mathur) and RW-2 (Mr. Rajiv Gupta) who were witnesses to the said Deed. Whereas, Mr. Amit Mathur had testified that the Retirement Deed was lying on the table, Sh. Rajiv Gupta (RW-2) had mentioned that the documents had been taken out from the drawer. Further, there was an inordinate delay in filing the Retirement Deed and Form-V with the Registrar of Companies.

46. BK's signatures on the Retirement Deed are admitted. And, since there is no finding that he had signed blank stamp papers on which the Retirement Deed was printed; this Court is unable to concur with the conclusion that BK continued to be a partner of the Firm.

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47. First of all, the Arbitral Tribunal has failed to return a finding with regard to the case set up by BK. As noticed above, it was his case that he had affixed his signatures on the blank papers and the said papers were manipulated/fabricated to reflect his retirement. Thus, the principal question to be addressed by the Arbitral Tribunal was whether the Retirement Deed - which is printed on a stamp paper dated 19.01.2010 (as is reflected on the rear side of the stamp paper) - was signed in blank and printed thereafter. There is no finding of the Arbitral Tribunal accepting BK's case that he had signed a blank paper and the Retirement Deed had been printed thereafter. There is no finding whether the Retirement Deed was manipulated or fabricated as alleged by BK.

48. Admittedly, BK had also filed a pre-printed form (Form-V), which clearly reflected that it was a notice for change in the constitution of the Firm. As noticed above, it is BK's case that MCK used to obtain his signatures "on blank papers / stamp papers on the pretext of filing in DDA / Sales Tax or other authority for restoration of allotment and possession of the plot and for filing returns etc." There is no explanation why BK had signed a form for change in the constitution of the Firm. That was not a form required either for the purposes of filing in the DDA or any Sales Tax Authority or for restoration of the allotment of the property in question.

49. The Arbitral Tribunal found that no prior notice was issued for retirement of BK and the same was required in terms of the Partnership Deed. The said conclusion is erroneous. The Partnership Deed Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 16 of 20 Signing Date:20.05.2022 expressly provided that the partnership was at will. Clause 3 of the Partnership Deed provides "that partnership may be determined by other partner giving to the others three months notice in writing". Therefore, a notice for determination of the partnership is necessary if one or more partners decided to dissolve the Firm. This would clearly have no application where two of the partners have by consent agreed to retire from the Firm and have executed a Retirement Deed to the aforesaid effect.

50. It is material to note that there is no finding that MCK had manipulated the documents or perpetuated a fraud that vitiated the Retirement Deed. In absence of any such findings, the Retirement Deed could not be ignored.

51. There is yet another material aspect, which is relevant. According to BK, DDA had demanded a sum of ₹2,21,18,743/- from the Firm for allotting the property in question and MCK had deposited the same by challan no.2294 dated 09.04.2013. The Arbitral Tribunal also noted that the Firm did not carry on any business or possess any valuable assets. Paragraph 15 of the impugned award is relevant and set out below:

"15. According to claimant, DDA demanded Rs.

2,21,18,743/- from respondent no.1 towards plot in question and respondent no.2 deposited the said amount vide Challan NO. 22995 dated 09.04.2013. According to claimant, Respondent no. 1 firm practically carries no business and no valuable assets except plot in question allotted to respondent no. 1 by DDA. According to claimant, respondents apparently colluded with each other Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 17 of 20 Signing Date:20.05.2022 to deprive him, his share to the extent 33% in the respondent firm."

52. BK's claim was, essentially, to secure 33% of his share in the property. However, there was no mention regarding his liability to pay for his share. During the course of the proceedings, this was put up by this Court to the learned counsel for BK and he had agreed that BK had indicated that he was agreeable to pay his share of the consideration along with 9% interest per annum from the date on which the amount was paid to the DDA. This was recorded in the order dated 17.02.2021. The said order is reproduced below:

"1. The petitioner has filed the present petition impugning an arbitral award dated 31.01.2019, whereby the Arbitral Tribunal had upheld respondent no.1's contention that he is a partner in the firm (M/s Rajendra Iron Mart) with 33% share.

2. Admittedly, the said firm does not have any liquid resources. However, it was allotted an industrial plot of land by Delhi Development Authority (DDA). The consideration for the said plot admeasuring 605 sq. yards bearing No. 179, Block-A, Okhla Industrial Area, Phase- I, New Delhi was paid substantially by petitioner no. 2. It is not disputed that the petitioner No.2 had paid an amount of ₹2,21,18,743/- on 09.04.2013 for the said plot.

3. It is apparent that the disputes are essentially in relation to the said plot of land, as concededly, the firm is not carrying on any new business. By virtue of the impugned award, the respondent no.1 can claim 33% undivided share in the said plot of land as the same belongs to the said firm. However, it is not disputed that the respondent has not paid any amount towards Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 18 of 20 Signing Date:20.05.2022 consideration of the said plot of land. In the aforesaid context, Mr Bindra learned counsel for the petitioner, had submitted that the petitioners would have no objection if the respondent also contribute 33% of the said consideration along with interest.

4. Mr Kela, the learned counsel appearing for respondent no. 1 fairly states, on instructions, that the said suggestion is reasonable.

5. After some discussions, the parties have agreed on the rate of interest as well. It is agreed that respondent would pay his share of 33% of the consideration with 9% interest per annum which would run from 09.04.2013 till the date of payment. However, Mr Kela states that respondent no. 1 would require some time to make the payment.

6. Since the parties have agreed to the terms of the settlement, this Court considers it apposite to adjourn the present petition to enable the parties to reduce the terms of settlement in writing. Mr Bindra states, that he shall do so, and he shall also forward a copy of the same to Mr Kela.

7. Let the same be done within a period of one week from today.

8. List on 05.03.2021."

53. However, thereafter BK and his counsel sought adjournments on several occasions. BK changed his counsel on 19.12.2021 and stated that he was not willing to abide by the suggestion for paying his 33% share in the property.

54. Consequently, the petition was heard on merits.

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55. The learned counsel for BK was unable to point out any infirmity with the Retirement Deed. There was no visible feature which could even remotely indicate that the Retirement Deed was printed after the same was signed by all the partners. As stated above, in absence of any adverse finding regarding manipulation or fabrication of the said Retirement Deed, the same could not be ignored.

56. In view of the above, the impugned award is vitiated by patent illegality and set aside.

57. The petition is allowed in the aforesaid terms. The parties are to bear their own costs. All pending applications are also disposed of.

VIBHU BAKHRU, J MAY 20, 2022 RK/gsr Signature Not Verified Digitally Signed By:Dushyant Rawal OMP(COMM) No.135//2019 Page 20 of 20 Signing Date:20.05.2022

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