Bombay High Court
Haresh Advani Of Mumbai vs Suraj Jagtiani on 24 April, 2015
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
ppn 1 arbp-846.14(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.846 OF 2014
Haresh Advani of Mumbai )
Indian Inhabitant, residing at 101, )
Prabhu Kutir, Altamount Road, )
Mumbai - 400 026. ) .. Petitioner
Vs.
Suraj Jagtiani )
presently and temporarily residing at 16, )
Plam Court, 152, M.Karve Road,
ig )
Churchgate, Mumbai- 400 020. ) .. Respondent
---
Mr.Aspi Chinoy, Senior Advocate a/w Ms. Soma Singh a/w Mr.Rahul
Jain a/w Mr. Shubro Dey i/by M/s. RES Legal for the petitioner.
Mr.Shyam Mehta, Senior Advocate a/w Mr.Akshay Patil a/w Ms.Pooja
Kothari i/by M/s.Federal & Rashmikant for the respondent.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 4th March 2015
PRONOUNCED ON : 24th April 2015
JUDGMENT :-
. By this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short "the said Arbitration Act), the petitioner seeks to impugn the arbitral award dated 22 nd March 2014 allowing some of the claims made by the respondent. Some of the relevant facts for the purpose of deciding this petition are as under :
2. The petitioner herein was the original respondent in the ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 2 arbp-846.14(j).doc arbitral proceedings whereas the respondent herein was the original claimant. M/s.Regency Hotels Pvt. Ltd. was the owner of a plot of land at Village Sahar, Talukar Andheri. In the year 1995, the issued capital of M/s.Regency Hotels Pvt. Ltd. was 24,500 shares of Rs.100/- each i.e. Rs.24,50,000/- of which 11,025 shares (45%) were held by the petitioner, 11,025 shares (45%) was held by the respondent and remaining 2,350 shares (10%) was held by one Gul Kripalani.
3. By an Agreement dated 28th July 1996, the said three shareholders agreed to sell 50% of their respective shareholding in the said company to one Cherish Investments Pvt. Ltd. The said agreement with the said Cherish Investments Pvt. Ltd. was subsequently terminated by the shareholders of the said M/s.Regency Hotels Pvt. Ltd. (for short 'the said company').
4. On 6th July 1998, the petitioner and the respondent entered into an agreement for the sale of 11,025 shares (45%). In the said agreement, the respondent agreed to sell his entire shareholding in the said company for consideration of Rs.5.8 crores payable in installments till 31st May 1999. Under the said agreement dated 6th July 1998, under clause 4.1.1, it was provided that in the event of failure or negligence on the part of the petitioner to pay the consideration in accordance with clause 3, the respondent was entitled to terminate the said share sale agreement (SSA) and forfeit the amount paid by the petitioner subject to maximum of Rs.1,20,00,000/-. Under clause 5 of the agreement, the parties appointed Mr. Mahesh Jethmalani as the Escrow Holder and agreed to deposit a copy of SSA along with shares and transfer forms duly executed by the respondent in favour of the petitioner and also a ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 3 arbp-846.14(j).doc power of attorney in favour of Escrow Holder authorising him to execute fresh transfer forms in favour of the petitioner on completion.
5. By a letter dated 6th July 1998 addressed to the petitioner, the respondent recorded further understanding between the parties in connection with the SSA. It was agreed that the respondent would not exercise any voting rights in respect of the said shares during the subsistence of SSA and would execute a power of attorney in favour of the petitioner authorising him to attend the meetings of the shareholders of the said company on behalf of the respondent and to vote in respect of the said shares in such manner as he deemed fit and proper.
6. On 6th July 1998, the parties entered into a supplementary agreement inter alia recording that the petitioner was aware of the Cherish agreement and had agreed to purchase the said shareholding of the respondent in the said company subject to benefit and burden of the Cherish agreement.
7. On 6th July 1998, the parties addressed a letter to Escrow Holder Mr. Mahesh Jethmalani informing him of his appointment as the Escrow Holder as well as the terms of the escrow and depositing the documents mentioned in the SSA along with duly executed transfer forms and the power of attorney executed by the respondent.
8. It is the case of the respondent that during the period between 6th July 1998 and 12th January 1999, the petitioner paid to the respondent only the first 2 installments payable under the said SSA along with interest on account of delayed payments of the said ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 4 arbp-846.14(j).doc installments. On 12th January 1999, the parties entered into a supplementary agreement inter alia rescheduling the outstanding payments to be made by the petitioner to the respondent under the said SSA. The petitioner acknowledged that he had defaulted in making payments of the amounts under the said SSA to the respondent and agreed that the balance sale consideration including interest amounting to Rs.2,71,90,000/- payable under the SSA would be paid by the petitioner to the respondent in the manner stipulated therein. Certain consequential modifications to the said SSA were recorded therein.
9.
On 15th September 1999, the respondent terminated the said SSA. The petitioner through his advocate's letter dated 13 th October 1999 replied to the letter of termination dated 15 th September 1999. The respondent through his advocate's letter dated 26th October 1999 replied to the said letter dated 13th October 1999.
10. It is the case of the respondent that on 15 th November 2000, the respondent entered into an agreement with one M/s. Accumulate Investments Pvt. Ltd. (for short 'the said Accumulate'). Under the said agreement for sale and transfer of shares, the respondent purported to sell to the said Accumulate 1225 shares of the said company constituting 5% of its paid up share capital at the rate of Rs.2,040/- per share, aggregating to Rs.25,00,000/-. The respondent addressed a letter to the said Accumulate enclosing a post dated cheque for Rs.25,00,000/- in favour of Accumulate towards repayment of the loan amount of Rs.25,00,000/- and two other post dated cheques for Rs.2,25,000/- and Rs.1,50,000/- in favour of Accumulate towards interest on the said loan. The respondent executed a Demand Promissory Note in favour of the ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 5 arbp-846.14(j).doc said Accumulate in the sum of Rs.25,00,000/-. The respondent also executed an undertaking in favour of the Accumulate to honour the said cheques for the sum of Rs.25,00,000/-. The respondent also executed a Personal Guarantee in favour of the Accumulate guaranteeing repayment of the said loan of Rs.25,00,000/- along with interest. The respondent acknowledged the receipt of two cheques for Rs.15,00,000/- and Rs.10,00,000/- respectively as and by way of loan.
11. During the period between 12th January 1999 and 5th October 2001, the petitioner paid further amounts aggregating to Rs.79,27,250/- pursuant to the supplementary agreement dated 12 th January 1999. Thus, the petitioner paid a total sum of Rs.2,87,27,250/-
to the respondent under the said SSA inclusive of interest on delayed payments. It was the case of the respondent that an amount of Rs.3,07,90,250/- was still outstanding and due and payable by the petitioner to the respondent under the SSA inclusive of interest towards the purchase of the respondent's shareholding in the said company.
12. On 5th October 2001, the parties entered into an agreement whereby the respondent agreed to treat the said amount of Rs.2,87,27,250/- paid by the petitioner to the respondent under the said SSA as the sale consideration towards the purchase of 8563 shares constituting approximately 35% of the paid up share capital of the said company and to transfer the said shares to the petitioner. The parties agreed that they would issue suitable instructions to the Escrow Holder Mr.Mahesh Jethmalani to hand over the said 8563 shares of the respondent to the New Escrow Holder M/s. Crawford Bayley & Co.
who would hold the same in escrow. The parties further agreed that
::: Downloaded on - 25/04/2015 00:00:40 :::
ppn 6 arbp-846.14(j).doc
the parties would instruct the New Escrow Holder to hand over the said shares along with the transfer forms to the petitioner.
13. On 6th October 2001, the parties entered into an agreement whereby the respondent agreed to sell to the petitioner his remaining 2462 shares of the said company at the rate of Rs.12,506/- per share aggregating to Rs.3,07,90,250/- on the terms and conditions set out therein. Under the said agreement, the respondent was given an option to acquire the shares of the said company on the gross saleable area i.e. approximately 8.725% of gross ig saleable area of the said land or constituting 8.725% of gross salable area without payment of development charges and net of all expenses or approximately 17,450 sq.ft. of gross salable area of land or constituting 17.45% of gross salable area with payment of Rs.2,500/- per sq.ft. towards development charges to be made within 30 days of exercise of the option. Under the said agreement dated 6th October 2001, the parties agreed that the said 2462 shares along with transfer form in respect thereof shall be kept deposited with the New Escrow Holder M/s. Crawford Bayley & Co.
and the same shall be handed over to the petitioner after execution of the agreement, if so required by the petitioner in writing. Parties further agreed that as a security for the petitioner complying with his obligations under the said agreement, the petitioner would deposit with the New Escrow Holder 6193 shares of the said company constituting 25.1% of the issued and paid up share capital of the said company to be held in escrow in terms of clause 5 of the said agreement.
14. In the month of October 2001, the parties executed various undated documents relating to the agreements dated 5th and 6th October ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 7 arbp-846.14(j).doc 2001. On or about 15th October 2001, the said company M/s.Regency Hotels Pvt. Ltd. and Golden Angel Hotel and Construction Limited entered into an agreement whereby the said company and the said Golden Angel Hotel and Construction Limited agreed to develop the said property of the said M/s.Regency Hotels Pvt. Ltd. on the terms and conditions set out therein.
15. During the period between 6 th October 2001 and 7th November 2001, the petitioner secured possession of the entire 11025 shares of the respondent in the said company M/s.Regency Hotels Pvt.
Ltd. from New Escrow Holder M/s. Crawford Bayley & Co. On 7 th November 2001, the said 11025 shares of the respondent in the said company were transferred in the name of the petitioner.
16. On 12th January 2002, the said Accumulate addressed a letter to the respondent regarding repayment of the loan of Rs.25,00,000/-
taken by the respondent from the said Accumulate. In the said letter, the said Accumulate referred to the said loan as well as the documents executed by the respondent in favour of the Accumulate towards repayment of the said loan with interest. The said Accumulate informed the respondent that they would be presenting the cheques within the next 15 days and if the same were dishonoured, it would seek relief from the appropriate authority.
17. By a letter dated dated 12th January, 2002, the said M/s.Accumulate forwarded a copy of the agreement for sale and transfer of shares dated 15th November, 2000 held by the petitioner and the respondent to M/s.Regency Hotels Pvt. Ltd. It was alleged by the said ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 8 arbp-846.14(j).doc M/s.Accumulate in the said letter that the respondent had agreed to sell 1225 fully paid up equity shares of the said company to the said M/s.Accumulate for a consideration free from all encumbrances, charges and lien at the rate of Rs.2040/- per share in total aggregating to Rs.25 lacs only. The said M/s.Accumulate requested the said M/s.Regency Hotels Pvt. Ltd. to issue necessary shares in the name of M/s.Accumulate from the shareholding to the respondent.
18. In the month of February, 2002 the petitioner and the respondent entered into a writing "Letter Agreement" duly signed by both the parties. It was recorded that all the capitalized terms therein shall have a meaning set out in the agreement dated 6th October, 2001 entered into between the parties. By the said writing, the parties agreed that the new date of digging would be 5th February, 2002 and accordingly the respondent would be entitled to exercise the option set out in the agreement on or before 31st January, 2002 or within 90 days from the date of digging which was later by a written intimation in that behalf to the petitioner. It was clarified that the said agreement would to the extent stated therein stood amended and shall form integral part of the agreement dated 6th October, 2001.
19. On 2nd May, 2002, the parties entered into another writing "Later of Agreement". Under the said writing, the parties agreed that the date of digging was further revised to 15th September, 2002. It was agreed that the respondent shall be entitled to exercise the option set out in the agreement on or before 31st January, 2002 or within 90 days of the date of digging whichever was later by written intimation in that behalf to the ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 9 arbp-846.14(j).doc petitioner. The agreement dated 6th October, 2001 stood amended to the extent stated in the said Letter Agreement which was agreed to be formed as a integral part of the agreement dated 6th October, 2001.
20. On or about 30th November, 2002, the parties entered supplemental agreement thereby agreeing to vary the terms of the agreement dated 6th October, 2001. It was agreed that notwithstanding anything to the contrary contained in the agreement dated 6 th October, 2001, it had been agreed between the parties that the respondent shall opt to acquire from the petitioner through M/s.Regency Hotels Pvt. Ltd.
8.725% of the gross saleable area of the development referred to in clause 4.1(ii) of the said agreement. It was further agreed that in consideration of such option, the respondent thereby waived all rights to receive a sum of Rs.3,07,90,250/- from the petitioner under clause 3.2 of the said agreement. The petitioner thereby confirmed that he as principle shareholder of the said M/s.Regency Hotels Pvt. Ltd. would cause the said M/s.Regency Hotels Pvt. Ltd. to transfer to the respondent or his nominee the said property. The respondent herein undertook to pay the said M/s.Regency Hotels Pvt. Ltd. proportionate TDR charges incurred.
21. By a letter dated 30th November, 2002 sent by the parties jointly to Mr.Haresh M. Jagtiani, who was then appointed as an arbitrator informed that those parties were parties to the arbitration. The respondent had opted for space as per the agreement referred to under the said letter and that amount of space would be given by M/s.Regency Hotels Pvt. Ltd. to the respondent or his nominee. The method / modalities of such allotment of space would be worked out in due course between the ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 10 arbp-846.14(j).doc parties. In the first week of December, 2002, the respondent addressed a letter to the escrow holder M/s.Crawford Bayley & Co. forwarding a copy of the supplemental agreement dated 30th November, 2002 and informing that they may proceed with their commitment as stipulated in the agreement dated 6th October, 2001.
22. On 9th December, 2002, the said escrow holder sent a letter to the respondent by e-mail acknowledging the receipt of the letter sent by the respondent along with the supplemental agreement and informed the respondent that the escrow holder was in receipt of the letter from the petitioner requesting the escrow holder to retain the escrow shares lying with them pursuant to the supplemental agreement and stating that the escrow holder would be releasing the said escrow shares to the petitioner.
23. On 9th December, 2002, the respondent sent an e-mail to the said escrow holder seeking views of the escrow holder whether the respondent was secured in that exercised option and that the space would be forthcoming to him as M/s.Regency Hotels Pvt. Ltd. was a party to the supplemental agreement.
24. It is the case of the respondent that the said escrow holder retained the shares of the petitioner constituting 25.1% of the shares of M/s.Regency Hotels Pvt.Ltd. which was lying as security with the escrow holder under the said agreement of 6th October, 2001 to the petitioner.
25. Some time in the year 2003, the petitioner demanded Rs.30 lacs from the respondent towards his proportionate share of the cost of ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 11 arbp-846.14(j).doc TDR. It is the case of the respondent that in response to the said demand, the respondent suggested relinquishing part of the area / space which was to be provided to him under the said supplemental agreement in lieu of the payment of Rs.30 lacs.
26. On 29th April, 2003, the petitioner sent a letter by e-mail to the respondent seeking his concurrence for giving up his area or paying the said amount of Rs.30 lacs.
27. On 2nd May, 2003, the respondent replied to the said e-mail dated 29th April, 2003 to the petitioner and confirmed that he was ready to receive the required space in lieu of Rs.30 lacs in respect of his contribution towards the cost of TDR.
28. On 7th May, 2003, the petitioner through his e-mail to the respondent confirmed that it was agreed between the parties that the entitlement of the respondent to space would be reduced by 1500 sq. ft. in respect of his contribution towards the TDR.
29. On 26th December, 2003, M/s.Regency Hotels Pvt. Ltd. through the petitioner addressed a letter to the respondent confirming that after taking into consideration the adjustment of the TDR expenditure which was adjusted from the respondent's (1500 sq.ft.), the said M/s.Regency Hotels Pvt. Ltd. confirmed that the balance 7250 sq. ft. would be given to the respondent by the company from any of the offices/designated space from the office Nos.102, 201, 501, 502, 602 and
202. The said company however, reserved right to allot to the respondent ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 12 arbp-846.14(j).doc space from whichever the area it choses. In the said letter, M/s.Regency Hotels Pvt. Ltd. informed the respondent that if the total sale of the area of construction was more than 1,00,000 sq. ft., then the respondent would be entitled to incremental percentage as per the exiting agreements. The respondent will have to pay all the applicable taxes for transfer of the area by the company in his name or that of his nominee.
30. By a letter dated 2nd January, 2004 to the respondent, the said M/s.Regency Hotels Pvt. Ltd. informed that there was a error in the areas specified in the letter dated 26th December, 2003 and corrected those numbers.
31. By a letter dated 16th January, 2004 to the respondent, the petitioner informed that the petitioner at best could take 25% of the market value and deemed it as his cost and informed that subsequently on the 75%, the respondent will have to pay approximately 38% towards tax which would mean that either 25% of the total area would be reduced which would be approximately 2000 sq. ft. or in the alternate, Rs.80 lacs wold have to be given to the company for allotment of the entire space.
32. On 27th July, 2004, the said M/s.Accumulate addressed a letter to the Board of Directors of the said M/s.Regency Hotels Pvt. Ltd. and once again reiterated that the respondent had sold to the said M/s.Accumulate 1225 equity shares of the said M/s.Regency Hotels Pvt. Ltd. for a sum of Rs.25 lacs and requested the said M/s.Regency Hotels Pvt. Ltd. to transfer 5% of the equity shares of the respondent in their name. The said M/s.Accumulate also requested the said M/s.Regency ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 13 arbp-846.14(j).doc Hotels Pvt. Ltd. not to transact 5% equity shares till such time they issued to the said M/s.Accumulate those shares and to ensure that no lien was created on their shares till they were issued to them. The said M/s.Accumulate threatened that if those shares were not transferred immediately or any lien was created on that, they shall be constrained to adopt legal measures to protect their rights. A perusal of the said letter does not indicate that a copy of the said letter was forwarded to the respondent by the said M/s.Accumulate.
33. During the period between 27th July, 2004 and 6th August, 2004, the petitioner forwarded a copy of the letter dated 27 th July,2004 addressed by the said M/s.Accumulate to the respondent.
34. On 6th August, 2004, the respondent informed the petitioner that the said M/s.Accumulate was wrongly trying to create the troubles which did not exist and that the same did not concern the petitioner and would be settled between the respondent and the said M/s.Accumulate.
35. On 2nd September, 2004, the petitioner on the letter head of M/s.Regency Hotels Pvt. Ltd. addressed a letter to the director of the said M/s.Accumulate in response to the letter dated 27th July, 2004 after taking legal advise from his solicitors M/s.Malvi Ranchoddas & Co. and replied that the respondent therein was no longer shareholder of the said M/s.Regency Hotels Pvt. Ltd. and has disposed off his shareholding in the month of October, 2001. The said M/s.Accumulate was further informed that the said M/s.Regency Hotels Pvt. Ltd. was not concerned with any transactions made by the respondent and therefore, could not ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 14 arbp-846.14(j).doc adhere to the request made by the said M/s.Accumulate for transfer of shares. They were further informed that they could seek redressal from the respondent in any manner they would choose. The said letter was signed by the petitioner.
36. On 27th October, 2004, the petitioner sent an e-mail to the respondent and informed of his alleged liability to pay the stamp duty on the acquisition of TDR by M/s.Regency Hotels Pvt. Ltd. and called upon the respondent to pay Rs.1.50 lacs towards the same. The respondent was informed that the said amount was an estimated amount and the petitioner would confirm the exact amount to the respondent by 29 th October, 2004. The petitioner also in the alternate suggested that the petitioner may have to dispose of further area to fund the stamp duty.
37. It is the case of the respondent that in the month of November, 2004, the respondent was detained in Shanghai, China.
38. In the month of December, 2004, the construction of the building Prime Corporate Park on the said property of M/s.Regency Hotels Pvt. Ltd. was completed. The total saleable area constructed was 1,14,000 sq. ft.
39. In the month of February 2005, the brother of the respondent Mr.Rajiv Jagtiani contacted the petitioner and informed that he was the constituted attorney of the respondent and was authorized to deal with the matters relating to the agreements between the parties and about the entitlement of the respondent to the space mentioned thereunder.
::: Downloaded on - 25/04/2015 00:00:40 :::ppn 15 arbp-846.14(j).doc
40. On 14th February, 2005, the petitioner addressed a detailed e-
mail to the wife of the respondent stating that the respondent was entitled to 8.75% of the saleable area in the building in respect of the transfer of his 10% shareholding in M/s.Regency Hotels Pvt. Ltd. to the petitioner. The petitioner alleged that M/s.Accumulate had sent an official letter to the petitioner regarding the amounts owed to him by the respondent against which the respondent had sold 5% of the shares of M/s.Regency Hotels Pvt. Ltd. and had promised to give him 2000 sq. ft. from his entitlement. It was stated that the petitioner did not acquire the 10% of the shareholding of the respondent in the said M/s.Regency Hotels Pvt.
Ltd. since the same was towards the area that the petitioner had to allot to the respondent but at the same time had to bear the extra burden which the petitioner was not liable. The petitioner made a suggestion that only way out for the petitioner appeared to be to return the said 10% shareholding to the respondent.
41. On 15th February, 2005, the brother of the respondent had sent an e-mail to the petitioner informing that he was in possession of the power of attorney executed by the respondent and requested the petitioner to contact him then the petitioner was back to town to enable him to see the documents which M/s.Accumulate had submitted.
42. On 21st February, 2005, the petitioner sent an e-mail to the respondent's brother informing that he was in town just for an evening and requested him to visit his office to look at the documents relating to M/s.Accumulate.
::: Downloaded on - 25/04/2015 00:00:40 :::ppn 16 arbp-846.14(j).doc
43. On 5th July, 2005, the petitioner terminated the agreements and informed the respondent that the captioned shares were lying in the safe custody of the office vault of the petitioner with transfer forms appended in favour of the respondent to be handed over to the respondent or his authorized representative who may be appointed by the respondent to receive the same under the instructions of the petitioner. The petitioner alleged that in the facts and circumstances of the case, the option exercised by the respondent under the supplemental agreement no longer survived and all the rights and objections in respect of the agreements stood terminated.
44. On 24th March, 2006, M/s.Accumulate addressed a letter to M/s.Regency Hotels Pvt. Ltd. through the petitioner alleging that the statement made in the said letter dated 2nd September, 2004 that the respondent was no longer shareholder of M/s.Regency Hotels Pvt. Ltd.
was completely false. It was alleged that the respondent had not transferred his shares and the same still stood in his name in the company's records. The said M/s.Accumulate threatened that if the said company did not transfer 1225 shares in favour of M/s.Accumulate within 15 days, they would take up the matter with the Company Law Board and would take necessary steps to secure their rights. A copy of the said letter however, was not sent to the respondent.
45. It is the case of the respondent that on 3 rd May, 2006, there was a meeting between the petitioner and the brother of the respondent. On 6th May, 2006, the petitioner addressed a letter to the brother of the respondent stating that the brother of the respondent had asked the ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 17 arbp-846.14(j).doc petitioner to sent the transfer forms for transfer of 10% shareholding of the said M/s.Regency Hotels Pvt. Ltd. from the petitioner to the respondent with a view to put to an end to the matter. It was further stated that the brother of the respondent had intimated that the process of signing of the transfer forms and paying the transfer fees would be competed by the brother of the respondent within a week.
46. By a letter dated 19th May, 2006 to the petitioner, the brother of the respondent pointed out that the statements made by the petitioner in his letter dated 6th May, 2006 were false and incorrect and that he had never requested the petitioner to send any transfer forms nor had he agreed to sign any such transfer forms. He also further stated that there was agreement between the petitioner and the brother of the respondent and that the same was falsely recorded by the petitioner in the said letter.
47. On 29th May, 2006, the said M/s.Accumulate sent a notice through their advocate to M/s.Regency Hotels Pvt. Ltd. and called upon the said company along with the respondent herein to forthwith complete all the statutory formalities contemplated under the provisions of the Company Act, 1956 to give effect to the transfer contemplated under the share transfer agreement 10 days from the date of receipt of the notice and thereupon to take legal action against them in case their failure to comply with as requisitioned.
48. The respondent through his advocate's letter dated 14th August, 2006 replied to the letter dated 5th July, 2005 addressed by the petitioner and denied the allegations made thereunder. The respondent ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 18 arbp-846.14(j).doc stated that the respondent had never entered into agreement with the said M/s.Accumulate for sale of 1225 shares. The respondent also conveyed that since the said shares were in possession of the petitioner, it would clearly show that there was no security and/or lien in favour of any third party in respect of the said shares which were lying with the petitioner along with duly transferred forms. By the said letter, the respondent through his advocate called upon the petitioner to hand over constructed area of 8447 sq. ft. in the said building constructed on the plot of land of the company within four weeks from the date of receipt of the said letter and threatened to file appropriate proceedings in case of failure on the part of the petitioner to comply with.
49. On 23rd August, 2006, the respondent filed a petition under section 9 of the Arbitration & Conciliation Act, 1996 (No.382 of 2000) in this Court inter-alia seeking demarcation of 8447 sq. ft. area in the building constructed by the said M/s.Regency Hotels Pvt. Ltd. and and prayed for injunction.
50. On 3rd July, 2008, the respondent herein filed a suit (No.2204 of 2008) against the petitioner and the said M/s.Regency Hotels Pvt. Ltd. for various reliefs.
51. On 6th November, 2007, the respondent filed statement of claim before the arbitral tribunal inter-alia praying for declaration that the agreement dated 6th October, 2001 duly altered / modified / amended by the supplemental agreement dated 30th November, 2002 was valid, subsisting and binding upon the parties and applied for specific ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 19 arbp-846.14(j).doc performance of the said agreement. In the statement of claim filed by the respondent, the respondent had also impleaded the said M/s.Regency Hotels Pvt. Ltd. as respondent No.2. On 21 st July, 2008, the respondent made an application before the learned arbitral tribunal inter-alia praying for deleting the name of the said M/s.Regency Hotels Pvt. Ltd. as a party to the arbitral proceedings.
52. On 28th August, 2008, the respondent made an application for amendment of the statement of claim. By an order dated 6 th /8th September, 2008, the arbitral tribunal allowed the amendment as prayed for by the respondent, including deletion of M/s.Regency Hotels Pvt. Ltd. from the arbitral proceedings.
53. On 16th September, 2008, the respondent filed Chamber Summons (No.1358 of 2008) in the said Suit No.2204 of 2008, inter-alia prayed for deleting the name of the petitioner, who was respondent no.2 in the said proceedings.
54. The respondent made various amendment applications in the arbitration proceedings which were allowed by the arbitral tribunal. The petitioner filed additional written statement in reply to the amendment to the statement of claim. The arbitral tribunal finalized the issues. It is the case of the petitioner that no issue with regard to acquiescence and waiver was framed by the arbitral tribunal.
55. In the month of June, 2012, the respondent applied for further amendment for amending the prayers by addition of prayer (b-i), ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 20 arbp-846.14(j).doc
(a) and (g) to the statement of claim. By the said amendment, the respondent prayed that the petitioner be ordered to requisition an extra general body meeting and to pass a resolution for demarcation of 8447 sq. ft. and to authorize the petitioner to execute a deed on behalf of the company for transferring the said area to the respondent. By prayer (b-a),
(h) to (j), the respondent required the petitioner to hand over possession of the said area of 8447 sq. ft. on behalf of the said company and to do all things by its officer for conveying the title of the said property to the respondent herein. By an order dated 27th August, 2012, the arbitral tribunal allowed the said amendment and permitted the petitioner to file an additional written statement. On 22nd September, 2012, the petitioner filed his additional written statement.
56. On 13th October, 2012, the respondent filed an application to strike of paragraphs 4 (part) and paragraphs 5 and 6(i) to (xiv) of the additional written statement. By an order dated 21st December, 2012, the arbitral tribunal allowed the application filed by the respondent and struck off the said paragraphs of the additional written statement filed by the petitioner. On 4th January, 2013, the arbitral tribunal gave reasons as to why the application of the respondent to strike off the paragraphs from the written statement was allowed.
57. On 22nd March, 2014, two of the arbitrators rendered a majority award holding that in the facts and circumstances of the case, the prayer of specific performance of the suit agreements ought not to be granted to the respondent herein and he should be awarded compensation in lieu thereof. The arbitral tribunal awarded a sum of Rs.3,38,00,000/-
::: Downloaded on - 25/04/2015 00:00:40 :::ppn 21 arbp-846.14(j).doc by way of compensation against the petitioner herein and payable to the respondent with interest at the rate of 18% from July, 2005 to February, 2014 i.e. till the pronouncement of the said award. By the said award rendered by majority, the petitioner was directed to pay a sum of Rs.8,65,28,000/- by the end of February, 2014. It was further declared that the respondent herein was also entitled to interest at the rate of 18% p.a. on the sum of Rs.3,38,00,000/- with effect from the date of the award till the date of payment. In the majority award, the petitioner was also directed to pay a sum of Rs.1,25,10,450/- as and by way of arbitration cost to the respondent.
58. By a dissent award rendered by one of the arbitrator dated 22nd March, 2014, he agreed with the majority view that the claimant had made out to a case entitling him to relief in terms of prayers (b-a), (a) to
(j) of the statement of claim and he was entitled to relief in terms of (b-a),
(g) to (j) against the property in question belonging to a party which was not before the arbitral tribunal. In the said dissenting award, the learned arbitrator did not agree that in those circumstances the claimant should be awarded compensation as set out in the majority award. He held that in the present case in the absence of the owner of the property before the arbitral tribunal, it was not lawful for the arbitral tribunal to grant specific performance and that was recognized in the majority award. He held that the provisions of section 21 of the Specific Relief Act did not apply and no compensation could be awarded to the claimant. In the minority award the learned arbitrator made an award in favour of the claimant in terms of prayers (ba), (a) to (f) of the statement of claim. The petitioner has impugned the award dated 22nd March, 2014 passed by the learned ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 22 arbp-846.14(j).doc arbitrators in this petition under section 34 of the Arbitration & Conciliation Act, 1996.
59. Mr.Chinoy, learned senior counsel for the petitioner submits that the petitioner had never given up his right of title on 14 th February, 2005. The arbitral tribunal did not consider the letter of termination dated 5th July, 2005, letter dated 15th February, 2004 and the letter of the petitioner dated 21st February, 2005 thereby giving notice to the brother of the respondent to take inspection of the records.
60. Learned senior counsel submits that the waiver of right to terminate and waiver of right to title are two different rights and cannot be mixed up. The arbitral tribunal however, has mixed up two separate rights with each other by holding that the termination of the agreements by the petitioner was invalid. He submits that the right to title cannot be waived. Reliance is placed on section 17 of the Specific Relief Act and it is submitted that the title has to be made clear by the vendor which the respondent had failed to clear. He submits that though the claim of M/s.Accumulate was not resolved by the respondent admittedly, the arbitral tribunal instead of dismissing the entire claim of the respondent has granted an order of compensation in favour of the respondent. The respondent had no clear title even till date of the award. The arbitral tribunal has granted specific performance only on the ground that the termination was illegal. Learned senior counsel place reliance on the judgment of this Court in the case of Bai Dosibai vs. Bai Dhanbai, reported in BLR, 1925 Bombay 85 = XXVI The Bombay Law Reporter, 1924.
::: Downloaded on - 25/04/2015 00:00:40 :::ppn 23 arbp-846.14(j).doc
61. Learned senior counsel for the petitioner submits that the right to title is not lost if the purchaser gives the notice to the vendor to cure the defect. In this case, the petitioner had given notice to the respondent to cure the defect. In support of this submission, learned senior counsel placed reliance on the judgment of this Court in the case of R.G. Lakhmidas & Co. vs. Sir Dorab Tata, reported in XXIX Bombay Law Reporter, 1926.
62. Learned senior counsel also placed reliance on the judgment in the case of 91 Manning vs. Turner & Anr., reported in (1957) 1 WLR
91. It is submitted that the right to repudiation, whatever be its true nature, must be exercised, if it is to be exercised at all, as soon as the defect is ascertained. If, after ascertaining the defect, the purchaser still treats the contract as subsisting he does not retain the right to repudiate at any subsequent moment he may choose. He submits that the right to make out a title can be reiterated.
63. It is submitted by learned senior counsel that the arbitral tribunal has not rendered any decision on the title of the respondent however, granted specific performance only because of the conduct of the petitioner. The arbitral tribunal has not gone into the validity of the title of the respondent at all. The only submission of the respondent before the arbitral tribunal was that the agreement with M/s.Accumulate was not enforceable agreement. The arbitral tribunal has not dealt with the submission of the petitioner regarding the defective title of the respondent in respect of the shares sold to the petitioner. The arbitral ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 24 arbp-846.14(j).doc award thus discloses an error of law. Reliance is placed on the judgment of this Court in the case of Krishnaji Gopinath Rele vs. Ramchandra Kashinath Mastakar, reported in AIR 1932, Bombay 51, page 55.
64. Learned senior counsel submits that even according to the respondent, the agreement with M/s.Accumulate was unenforceable.
M/s.Accumulate had threatened the litigation. Though these facts were brought on record by the petitioner, the arbitral tribunal has not dealt with the effect of the correspondence exchanged between the said M/s.Accumulate and the parties in the impugned award at all while considering the relief of specific performance in favour of the respondent.
65. Learned senior counsel submits that since the arbitral tribunal could not have awarded the relief of specific performance in favour of the respondent, the question of awarding any compensation did not arise. He submits that the arbitral tribunal has held that the specific performance could not be granted and still granted the claim for damages contrary to section 21(2) of the Specific Relief Act.
66. Learned senior counsel submits that even if the arbitral tribunal could have allowed the claim for compensation, no interest on damages for a period upto the date of award could have been awarded by the arbitral tribunal. He submits that the claim for damages was crystallized only on the date of award and thus even if the arbitral tribunal would have exercised their right to award interest under section 31(7) of the Arbitration Act, interest could have been awarded on damages only from the date of award till payment.
::: Downloaded on - 25/04/2015 00:00:40 :::ppn 25 arbp-846.14(j).doc
67. Learned senior counsel submits that even though under section 31(7) of the Arbitration Act, it clothes the arbitrator a power of Court however, since the Court could not have granted interest on damages for the past period, the arbitral tribunal certainly cannot grant interest on damages upto the date of award. He submits that the award of interest on damages for the period upto the date of award is illegal and contrary to the provisions of Interest Act, 1978. He submits that the power of awarding interest exercised by the arbitral tribunal under section 31(7) of the Arbitration Act could not have been exercised contrary to the provisions of Interest Act, 1978 and more particularly if the notice under the provisions of Interest Act, 1978 was not issued in this case by the respondent. Learned senior counsel submits that the provisions of Interest Act, 1978 are not given a go-bye or dispensed with while granting powers to the arbitral tribunal under section 31(7) of the Arbitration. In support of the aforesaid submissions, learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Union of India vs. The West Punjab Factories Ltd., reported in AIR 1966 SC 395 and in particular paragraph 16 thereof.
68. Learned senior counsel also placed reliance on the judgment of the Supreme Court in the case of Executive Engineer, Dhenkanal, Minor Irrigation Division, Orissa & Ors. vs. N.C. Budharaj (deceased) by Lrs. & Ors., reported in (2001) 2 SCC 721 and in particular paragraphs 13 and 21 thereof.
69. Learned senior counsel placed reliance on the judgment of ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 26 arbp-846.14(j).doc the Supreme Court in the case of State of Rajasthan & Anr. vs. Ferro Concrete Construction Pvt. Ltd., reported in (2009) 12 SCC 1, and in particular paragraphs 63 to 65 in support of the aforesaid submissions.
70. Mr.Mehta, learned senior counsel for the respondent on the other hand, invited my attention to various letters and correspondence exchanged between the parties, including correspondence with M/s.Accumulate. He submits that the agreement with M/s.Accumulate entered into with the respondent was only for sale of 5% unidentified shares, whereas the respondent had agreed to sell the entire 45% of his shareholding in favour of the respondent. Learned senior counsel placed reliance on paragraph 6 of the written statement filed by the petitioner before the arbitral tribunal and it is stated that it was the case of the petitioner himself that the petitioner had entered into negotiation with D.P. Jain, Director of Golden Angel Hotel & Construction Ltd. for development of the property of the said M/s.Regency Hotels Pvt. Ltd.
The said M/s.Golden Angel Hotel & Construction Ltd. had made it clear that if they were to proceed with the development transaction of the property, it was first necessary for the petitioner to complete the purchase of 45% shareholding of the respondent thereby the petitioner becoming a 90% shareholder.
71. It was the case of the petitioner that the respondent was also present in those meetings and accepted the said position. He submits that based on the said negotiation and agreement between the petitioner and the said M/s.Golden Angel Hotel & Construction Ltd., the petitioner entered into an agreement with the respondent and agreed to purchase ::: Downloaded on - 25/04/2015 00:00:40 ::: ppn 27 arbp-846.14(j).doc 45% of the shareholding of the respondent in the said M/s.Regency Hotels Pvt. Ltd. for a consideration mentioned in the agreement. Learned senior counsel invited my attention to the agreement dated 15 th November, 2000 between the respondent and the said M/s.Accumulate and would submit that even in the said so called agreement for sale of 5% share, admittedly the shares were not identified. Learned senior counsel also invited my attention to the agreement entered into between the parties to the proceedings and the supplemental agreements entered into from time to time.
72. Learned senior counsel invited my attention to the affidavit of evidence filed by the respondent in which the respondent had deposed about the nature of the agreement entered into between the respondent and M/s.Accumulate and also to the effect that the petitioner never bothered about the objection raised by the said M/s.Accumulate. He submits that there was no cross-examination of the said witness on the said deposition by the petitioner. He submits that it is a matter of record that the said M/s.Accumulate had raised an objection and had asked for transfer of 5% shares in their favour only after transfer of the entire 45% shares in favour of the petitioner. Such demand made by the said M/s.Accumulate subsequently was of no significance.
73. Mr.Mehta, also invited my attention to the letter agreements entered into between the parties by which the parties had agreed to the new date of digging. My attention is invited to the subsequent agreement dated 30th November, 2002 by which the respondent agreed to take 8.725% of the gross saleable area of development of M/s.Regency ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 28 arbp-846.14(j).doc Hotels Pvt. Ltd. M/s.Regency Hotels Pvt. Ltd. was a party to the said supplemental agreement. The respondent had made an amendment to the statement of claim for taking steps by the petitioner for transfer of shares.
After 11 months of the receipt of the letter of M/s.Accumulate, the parties had written jointly a letter on 30th November, 2002 to Mr.Haresh Jagtiani, advocate who was an arbitrator. He submits that even on 26 th December, 2003 which was much after the letter of the said M/s.Accumulate, the said M/s.Regency Hotels Pvt. Ltd. had informed the respondent that the premises would be offered to him. Similar correspondence was further exchanged even thereafter between the parties.
74. Learned senior counsel submits that when the petitioner forwarded a copy of the letter dated 27 th July, 2004 which was addressed by M/s.Accumulate to M/s.Regency Hotels Pvt. Ltd., in his covering letter, the petitioner did not call upon the respondent to cure such alleged defect in the title of 5% shares. Insofar as the letter dated 6 th August, 2004, addressed by the respondent to the petitioner is concerned, learned senior counsel submits that in the said letter, the respondent did not agree that the respondent would clear the title in respect of 5% shares. The respondent only conveyed to the petitioner that it was the problem between the respondent and the said M/s.Accumulate and the respondent would solve it. He invited my attention to a letter dated 2 nd September, 2004 addressed by the said M/s.Regency Hotels Pvt. Ltd. which was sent by the petitioner to the said M/s.Accumulate contending that the respondent herein had already transferred his entire shareholding to the petitioner and thus the said M/s.Regency Hotels Pvt. Ltd. was not concerned with any transactions between the respondent and the said ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 29 arbp-846.14(j).doc M/s.Accumulate.
75. Learned senior counsel invited my attention to the subsequent correspondence starting with the letter dated 27th October, 2004 and would submit that the petitioner himself called upon the respondent to pay the stamp duty. The petitioner had entered into further correspondence with the brother and wife of the respondent. The construction of the building was completed in the month of December, 2004. He submits that even in the letter of 14 th February, 2005 addressed by the petitioner to the wife of the respondent, the petitioner did not give any opportunity to the respondent to rectify the alleged defect in title and mischievously proposed to transfer 10% shares back to the respondent. He submits that since the petitioner realized that the respondent was arrested and since the petitioner wanted to back out of his commitment of handing over possession of the immovable property agreed by and between the parties to the respondent, he offered the inspection of the documents to be taken within short span which was an eye wash.
76. Learned senior counsel invited my attention to paragraph 25-A of the statement of claim in which the respondent had specifically pleaded that the petitioner herein had by his conduct waived his right, if any, to avoid and/or terminate the said agreement dated 6 th October, 2001 as modified by the subsequent agreement and opted to keep the said agreements alive. The petitioner had also waived and/or acquiesced in the alleged breaches, if any, of the agreement by the respondent. The respondent had also pleaded that even if the title of the respondent to the shares in question was not cleared, the same could amount only to a breach of warranty and did not furnish the petitioner with any right to ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 30 arbp-846.14(j).doc avoid and/or terminate the said agreement. The respondent had right to sell the said shares which were duly delivered to the petitioner and accepted by him without any demur or protest.
77. Learned senior counsel also invited my attention to section 17 of the Specific Relief Act and would submit that the provisions under section 17(1) of the Specific Relief Act applies to the sale of immovable properties, whereas the Sale of Goods Act applies to the sale of shares.
He submits that section 17(1) applies only before execution of conveyance. Once the conveyance is executed, section 17(1) would ceased to apply. He submits that in this case the entire shareholding of the respondent was already transferred admittedly in favour of the petitioner.
The entire agreement was was thus worked out. Section 17(1) of the Specific Relief Act thus did not apply. He relied upon section 13(1) and 13(2) of the Sale of Goods Act and submits that under those provisions buyer of movable property may waive the condition. The arbitral tribunal has rightly rendered a finding that the petitioner had waived the condition of clear title in this case. Since the petitioner had already transferred all shares, section 13(2) of the Sale of Goods Act would apply.
78. Learned senior counsel also placed reliance on section 14 of the Sale of Goods Act and would submit that it was not the case of the petitioner that his case would fall under section 14. He placed reliance on section 42 of the Sale of Goods Act and would submit that since the petitioner had got the entire shares transferred and accepted those shares as his own shares and had acted upon those shares by taking various steps, there was acceptance of title under section 42 of the Sale of ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 31 arbp-846.14(j).doc Goods Act.
79. Learned senior counsel for the respondent submits that the petitioner had not raised any plea before the learned arbitral tribunal that the case of the petitioner was governed by section 17(1) of the Specific Relief Act. No ground has been raised by the petitioner in the arbitration petition. No arguments on section 17 were raised before the arbitral tribunal and thus rightly not considered by the arbitral tribunal. The petitioner has raised these issues only in the rejoinder in the present proceedings.
80. Learned senior counsel also invited my attention to the findings rendered by the learned arbitral tribunal that the ground for termination of the agreement by the petitioner was not genuine. The petitioner had taken various steps by affirming the agreement regarding the allotment of specific area in the building constructed. He submits that the petitioner did not enter into witness box, whereas the respondent was examined as a witness. The arbitral tribunal has rightly rendered a finding about the changed attitude of the petitioner. He submits that the arbitral tribunal has rendered the findings of fact after considering documentary as well as oral evidence on record and such fundings are not perverse and thus no interference can be warranted under section 34 of the Arbitration & Conciliation Act, 1996.
81. Learned senior counsel submits that since M/s.Regency Hotels Pvt. Ltd. was not a party to the arbitration proceedings, the arbitral tribunal rightly held that specific performance ought not to have been granted. He invited my attention to the findings rendered by the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 32 arbp-846.14(j).doc arbitral tribunal in this regard and would submit that the arbitral tribunal has not held that the specific relief cannot be granted in favour of the respondent at all. After holding that in the facts of this case the respondent ought not to have granted the relief of specific performance, the arbitral tribunal rightly allowed the claim for compensation by exercising discretion under section 21(2) of the Specific Relief Act. The respondent had claimed damages in addition to the claim for specific performance. The arbitral tribunal has not awarded both reliefs but has only allowed the claim for compensation.
82. Learned senior counsel invited my attention to the minority award rendered by one of the learned arbitrator and would submit that even according the said minority award, the respondent herein had made out a case for reliefs under prayers (ba), (a) to (j). In the said minority award, the learned arbitrator has interpreted the award rendered by the majority of the arbitrators and has held that the respondent had made out the case for the entire relief under prayers (ba), (a) to (j).
83. Mr.Mehta distinguished the judgment of this case in the case of Bai Dosibai (supra) on the ground that in the said matter, the Court was dealing with the transfer of immovable property. The case was at the stage of investigation of title. In this case, the title has already been passed in favour of the petitioner. The shares are already transferred in favour of the petitioner.
84. Mr.Mehta also distinguished the other judgments relied upon by learned senior counsel for the petitioner on various grounds. In so far as the statement of the petitioner regarding interest on damages is ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 33 arbp-846.14(j).doc concerned, learned senior counsel for the respondent submits that the arbitral tribunal has rightly awarded interest on damages from the date of breach till payment by exercising powers under section 31(7) of the Arbitration & Conciliation Act, 1996. He distinguished the judgment of the Supreme Court in the case of State of Rajasthan & Anr. vs. Ferro Concrete Construction Pvt. Ltd., reported in (2009) 12 SCC 1, on the ground that the said judgment was dealing with the arbitration under the Arbitration Act, 1940. The powers of the arbitrator under section 31(7) were different than with the powers of the arbitrator under the Arbitration Act, 1940.
85. Mr.Mehta placed reliance on the judgment of the Supreme Court in the case of McDermott International INC vs. Burn Standard Co. Ltd. & Ors., reported in (2006) 11 SCC 181 and in particular paragraph 154. Reliance is also placed on the judgment of the Supreme Court in the case of Sayeed Ahmed & Co. vs. State of Uttar Pradesh & Ors. reported in (2009) 12 SCC 26 and in particular paragraphs 12, 13, 14 & 16. Mr.Mehta placed reliance on the judgment of the Supreme Court in the case of State of Haryana & Ors. vs. S.L. Arora & Co., reported in (2010) 3 SCC 690, and in particular paragraphs 16, 17, 23 and
24. Learned senior counsel also placed reliance on the judgment of the this Court in the case of Angel Infin Pvt. Ltd. vs. Enchjay Industries Ltd., reported in 2007 (3), Bom.C.R. 997 and in particular paragraphs 21 to 23. Mr.Mehta placed reliance on the judgment of the this Court in the case of M/s.Susaka Pvt. Ltd. vs. Union of India, reported in 2005 Vol.107 (2) Bom.L.R. 751 and in particular paragraphs 4 to 6 thereof.
86. Mr.Mehta placed reliance on the judgment of the Supreme ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 34 arbp-846.14(j).doc Court in the case of Rajasthan State Industrial Corporation Ltd. & Anr.
vs. Diamond & Gem Development Corporation Ltd. & Anr., reported in (2013) 5 SCC 470 and in particular paragraphs 15 and 16 and would submit that the party cannot be permitted to blow hot and cold and approbate and reprobate.
87. Learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Ganga Retreat & Towers Ltd. & Anr.
vs. State of Rajasthan & Ors., reported in (2003) 12 SCC 91 and in particular paragraphs 28 to 30 and would submit that even if the consent agreement is caused by misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. It is submitted that such party has to exercise its option promptly and communicate the same to the opposite party. Until the right of avoidance is exercised, the contract is valid, and things done thereunder may not thereafter be undone.
88. In the rejoinder, Mr. Chinoy, learned senior counsel for the petitioner tendered a copy of the written argument, which according to the respondent, was filed before the arbitral tribunal. He submits that the respondent had made submissions on the applicability of Section 17(1) of the Specific Relief Act, 1963 before the arbitral tribunal. He invited my attention to grounds (tt), (E) (F), (J), (K), (N) and (T) of the petition and would submit that even in the petition, the petitioner has raised such grounds.
89. It is submitted that the respondent had sold the shares to the petitioner with warranty of title. The respondent was fully aware of ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 35 arbp-846.14(j).doc the transaction with the third party in respect of sale of 5% shares which were part of the shares agreed to be sold to the petitioner. The respondent had thus committed a fraud upon the petitioner. He submits that in view of the fraud committed by the respondent, though the entire 45% shares were transferred by the petitioner in his favour it would make no difference. In support of this submission, learned counsel placed reliance on the judgment of the King's Bench Division in the case of Armstrong Vs. Jackson, reported in 1917 King's Bench Division 822 and reliance is placed on the relevant paragraphs at pages 825, 826 and 830. He submits that merely because the shares were transferred in favour of the petitioner is of no consequence since the fraud vitiates the contract. In support of this submission, learned senior counsel placed reliance on the judgment of the Privy Council in the case of Jean Maokenzie Vs. Royal Bank of Canada, reported in The Law Weekly, 1934, Vol.XL, 400. Reliance is placed on the relevant paragraphs at pages 401, 404 and 405. Reliance is also placed on paragraphs at pages 722 to 729 of the judgment of the Privy Council in the case of Atureliya Walendagodage Henry Senanayake Vs.Annie Yeo Siew Cheng, reported in 1965 (3) W.L.R. 715.
90. Learned senior counsel submits that even in the case of Atureliya Walendagodage Henry Senanayake (supra), it is held that in case of misrepresentation, repudiation of contract is permissible. Non disclosure of the transaction with M/s.Accumulate amounted to a fraud of the respondent. The respondent had assured the petitioner that the respondent would resolve the matter with the said M/s. Accumulate. The respondent had not pleaded the waiver of the petitioner to repudiate the title.
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 36 arbp-846.14(j).doc
91. Learned senior counsel for the petitioner submits that Section 17(1) of the Specific Relief Act would apply to the facts of this case. The petitioner had raised such plea also in the written statement and in particular paragraphs 56, 57 and 60. He submits that in this case, the shares were available with the petitioner and the petitioner had accordingly offered a part of the said shares to the respondent. He submits that principles laid down by this Court in the case of Bai Dosibai Vs. Bai Dhanbai (supra) would apply to the present case though the said case was dealing with the immovable property. He submits that the arbitral tribunal did not consider these issues at all. He submits that the respondent did not prove that the petitioner had waived his right to title. No finding has been rendered by the arbitral tribunal that the petitioner had waived his right to title. The arbitral tribunal has not dealt with the plea of Section 17 (1) of the Specific Relief Act, 1963 in the impugned award. He submits that since the respondent could not get the specific performance or price of share, the respondent also could not get the specific performance of the share in the property. He submits that Section 17(1) of the Specific Relief Act would apply to the movable properties also as far as possible.
92. Learned senior counsel submits that in the majority award, the two arbitrators held that the specific performance in terms of prayer clause (ba) of the statement of claim could not be granted and thus Section 21(2) did not come into operation. The third arbitrator, however, held that the specific performance could be granted. Learned senior counsel submits that since the respondent was unable to give clear title in respect of the shares, he could not get any property. He submits that ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 37 arbp-846.14(j).doc unless the title to the shares of the respondent was clear, the respondent could not make any claim to the property. It is submitted that right of the respondent in the property was dependent upon the transfer of shares with clear title therein in favour of the petitioner. The fundamental transaction was the transfer of shares. If that contract would have been enforceable, the respondent would have right to get consideration or in lieu thereof the property. The right to get consideration of property flows from the transfer of the shares with title which the respondent failed to clear.
93. Mr.Mehta, learned senior counsel submits that the petitioner had not raised any plea before the arbitral tribunal of applicability of Section 17(1) of the Specific Relief Act nor such argument could be raised by the petitioner. No such ground is raised in the arbitration petition that though such plea was alleged to have been raised by the petitioner, the same has not been considered by the arbitral tribunal.
94. Learned senior counsel strongly denied the contention of Mr. Chinoy, learned senior counsel for the petitioner that the petitioner had tendered a copy of the written arguments before the arbitral tribunal which was tendered across the bar in these proceedings. He submits that the written arguments tendered across the bar by the learned senior counsel for the petitioner had never been served upon the respondent before the arbitral tribunal. He placed reliance on the a letter dated 24 th February 2014 addressed by the advocate for the respondent to the advocate for the petitioner placing on record as to what documents were tendered before the arbitral tribunal by the petitioner. He submits that there was no response to the said letter addressed by the advocate for ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 38 arbp-846.14(j).doc the respondent. Thus, the petitioner did not tender any written arguments before the arbitral tribunal nor had furnished a copy thereof to the respondent. No reliance thus on such alleged written arguments can be placed in these proceedings for the first time. No reliance is placed on such written arguments also in the arbitration petition or in the rejoinder filed by the petitioner.
95. Learned senior counsel for the respondent disputed the submission of the learned senior counsel for the petitioner that any such grounds of applicability of Section 17(1) of the Specific Relief Act has been raised by the petitioner in the petition.
96. Mr.Mehta, learned senior counsel distinguished the additional judgments relied upon by the petitioner at the stage of rejoinder on the ground that the transfer of shares in this case had already been taken place. In the judgment of the King's Bench Division in the case of Armstrong Vs. Jackson (supra), the Court had considered the power of the Court to rescind the agreement and not the power of the parties to the contract.
97. Mr. Mehta, learned senior counsel submits that the petitioner did not apply for rescission of the agreement and did not enter into the witness box to prove the alleged fraud committed by the respondent. He distinguished the judgment of the Privy Council in the case of Jean Maokenzie Vs. Royal Bank of Canada (supra). He submits that in this case there is no plea of misrepresentation raised by the petitioner against the respondent. He also distinguished the judgment of Privy Council in ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 39 arbp-846.14(j).doc the case of Atureliya Walendagodage Henry Senanayake Vs.Annie Yeo Siew Cheng (supra). He submits that the facts of the said matter are totally different. In this case, there is no plea of misrepresentation raised by the petitioner against the respondent.
98. Learned senior counsel placed reliance on Section 27 of the Specific Relief Act, 1963 and submits that the said provision provides as to when the Court can refuse relief for rescission of the contract. The parties in this case had ratified the contract. Reliance is placed by the learned senior counsel on the judgment of the Supreme Court in the case of Ganga Retreat & Towers Limited and Anr. Vs. State of Rajasthan and Ors., reported in (2003) 12 SCC 91 and in particular paragraphs 20 and 28 to 30 and it is submitted that Section 19 of the Contract Act is not applicable to the concluded contract where the parties are challenging the agreement as they had voluntarily chosen to raise the said plea in spite of being aware of all the relevant facts and circumstances.
99. Learned senior counsel submits that the respondent had agreed to sell 45% shares held by the respondent in the said M/s.Regency Hotels Pvt. Ltd. whereas the petitioner offered only 10% of the shares. The petitioner cannot be allowed to approbate and reprobate at the same time. He submits that since the petitioner knowingly accepted the benefits of a contract or conveyance, he is estopped from denying the validity of, or the binding effect of such contract.
REASONS AND CONCLUSIONS :-
100. A perusal of the record indicates that the petitioner was already holding 45% shareholding of the said M/s.Regency Hotels Pvt.
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 40 arbp-846.14(j).doc Ltd. The petitioner had entered into an agreement with M/s.Golden Angel Hotel and Construction Limited for development of the property of the said M/s.Regency Hotels Pvt. Ltd. The said M/s.Golden Angel Hotel and Construction Limited had made it clear that if they were to proceed with the development transaction of the said property, the petitioner was required to complete the purchase of 45% shareholding of the respondent and to become 90% shareholder in the said M/s.Regency Hotels Pvt. Ltd.
101. It is not in dispute that pursuant to the first agreement entered into between the petitioner and the respondent on 6 th July, 1998 for sale of 45% shareholding of the respondent in the said company to the petitioner, the petitioner could not pay the entire consideration to the respondent within the stipulated period but could pay to the respondent only first two installments under the said Share Sale Agreement (SSA) during the period between 6th July, 1998 and 12th January, 1999 alongwith interest. In view of such default on the part of the petitioner, the parties entered into a supplemental agreement on 12th January, 1999 inter alia rescheduling outstanding payment to be made by the petitioner to the respondent under the said agreement. The petitioner agreed that the balance share consideration including interest amount of Rs.2,71,90,000/- would be paid by the petitioner to the respondent in the manner stipulated in the supplemental agreement dated 12th January, 1999. The respondent terminated the said agreement on 15th September, 1999.
102. A perusal of the agreement so called entered into between the respondent on 15th November 2000 with M/s.Accumulate Investments Pvt. Ltd. indicates that the said writing was in respect of 5% unidentified ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 41 arbp-846.14(j).doc shares of the respondent in the said M/s.Regency Hotels Pvt. Ltd. on the terms and conditions recorded in the said writing dated 15 th November, 2014. A perusal of the record indicates that during the period between 12th January, 2001 and 5th October, 2001, the petitioner paid further sum aggregating to Rs.79,27,250/- to the respondent under the said supplemental agreement thereby paid total sum of Rs.2,87,27,250/- to the respondent inclusive of interest on delayed payments.
103. The petitioner was still to pay an amount of Rs.3,07,90,250/- to the respondent under the said agreement inclusive of interest. The parties accordingly entered into an agreement on 5th October, 2001 whereby the respondent agreed to treat the said amount of Rs.2,87,27,250/- paid by the petitioner to the respondent under the said agreement as the sale consideration towards the purchase of 8563 shares constituting approximately 35% of the paid up share capital of the said company and to transfer the said shares to the petitioner. Accordingly the parties issued instructions to the escrow holder to handover 8563 shares of the respondent in the said company to the new escrow holder M/s.Crawford Bayley & Co. with instruction to hold the same in escrow.
104. It is not in dispute that on 6th October, 2001, the parties entered into another agreement whereby the respondent agreed to sell to the petitioner his remaining 2462 shares of the said company at the rate of Rs.12,506/- per share aggregating to Rs.3,07,90,250/- on the terms and conditions set out therein. It is not in dispute that under the said agreement, the petitioner gave an option to the respondent to acquire the shares of the said company or the gross saleable areas i.e. approximately ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 42 arbp-846.14(j).doc 8.725% of gross saleable area of the said land or constituting 8.725% of gross saleable without payment of development charges and net of all expenses or approximately 17,450 sq.ft. of gross saleable area of land or constituting 17.45% of gross saleable area of the with payment of Rs.2,500/- sq.ft. towards development charges which was to be paid within 30 days of exercising of such option. The parties agreed that the said 2462 shares alongwith transfer form in respect thereof shall be kept deposited with the new escrow holder M/s.Crawford Bayley & Co. and shall be handed over to the petitioner after execution of the agreement if so required by the petitioner in writing.
105. It is not in dispute that in the month of October, 2001 the said M/s.Regency Hotels Pvt. Ltd. through the petitioner and M/s.Golden Angel Hotel and Construction Limited entered into an agreement to develop the said property of the said company M/s.Regency Hotels Pvt.
Ltd. It is not in dispute that during the period between 6 th October, 2001 and 7th November, 2001 the petitioner secured the possession of the entire 11025 shares of the respondent in the said M/s.Regency Hotels Pvt. Ltd.
from the new escrow holder. It is also not in dispute that on 7 th November 2001, the said 11025 shares of the respondent in the said company were transferred in the name of the petitioner. The petitioner acted upon the entire shareholdings of the respondent transferred in his favour.
106. A perusal of the record indicates that when the said M/s.Accumulate Investments Pvt. Ltd. addressed a letter on 12th January, 2002 to the respondent regarding repayment of loan of Rs.25 lacs alleged to have been taken by the respondent from the said M/s.Accumulate ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 43 arbp-846.14(j).doc Investments Pvt. Ltd., the entire shareholding of the respondent in the said company which was agreed to be sold to the petitioner was already transferred in the name of the petitioner.
107. A perusal of the subsequent transaction after letter of 12 th January, 2002 from the said M/s.Accumulate Investments Pvt. Ltd.
demanding repayment of loan of Rs.25 lacs and more particularly the subsequent agreement entered into between the parties rescheduling the date of digging and entering into supplemental agreement thereby giving various options to the respondent by the petitioner to opt for 8.725% of the gross saleable area of the development etc. clearly indicates that the petitioner had accepted the title of the respondent in the said 45% shareholding in the said company which were already transferred in the name of the petitioner. In my view the question of the respondent thereafter clearing any title of those shares did not arise.
108. A perusal of the letter from the said M/s.Regency Hotels Pvt. Ltd. through their advocate dated 2nd September, 2004 to the said M/s.Accumulate Investments Pvt. Ltd. which letter was signed by the petitioner himself clearly indicates the stand of the petitioner that the respondent was no longer the shareholder of the said M/s.Regency Hotels Pvt.Ltd. and had already disposed of his shareholding in October 2001.
By the said letter, the petitioner also made his stand clear that the said M/s.Regency Hotels Pvt.Ltd. was not concerned with any transaction made by the respondent herein with the said M/s.Accumulate Investments Pvt.Ltd. and therefore could not adhere to the request for transfer of shares made by the said M/s.Accumulate Investments Pvt.Ltd. in the said ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 44 arbp-846.14(j).doc company. By the said letter the petitioner advised the said M/s.Accumulate Investments Pvt. Ltd. to seek redressal from the respondent in any manner that the said M/s.Accumulate Investments Pvt.
Ltd. would choose.
109. A perusal of the letter further indicates that even after addressing the said letter from the M/s.Accumulate Investments Pvt.Ltd. to the petitioner on behalf of M/s.Regency Hotels Pvt. Ltd., on 27 th October, 2004 the petitioner addressed a letter by e-mail calling upon the respondent herein to arrange to send Rs.1,50,000/- towards the stamp duty. It is thus clear that the petitioner had rejected the claim of the said M/s.Accumulate Investments Pvt.Ltd. and had taken further steps to affirm and act upon the agreement entered into between the parties and the respondent. It is thus clear that the petitioner had accepted the title of the respondent in the entire 45% shareholding in the said M/s.Regency Hotels Pvt.Ltd. The plea raised by the petitioner disputing the title of the respondent is totally frivolous and untenable.
110. A perusal of the record further indicates that after taking several steps including transfer of the entire shareholding in his favour and rejecting the claim of the M/s.Accumulate Investments Pvt.Ltd.and calling upon the respondent to pay the differential amount of stamp duty, when the respondent was detained in Shanghai, China in the month of November 2004, the petitioner changed his attitude and rendered the issue of title again and purported to retain only 10% shares to the respondent because of the claim put forward by the said M/s.Accumulate Investments Pvt.Ltd. The petitioner thereafter terminated the said two ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 45 arbp-846.14(j).doc agreements dated 5th October, 2001 and 30th November, 2002 raising a false plea of the respondent not allegedly proving his title in respect of those shares. It is not in dispute that the petitioner did not offer to return entire 45% shares to the respondent but only purported to return 10% shares. The petitioner was fully aware that when the petitioner offered 10% shares to the respondent, the development of the property under the agreement entered into between the said M/s.Regency Hotels Pvt. Ltd. and the said M/s.Golden Angel Hotel and Construction Limited was completed.
111. A perusal of the award on the issue as to whether the notice of termination dated 5th July, 2005 issued, by the petitioner to the respondent was valid, effective and contractually tenable indicates that the arbitral tribunal has held that the main and perhaps the only reason for termination mentioned in the said notice was that the respondent had not cleared or removed the claims of M/s.Accumulate Investments Pvt.Ltd.
to transfer 1225 shares in the said company M/s.Regency Hotels Pvt. Ltd. to the said M/s.Accumulate Investments Pvt.Ltd. The arbitral tribunal held that the ground for termination was not genuine and was not available to the petitioner because of his conduct subsequent to coming to know of the said M/s.Accumulate Investments Pvt.Ltd. agreement which clearly proved that notwithstanding the knowledge of M/s.Accumulate Investments Pvt. Ltd. agreement and its contents, the petitioner took several steps affirming the said agreements dated 6 th October, 2001 and 30th November, 2002.
112. The arbitral tribunal in the said impugned award considered ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 46 arbp-846.14(j).doc several such subsequent steps taken by the petitioner after knowledge of the claims put up by the said M/s.Accumulate Investments Pvt.Ltd. including the execution of supplemental agreement, letter agreement in favour of the petitioner etc. The arbitral tribunal also noticed that the petitioner herein had called upon the respondent to pay in the month of April 2003 a sum of Rs.30 lacs towards his proportionate share of the cost of TDR instead of his share in the property. In response to the said letter of the petitioner, the respondent had agreed to relinquish part of the area/place to be allotted to him under the supplemental agreement entered into between the parties. The arbitral tribunal also noticed that even in the supplemental agreement entered into by the parties on 30 th November 2002, there was no reference to any agreement between the respondent and the said M/s.Accumulate Investments Pvt.Ltd. or any condition imposed by the petitioner upon the respondent to clear the title of the respondent or to satisfy the claim of the said M/s.Accumulate Investments Pvt.Ltd. The arbitral tribunal also considered the letter addressed by both the parties in the month of December 2002 to the new escrow holder requesting it to return escrow shares lying with it and to release the same in favour of the petitioner. Those shares were given by way of security by the petitioner for performing his obligation under the said agreement dated 6th October, 2001.
113. A perusal of the award also indicates that the arbitral tribunal also considered a letter dated 7th May, 2003 by which the petitioner had confirmed to the respondent, the arrangement arrived at between the parties whereunder an area of 1500 sq.ft. would be reduced from the shares of the respondent in the said property in lieu of the said sum of ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 47 arbp-846.14(j).doc Rs.30 lacs. The said M/s.Regency Hotels Pvt. Ltd. also had sent a letter on 27th October, 2004 which was signed by the petitioner as the director of the said M/s.Regency Hotels Pvt. Ltd. confirming the said arrangement and further stating that the remaining area of 2250 sq.ft. would be given to the respondent herein. It was further agreed that in case the total area of construction was more than 1,00,000 sq.ft. the respondent herein would be entitled to proportionate extra space.
114. The arbitral tribunal noticed that the said M/s.Regency Hotels Pvt.Ltd. had addressed a letter of 2 nd January, 2004 which was also signed by the petitioner as the director of the said company correcting the numbers of the offices/designate places mentioned in the earlier letter dated 26th December, 2003. The petitioner addressed another letter on 16th January, 2004 to the respondent stating that in lieu of the tax liability payable by the respondent and which he may be unable to pay, the area in the constructed building to be allotted to the respondent would be reduced by 2000 sq.ft.
115. The arbitral tribunal took further correspondence entered into between the petitioner and the respondent into consideration whereby the petitioner had called upon the respondent to pay Rs.1.5 lacs towards stamp duty into consideration and after considering all these documents and showing subsequent events after receipt of the claims made by the said M/s.Accumulate Investments Pvt.Ltd., and observed that the change in attitude of the claimant was evident from the fact that he had addressed a letter on 14th February, 2005 to the wife of the respondent purporting to return 10% shares for the first time claim put forward by the said M/s.Accumulate Investments Pvt.Ltd.
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 48 arbp-846.14(j).doc
116. The arbitral tribunal accordingly held that this change of attitude of the petitioner was evident only after the respondent was detained in China. From the conduct of the petitioner it was abundantly clear that the petitioner had waived the objections if any, if could have because of the claims made by the said M/s.Accumulate Investments Pvt. Ltd. and could not make that a ground for termination after all the events mentioned in the award had taken place. The arbitral tribunal had accordingly rendered a finding of fact that letter of termination dated 5 th July, 2005 was ineffective, invalid and unsustainable in the facts and circumstances of the case and could in no manner affect the rights of the respondent under the said two agreements dated 6th October, 2001 and 30th November, 2002 and accordingly the respondent was entitled to specific performance of those agreements as prayed. In view of the facts summarised aforesaid which were considered by the arbitral tribunal while rendering the finding of fact which in my view which are not perverse and thus no interference with such finding of fact is permissible.
117. A perusal of the correspondence entered into between the parties further indicates that the petitioner had addressed a letter to Mr.Haresh Jagtiani, advocate which letter was counter signed by the respondent on 30th November, 2002. In the said letter, the petitioner had informed Mr.Haresh Jagtiani who was acting as an arbitrator that the petitioner had entered into an agreement with the respondent in October 2001, wherein the respondent was given an option to opt for space in the development of the property owned by M/s.Regency Hotels Pvt. Ltd. which was subject matter of the arbitrator before the learned arbitrator Mr.Haresh Jagtiani. It was mentioned in the said letter that the respondent had opted for space as per the agreement entered into between ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 49 arbp-846.14(j).doc the parties and that the amount of space would be given by M/s.Regency Hotels Pvt. Ltd. to the respondent or his nominee. The method/ modalities of such allotment of space would be worked out in due course between the parties concerned.
118. By a separate letter dated 26th December, 2003 the said M/s.Regency Hotels Pvt. Ltd. which letter was signed by the petitioner as a director of the said company addressed to the respondent confirmed to the respondent that the balance 7,250 sq.ft. would be given to him by the said company from any of the offices bearing nos. 102, 201, 501, 502, 602 and 202. The respondent was informed that if the total sale of area of construction was more than 1,00,000 sq.ft. then the respondent would be entitled to the incremental percentage as per the existing agreements and the respondent will have to pay all applicable taxes for transfer of the area by the company in the name of the respondent or his nominee.
119. By another e-mail dated 16th January, 2004 the petitioner informed the respondent that the petitioner had concluded that he could at best take 25% of the market value and deem it as his cost. The respondent was informed that on the 75% the respondent will have to pay approximately 38% towards tax, which would mean that either 25% of the total area would be reduced which would be approximately 2000 sq.ft. or in the alternative Rs.80 lacs would have to be given to the company for the allotment of the entire space.
120. On 2nd September, 2004, the said M/s.Regency Hotels Pvt. Ltd. addressed a letter which was signed by the petitioner to Mr.Ravi Khubchandani, Director of M/s.Accumulate Investments Pvt. Ltd. in ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 50 arbp-846.14(j).doc reply to the said letter dated 27th July, 2004 informing that the respondent was no longer a shareholder of M/s.Regency Hotels Pvt. Ltd. and had disposed off his shareholding in October 2001. He was further informed that the said M/s.Regency Hotels Pvt. Ltd. was not concerned with any transaction made by the respondent and therefore the said conduct could not adhere to the request for transfer of shares. The petitioner directed the said Mr.Ravi Khubchandani of M/s.Accumulate Investments Pvt. Ltd. to seek redressal from the respondent in any manner that he would choose.
121. A perusal of the letter dated 14th February, 2005 which was written much after the letter dated 2nd September, 2004 addressed to M/s.Accumulate Investments Pvt. Ltd., the petitioner addressed to the wife of the respondent clearly indicates that the petitioner was fully aware of the so called claim made by the said M/s.Accumulate Investments Pvt. Ltd. and had not only denied the said claim and refused to transfer the shares in favour of M/s.Accumulate Investments Pvt. Ltd. but affirmed and ratified the agreement entered into between the petitioner and the respondent. The petitioner also made his position clear that the respondent had already sold his shares to the petitioner in October 2001 and was no longer of shareholder of M/s.Regency Hotels Pvt. Ltd. In my view there is thus no substance in the submission of the learned senior counsel for the petitioner that the petitioner had not waived his right to the title or that the arbitral tribunal had mixed up the issue of waiver of right to terminate with the waiver of right to title. The petitioner had proceeded on the premise that the said shares were already transferred in favour of the petitioner and the respondent thus had no right, title or interest whatsoever in those shares. It was also the case of the petitioner ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 51 arbp-846.14(j).doc that in respect of the said 10% shares for which the petitioner had to pay the consideration to the respondent, the respondent had exercised option to take share in the space in the building constructed by the said M/s.Regency Hotels Pvt. Ltd. There was thus no dispute whatsoever in respect of the title of the said shares.
122. In my view once the respondent had exercised an option to buy the space in the commercial premises in the building constructed by the said M/s.Regency Hotels Pvt. Ltd., the issue of title belatedly raised by the petitioner after getting 100% shareholding transferred in his favour became academic. The petitioner had acted upon and had taken several steps in furtherance of the option exercised by the respondent for space in the immovable property given to the respondent in lieu of the said 10% shares. Thus the insistence of the petitioner at the belated stage for clearing the title in respect of those 10% shares was nothing but a frivolous attempt on the part of the petitioner not to comply with his part of the obligation to hand over the possession of the space agreed to be allotted to the respondent. The arbitral tribunal had considered the entire correspondence, pleadings, evidence, documents and the provisions of law and has rightly rendered a findings about the changed attitude of the petitioner in view of the construction of the building having been completed and the respondent was in custody at the relevant time. In my view the finding of fact rendered by the arbitral tribunal thus are not perverse and cannot be interfered with under section 34 of the Arbitration and Conciliation Act.
123. Insofar as judgment of this court in case of Bai Dosibai vs. Bai Dhanbai (supra) relied upon by the learned senior counsel for the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 52 arbp-846.14(j).doc petitioner is concerned, it is held by this court that even if the purchaser had a right of repudiation on discovering the true facts, the purchaser was bound to exercise that right promptly, and that also by treating the contract as subsisting. After the discovery of the defect, the purchaser was precluded from exercising the right of repudiation at a subsequent time without first giving the vendors a reasonable time to cure the defect. A perusal of the said judgment indicates that the transaction in that matter was at the investigation stage whereas in this case admittedly entire 45% shareholding of the respondent was transferred in favour of the petitioner much before any claim was put up by the said M/s.Accumulate Investments Pvt. Ltd. In this case the petitioner has not only rejected the said claim put up by the said M/s.Accumulate Investments Pvt.Ltd. but has ratified and affirmed the title of the respondent in the entire shareholding. In my view the said judgment in case of Bai Dosibai vs. Bai Dhanbai (supra) thus does not assist the petitioner.
124. Insofar as judgment of this court in case of R.G.Lakhmidas & Co.(supra) relied upon by the learned senior counsel for the petitioner is concerned, a perusal of the said judgment indicates that the trust had agreed to sell the property to the purchaser without there being a proper resolution passed by the trust. This court held that it was the duty of the plaintiff as vendors to make out their title and it was not for the defendant-purchasers to do so. In that case the vendors had repeatedly declined to make out a marketable title though was called out by the defendant to do so. In this case the petitioner had not only transferred the entire shareholding of the respondent but had acted upon the said transaction and affirmed the right, title and interest of the respondent in ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 53 arbp-846.14(j).doc those share. The said judgment of this court in case of R.G.Lakhmidas & Co.(supra) thus does not assist the petitioner.
125. Insofar as judgment of court of Chancery of the Country Palatine of Lancaster in case of 91 Manning vs.Turner and another (supra) relied upon by the learned senior counsel for the petitioner is concerned, it is held that the purchaser who wished to do away with contract on the ground that there was some defect in the title, must do so as soon as he discovers the defect and secondly that if he enters into a further negotiation with regard to the removal or curing the defect, he must allow the vendor a reasonable time to do so. In this case the petitioner has not repudiated the contract when petitioner came to know the claims of M/s. Accumulate Investments Pvt.Ltd. but had affirmed the said contract by rejecting the claim of the said M/s.Accumulate Investments Pvt. Ltd. and had acted upon the said contract between the petitioner and the respondent. In any event, since the respondent had already exercised option to buy space in the immoveable property in lieu of 10% shareholding, issue of title raised by the petitioner at the belated stage after transferring the entire 45% of the shareholding was totally frivolous and contrary to the terms of the contract. The said judgment of court of Chancery of the Country Palatine of Lancaster in case of 91 Manning vs. Turner and another (supra) thus does not assist the petitioner.
126. Insofar as judgment of this court in case of Krishna Gopinath Rele (supra) relied upon by the learned senior counsel for the petitioner is concerned, since the shares were already transferred in ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 54 arbp-846.14(j).doc favour of the petitioner, the judgment of this court in case of Krishna Gopinath Rele (supra) does not assist the petitioner. Even in that case the transaction was not concluded and was at investigation stage.
127. Insofar as judgment of King's Bench division in case of Armstrong vs. Jackson (1917) relied upon by the learned senior counsel for the petitioner is concerned, a perusal of the said judgment makes it clear that in the said matter the plaintiff had applied for setting aside the whole transaction and had not affirmed part of the shares whereas in this case though M/s.Accumulate Investments Pvt.Ltd. had made claim in respect of 5% unidentified shares in the said M/s.Regency Hotels Pvt. Ltd., the petitioner though transferred the entire 45% shareholding, however offered to return only 10% shares thereby accepting the title atleast in respect of 35% shareholding. The said judgment of King's Bench Division in case of Armstrong(supra) thus does not assist the petitioner.
128. Insofar as judgment of Privy Council in case of Mrs.Jean Machenzie vs. Royal Bank of Canada (supra) relied upon by the learned senior counsel for the petitioner is concerned, it is held that the mere fact that the party making the representation had treated the contract as binding and had acted on it, does not preclude relief. In my view the said judgment does not assist the petitioner. In this case there was no case of alleged misrepresentation by the respondent to the petitioner.
129. Insofar as judgment of Privy Council in case of Atureliya Walendagodage Henry Senanayake (supra) relied upon by the learned ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 55 arbp-846.14(j).doc senior counsel for the petitioner is concerned, the facts of that case are totally different and are clearly distinguishable with the facts of this case. Privy Council had come to the conclusion that it was not possible to say that the plaintiff had affirmed the contract or that she in any way had precluded herself from taking the course that she had adopted. In this case it is clear that the petitioner had rejected the claim made by the said M/s.Accumulate Investments Pvt.Ltd. and affirmed and verified the title of the respondent in those shares. The said judgment of Privy Council in case of Atureliya Walendagodage Henry Senanayake (supra) thus does not assist the petitioner.
130. Supreme Court in case of Rajasthan State Industrial Development and Investment Corporation and another vs. Diamond & Gem Development Corporation Limited and another (2013) 5 SCC 470 has held that the parties cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". It is held that where the party knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. It is held that the said rule was applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what was right and of good conscience. It is held that doctrine of the election was based on the rule of estoppel the principle that one cannot approbate and reprobate was inherent in it. In this case the petitioner in my view has blown hot-blow cold at the same time and has approbated and reprobated by on one hand affirming the title of the respondent in the shares and rejecting the claim of M/s.Accumulate Investments Pvt. Ltd. and has got ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 56 arbp-846.14(j).doc the entire shareholding of the respondent transferred in favour of the petitioner and on the other hand is now alleging the defect in the title of the respondent in those shares. I am respectfully bound by the judgment of Supreme Court in case of Rajasthan State Industrial Development and Investment Corporation and another (supra) Paragraphs 15 and 16 of the said judgment read thus :-
"15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao2, CIT v. V. MR. P. Firm Muar 3, Ramesh Chandra Sankla v. Vikram Cement4, Pradeep Oil Corpn. v. MCD5, Cauvery Coffee Traders v. Hornor Resources (Interna- tional) Co. Ltd.6 and V. Chandrasekaran v. Administrative Of-
ficer7.]
16. Thus, it is evident that the doctrine of election is based on the rule of estoppel--the principle that one cannot appro- bate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
131. Supreme Court in case of Ganga Retreat and Towers Ltd. and another (supra) has held that under section 19 of the Contract Act when consent to an agreement was caused by misrepresentation, the agreement was a contract voidable at the option of the party whose consent was so caused. It is held that however, his election to stand by ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 57 arbp-846.14(j).doc the contract once exercised would have the effect of ratification of the contract with the knowledge of misrepresentation on the part of the other party and that would extinguish its power of avoidance. It is held that in the very nature of the right conferred on the party affected, the law expects it to exercise its option promptly and communicate the same to the opposite party. It is held that delay in election may make it unjust that the right to elect should continue. It is held that the right to rescission for misrepresentation in general must be promptly exercised.
132. In this case the petitioner has not only ratified the contract but has rejected the claim of the said M/s.Accumulate Investments Pvt.Ltd. on the ground that the respondent was no more shareholder of the said M/s.Regency Hotels Pvt.Ltd. and the same had been transferred in favour of the petitioner. The petitioner has repeatedly confirmed that the respondent was entitled to share in the space in the immoveable property in lieu of 10% shares. So called offer to return the 10% shares by the petitioner was only at the stage when the entire building was completely ready and when the respondent was in police custody. The petitioner thus did not exercise his alleged so called right of recession of the contract on the basis of alleged fraud and/or misrepresentation by the respondent upon the petitioner. Both the parties had already acted upon on the agreement. The entire shareholding of the respondent was already transferred in favour of the petitioner much before any claim to be put up by the said M/s.Accumulate Investments Pvt.Ltd. Paragraphs 28 and 29 of the said judgment of Supreme Court in case of Ganga Retreat and Towers Ltd. and another (supra) which are relevant and applies to the facts of this case read thus :-
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 58 arbp-846.14(j).doc "28. According to Section 19 of the Contract Act when con- sent to an agreement is caused by misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. The latter may, if he thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if the repre- sentations made had been true. According to Section 2 clause
(i), an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract. It is not necessary for us to record a clear finding whether there was a misrepresen- tation on the part of the respondents or not. Suffice it to ob-
serve that a voidable contract confers the right of election on the party affected to exercise its option to avoid the legal rela-
tions created by the contract or to stand by the contract and in- sist on its performance. However, his election to stand by the contract once exercised would have the effect of ratification of the contract with the knowledge of misrepresentation on the part of the other party and that would extinguish its power of avoidance. In the very nature of the right conferred on the par- ty affected, the law expects it to exercise its option promptly and communicate the same to the opposite party; for until the right of avoidance is exercised, the contract is valid, and things done thereunder may not thereafter be undone.
29. A right to rescind for misrepresentation can be lost in a variety of ways, some depending on the right of election. A representee on discovering the truth loses his right to rescind if once he has elected not to rescind. But he may lose even before he has made any election where by reason of his conduct or other circumstances it would be unjust or inequitable that he retains the right. For instance, where third parties have ac- quired rights under the contract; again where it would be un- just to the representor because it is impossible to restore him to his original position. Restitutio in integrum is not only a con- sequence of rescission, its possibility is indispensable to the right to rescind. Again, delay in election may make it unjust that the right to elect should continue. For this reason the right to rescission for misrepresentation in general must be promptly exercised. (See Indian Contract and Specific Relief Acts, Pol- lock and Mulla, 11th Edn., Vol. I, pp. 269-70.)"
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 59 arbp-846.14(j).doc
133. I am not inclined to accept the submission of the learned senior counsel for the petitioner that the letters addressed by the petitioner to the respondent and the correspondence with M/s.Accumulate Investments Pvt.Ltd. has not been considered by the arbitral tribunal. A perusal of the award clearly indicates that the arbitral tribunal has considered all the relevant correspondence and the pleadings in the impugned award.
134. In my view there is no merit in the submission of the learned senior counsel for the petitioner that the right of the petitioner in the title of the respondent in the shares was not lost. The petitioner himself had affirmed the title of the respondent in those shares and already got the same transferred in favour of the petitioner. The petitioner did not offer the entire 45% shareholding to the respondent. I am also not inclined to accept the submission of the learned senior counsel for the petitioner that the right of the petitioner to the title could be re-iterated in the facts and circumstances of this case. The petitioner had acted upon the title of the respondent in those shares and thus could not have raised such issue at the belated stage with ulterior motives.
135. Insofar as submission of the learned senior counsel for the petitioner that there was no decision rendered by the arbitral tribunal on the title of the respondent in the shares and the specific performance in favour of the respondent has been granted only because of the conduct of the petitioner is concerned, in my view there is no merit in this submission of the learned senior counsel for the petitioner. The arbitral tribunal has categorically rejected the challenge of the petitioner on the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 60 arbp-846.14(j).doc title of the respondent in respect of those shares by rendering detailed reasons in the impugned award.
136. The arbitral tribunal has also considered the entire pleadings and evidence on record while holding as to why the arbitral tribunal had come to the conclusion that in the facts and circumstances of this case, the prayer for specific performance in favour of the respondent ought not to be granted. The said M/s.Regency Hotels Pvt.Ltd. was admittedly impleaded by the respondent to the statement of claim, however in view of the objections raised by the petitioner for such impleadment and also in view of the respondent having filed a separate suit the respondent deleted the name of the said company from the array of the proceedings.
In my view there is no substance in the submission of the learned senior counsel for the petitioner that the arbitral tribunal had not considered the effect of the correspondence between the parties in the impugned award.
137. Insofar as submission of the learned senior counsel for the petitioner that in view of the alleged fraud committed by the respondent upon the petitioner, the entire transaction has been vitiated and such issue could be raised by the petitioner at any stage is concerned, it is not the case of the petitioner that such issue was raised before the arbitral tribunal and had not been considered. The petitioner was fully aware of the title of the respondent in the shares and had acted upon the agreement by transferring the entire shareholding of the respondent in favour of the petitioner. In my view the plea of the defective title raised by the petitioner at the belated stage was rightly deprecated by the arbitral tribunal. The petitioner in any event ought to have pleaded and proved ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 61 arbp-846.14(j).doc such alleged fraud which the petitioner has failed in the arbitral proceedings.
138. Insofar as submission of the learned senior counsel that in view of section 17 of the Specific Relief Act, the arbitral tribunal could not have granted any relief for specific performance is concerned, though such plea was alleged to have been urged by the petitioner before the arbitral tribunal, Mr.Mehta, learned senior counsel for the respondent has produced before this court written arguments filed by the petitioner before the arbitral tribunal which did not find any such submission based on section 17 of the Specific Relief Act. The petitioner also could not point out any specific ground raised in the petition alleging that such plea was raised by the petitioner before the arbitral tribunal and had not been considered. In my view there is thus no merit in this submission of the learned senior counsel. Be that as it may, the said plea in my view has no merit even otherwise. In my view the provisions of Sale of Goods Act would apply to the facts of this case. Mr.Mehta, learned senior counsel for the respondent has rightly placed reliance on sections 13(1) and 13(2) and sections 14 and 42 of the Sale of Goods Act, in support of this submission that the petitioner had accepted the title of the respondent in the shares.
139. Insofar as submission of the learned senior counsel for the petitioner that since the arbitral tribunal has rejected the plea of the respondent for specific performance or that the arbitral tribunal in the facts of this case could not have granted claim for specific performance and thus no compensation could have been awarded under section 21(2) ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 62 arbp-846.14(j).doc of the Specific Relief Act, 1963 is concerned, a perusal of the arbitral award clearly indicates that the arbitral tribunal has after considering the pleadings, documents and prayers has rendered a finding that in this case, the tribunal ought not to be granted the relief of specific performance. While rendering such finding, the arbitral tribunal also considered the prayers and the averments made in the statement of claim. The respondent had averred that if the arbitral tribunal hold the view that specific performance of the agreement cannot be granted, in that event compensation be granted. A perusal of the award clearly indicates that in the facts of this case, the arbitral tribunal categorically held that the said relief ought not be granted and thus under section 21(2) of the Specific Relief Act, the arbitral tribunal had exercised its discretion to award compensation in favour of the respondent.
140. Insofar as submission of the learned senior counsel that the arbitral tribunal could not have granted the relief for specific performance is concerned, under the provisions of the Specific Relief Act, the arbitral tribunal has power to grant specific performance of the shares in the private limited company. However in the facts of this case, the arbitral tribunal found that the said relief ought not to be granted, the arbitral tribunal exercised its discretion to award compensation under section 21(2) of the Specific Relief Act. There is no infirmity in the award on this ground found by this court.
141. The last submission of the learned senior counsel for the petitioner is that since the respondent had not issued any notice under the provisions of Interest Act, 1978, the arbitral tribunal could not have ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 63 arbp-846.14(j).doc awarded interest on damages upto the date of the award. In support of this submission, learned senior counsel for the petitioner placed reliance on :-
(1) Judgment of Supreme Court in case of State of Rajasthan and another vs. Ferro Concrete Construction Private Limited, (2009) 12 SCC 1 (paragraph 66) (2) Judgment of Supreme Court in case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and anothers vs. N.C.Budharaj (Deceased) by Lrs. And others (2001) 2 SCC 721 (Paragraph 21) (3) Judgment of Supreme Court in case of The Union of India vs. The West Punjab Factories Ltd. AIR 1966 Supreme Court 395 (Paragraph 16).
142. Mr.Mehta, learned senior counsel for the respondent on the other hand to oppose the submission of the petitioner on the issue of interest on damages for the past period relied upon the following judgments :-
(1) Judgment of Supreme Court in case of Sayeed Ahmed and Company vs. State of Uttar Pradesh and others (2009) 12 SCC 26 (Paragraphs 12, 13, 14 and 16) (2) Judgment of Supreme Court in case of McDermott International Inc. vs. Burn Standard Co. Ltd. and others (2006) 11 SCC 181 (Paragraphs 154) (3) Judgment of Bombay High Court in case of Angel Infin Pvt. Ltd.
vs. Echjay Industries Ltd. 2007(3) Bom.C.R.997 (Paragraphs 21 to
23) ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 64 arbp-846.14(j).doc (4) Judgment of Division Bench of Bombay High Court in case of Susaka Pvt.Ltd. vs. Union of India and others, 2005(2) Mah.L.J.327 (Paragraphs 4 to 6) (5) Judgment of Supreme Court in case of State of Haryana & Ors.
vs. S.L.Arora & Co., (2010) 3 SCC 690 (Paragraphs 16, 17, 23 and
24.) Paragraphs 12, 13, 14 and 16 of the said judgment of Supreme Court in case of Sayeed Ahmed and Company (supra) read thus :-
"12. The principles relating to interest were summarized by this court in State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (CA No.2764 of 2009 decided on 22.4.2009) thus:
(a) where a provision for interest is made on any debt or damages, in any agreement, interest shall be paid in accordance with the such agreement.
(b) Where payment of interest on any debt or damages is barred by express provision in the contract, no interest shall be awarded.
(c) Where there is no express bar in the contract and where there is also no provision for payment of interest then the principles of section 3 of Interest Act will apply and consequently interest will be payable:
(i) where the proceedings relate to a debt (ascertained sum) payable by virtue of a written instrument at a certain time, then from the date when the debt is payable to the date of institution of the proceedings;
(ii) where the proceedings is for recovery of damages or for recovery of a debt which is not payable at a certain time, then from the date mentioned in a written notice given by the person making a claim to the person liable for the claim that interest will be claimed.
(d) Payment of interest pendente lite and future interest shall not be governed by provisions of Interest Act, 1978, but by provisions of section 34 of Code of Civil Procedure 1908 or the provisions of law governing Arbitration as the case may be.::: Downloaded on - 25/04/2015 00:00:41 :::
ppn 65 arbp-846.14(j).doc
13. The Legislature while enacting the Arbitration and Conciliation Act, 1996, incorporated a specific provision in regard to award of interest by Arbitrators. Sub-section(7) of section 31 of the Act deals with the Arbitrator's power to award interest. Clause (a) relates to the period between the date on which the cause of action arose and the date on which the award is made. Clause (b) relates to the period from the date of award to date of payment. The said sub- section (7) is extracted below :
"31.(7)(a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment. "
Having regard to sub-section (7) of section 31 of the Act, the difference between pre-reference period and pendente lite period has disappeared in so far as award of interest by arbitrator. The said section recognises only two periods and makes the following provisions :
(a) In regard to the period between the date on which the cause of action arose and the date on which the award is made (pre-reference period plus pendente lite), the arbitral tribunal may award interest at such rate as it deems reasonable, for the whole or any part of the period, unless otherwise agreed by the parties.
(b) For the period from the date of award to the date of payment the interest shall be 18% per annum if no specific order is made in regard to interest. The arbitrator may however award interest at a different rate for the period between the date of award and date of ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 66 arbp-846.14(j).doc payment.
14. The decisions of this Court with reference to the awards under the old Arbitration Act making a distinction between the pre-reference period and pendente lite period and the observation therein that arbitrator has the discretion to award interest during pendente lite period inspite of any bar against interest contained in the contract between the parties are not applicable to arbitrations governed by the Arbitration and Conciliation Act 1996.
16. In view of clause (a) of sub-section (7) of section 31 of the Act, it is clear that the Arbitrator could not have awarded interest upto the date of the award, as the agreement between the parties barred payment of interest. The bar against award of interest would operate not only during the pre- reference period that is up to 13.3.1997 but also during the pendente lite period that is from 14.3.1997 to 31.7.2001."
Paragraphs 21 to 23 of the said judgment of Bombay High Court in case of Supreme Court in case of Angel Infin Pvt. Ltd. (supra) read thus :-
"21. It is clear from the perusal of sub-section 7 of Section 31 quoted above that the provisions operate unless there is an agreement to the contrary between the parties. Absence of agreement between the parties for charging of interest on interest will not prevent Section 31(7) of the Arbitration Act to operate. To oust the operation of Section 31(7) of the Arbitration Act, a positive agreement to the contrary to what is contained in Section 31(7) will have to be pointed out. It is nobody's case that there is a positive agreement between the parties providing that interest shall not be charged on the amount of interest and therefore, the powers conferred by Section 31(7) of the Arbitration Act on the Arbitrator were available to the sole arbitrator who made the award. The learned Counsel appearing for the Petitioners relies on the provisions of Section 3 of the Interest Act to claim that ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 67 arbp-846.14(j).doc awarding interest on interest by the learned arbitrator is contrary to the provisions of Section 3(3)(c) of the Interest Act. Section 3 of the Interest Act reads as under:-
"3. Power of court to allow interest.-
(1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say,-
(a) If the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;
(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings;
Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings interest shall not be allowed under this section for the period after such repayment.
(2) Where, in any such proceedings as are mentioned in sub-section (1)-
(a) judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and
(b) the sum represents or includes damages in respect of personal injuries to the plaintiff or any other ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 68 arbp-846.14(j).doc person, or in respect of a person's death, then, the power conferred by that sub-section shall be exercised so as to include in that sum interest on those damages or on such part of them as the court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages.
(3) Nothing in this section,-
(a) shall apply in relation to-
(i) any debt or damages upon which interest is payable as of right, by virtue of any agreement; or
(ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement;
(b) shall affect-
(i) the compensation recoverable for the dishonour of a bill of exchange, promissory note or cheque, as defined in the Negotiable Instruments Act, 1881 (26 of 1881); or
(ii) the provisions of rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908);
(c) shall empower the court to award interest upon interest."
22. Perusal of the above quoted provisions shows that it is sub-section 1 of Section 3 which confers power on the court to pass a decree for interest. Sub-section 3(c) clarifies that the power conferred by Section 3 on a court to award interest does not empower the court to award interest on interest. Thus, this provision does not lay down a blanket proposition ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 69 arbp-846.14(j).doc that no court has power to award interest on interest. The law incorporated in this provision is that Section 3 of the Interest Act does not empower the court to award interest on interest. In other words, the provision does not incorporate a negative mandate that no court can award interest on interest. The only law incorporated in this provisions is that Section 3 of the Interest Act does not empower the court to award interest upon interest. Therefore, it is possible that if there is any other provision in law empowering the court or the arbitrator to award interest upon interest, Section 3 of the Interest Act will not come into play. Perusal of the provisions of sub-section 7 of Section 31 of the Arbitration Act shows that it does not contain any prohibition like the one contained in Section 3 of the Interest Act. On the contrary, it empowers the arbitrator to award interest on the entire sum for which the award is made which may include the amount of interest. A comparison of the provisions of Section 34 of the CPC, Section 29 of the Arbitration Act, 1940 and sub-section 7 of Section 31 of the Arbitration Act, 1996, in my opinion, makes the position absolutely clear. Sub-section 7 of Section 31 is quoted above. Section 34 of the CPC and Section 29 of the Arbitration Act, 1940 read as under:-
"Section 34 of CPC:
Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, (with further interest at such rate not exceeding six per cent per annum, as the Court deems reasonable on such principal sum) from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 70 arbp-846.14(j).doc rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
2) Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie."
"Section 29 of the Arbitration Act:
Interest on awards.- Where and in so far as award is for the payment of money the Court may in the decree order interest, from the date of the decree at such rate as the Court deems reasonable, to be paid on the principal sum as adjudged by the award and confirmed by the decree."
23. Perusal of provisions of Section 34 of the CPC and Section 29 of the 1940 Arbitration Act shows that those provisions empower awarding of interest only on the principal sum and not the entire sum for which the award or decree is made. Sub-section 7 of Section 31, on the other hand uses phraseology to make the position clear that the power of the arbitrator to award interest is not restricted to award interest on the principal only, but the arbitrator has power to award interest on the entire sum for which the award is made. It clearly means that sub-section 7 of Section 31 confers powers on arbitrator to award interest also on that sum which is found to be due by the arbitrator as interest. The judgments considering the provisions of Section 34 of the Civil Procedure Code and the provisions of Section 29 of the Arbitration Act, 1940, in my opinion, are not relevant in so far as the provisions of Section 31(7) are concerned, because sub-section 7 of Section 31 contains the provision which is drastically different from the provisions of Section 34 of the CPC and Section 29 of the Arbitration Act, 1940. Sub-section 7 of Section 31 confers power on the arbitrator to award interest on interest, and therefore, sub-section 3 of Section 3 of the Interest Act will not operate in the present case. In my opinion, rightly reliance was placed on behalf of the Respondents on the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 71 arbp-846.14(j).doc provisions of sub-section 1 of Section 4 of the Interest Act. Sub-section 1 of Section 4 reads as under:-
"4(1) Notwithstanding anything contained in section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law." The above quoted provisions of Sub-section 1 of Section 4 of the Interest Act makes it clear that Section 3 does not operate to prevent the Court from awarding interest where the court can do so by virtue of any enactment or other rule of law. Therefore, it is clear that if there is a rule of law or enactment empowering the court to award interest, then Section 3 of the Interest Act does not oust the jurisdiction of the court. In other words, in case of any conflict between the provisions of Section 3 of the Interest Act and any other enactment, Section 3 yields to any other enactment. Sub-section 7 of Section 31 is definitely contains provision contrary to the provisions of Section 3 of the Interest Act, and therefore, in terms of the provisions of sub-section 1 of Section 4 of the Interest Act, Section 3 will have to yield to sub-section 7 of Section 31 of the Arbitration Act."
Paragraphs 4 to 6 of the judgment of Division Bench of Bombay High Court in case of Susaka Pvt.Ltd. (supra) read thus :-
"4. Under the Arbitration Act of 1940 there was considerable debate and discussion as to what was the interest payable during the pre-reference period, during the period of arbitration and post award period and as also what should be the rate of interest payable during these periods. Ultimately in G.C. Roy's case the Constitution Bench declared in unmistakable terms that basic proposition that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, by whatever name it may be called, viz. interest, compensation or damages, "is as valid for the period the dispute is pending before the arbitrator as it is for the period ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 72 arbp-846.14(j).doc prior to the arbitrator entering upon the reference."
This legal position was reiterated by the Constitution Bench judgment in N.C.Budharaj's case where the court held that the arbitrator appointed with or without the intervention of the court, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the contract to claim or grant any such interest. In a recent decision in T.P. George Vs. State of Kerala, which is also a case under the old act, the Court held that interest can be awarded at all four stages viz. (1) from the state of accrual of cause of action till filing of the arbitration proceedings, (2) during pendency of the proceedings before arbitrator, (3) further interest arising between date of award and date of the decree and (4) interest arising from date of decree till realisation of award.
5. In yet another decision in Oil and Natural Gas Commission Vs. M.C. Cleflland Engineers S.A. the Supreme Court has recognised that the Arbitrator has power to grant interest under both the heads -
(i) balance of amount claimed under the invoices and
(ii) interest on delayed payment.
In para 4 the Supreme Court observed thus:
"4. There cannot be any doubt that the arbitrators have powers to grant interest akin to S.34 of the C.P.C. which is the power or the Court in view of S.29 of the Arbitration Act, 1940. It is clear that interest is not granted upon interest awarded but upon the claim made. The claim made in the proceedings is under two heads -one is the balance of amount claimed under invoices and letter dated 10.2.1981 and the amount certified and paid by the appellant and the second is the interest on delayed payment. That is how the claim for interest on delayed payment stood crystallized by the time the ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 73 arbp-846.14(j).doc claim was filed before the arbitrators. Therefore, the power of the arbitrators to grant interest on the amount of interest which may, in other words, be termed as interest on damages or compensation for delayed payment which would also become part of the principal. If that is the correct position in law, we do not think that S.3 of the Interest Act has any relevance in the context of the matter which we are dealing with in the present case..." (Emphasis supplied)
6. In the light of this settled legal position it is difficult to sustain the view that interest cannot be awarded on the amount of damages prior to the date of award. The decision in R.L. Rallia's case on which Mr.Suresh Kumar has placed reliance has merely observed that in the absence of any usage or contract or any provision of law to justify award of interest, interest cannot be awarded by way of damages for wrongful detention of money. This judgment has no application after the enactment of sec.31(7) of the Act. Sec.31(7) specifically contemplates that, in a situation where the parties have not agreed upon a rate of interest, the Arbitral Tribunal when awarding payment of money may include in the sum for which the award is made interest at such rate as it deems reasonable on the whole or any part of the money, for whole or any part of the period between the date on which cause of action arose and the date on which the award is made. Thus, under the 1996 Act the matter of interest is left entirely to the discretion of the Arbitral Tribunal. In the present case the arbitrators had not accepted the termination of the contract as valid and as such they were of the view that in respect of the amount awarded against the claims, interest is payable to the claimants. The arbitrators noted that the interest rates were falling from 1995 onwards and awarded interest at the rate of 15% p.a. upto the period of reference and 12% ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 74 arbp-846.14(j).doc p.a. from 6th May, 1979 to the date of award i.e. 19th September, 2002. The jurisdiction of the Court to interfere with the award is confined to matters enumerated in section 34 of the 1996 Act. We do not think that the contention of respondents about interest would fall within the ambit of section 34 to interfere with the award."
143. Supreme Court in case of Hyder Consulting (UK) Limited vs. Governor, State of Orissa, Through Chief Engineer, (2015) 2 SCC 189 has dealt with the power of the arbitral tribunal under section 31(7) of the Arbitration and Conciliation Act, 1996 in great detail. The majority view of the Supreme Court in the said judgment on this issue in paragraphs 3 and 4 per S.A.Bobde, J. and paragraphs 26 to 33, concurring judgment of A.M.Sapre, J. in case of Hyder Consulting (UK) Limited (supra) read thus :-
"Per S.A.Bobde, J.
3. Sub-section (7) of Section 31 of the Act, which deals with the power of the Arbitral Tribunal to award interest, reads as follows:
"31. (7)(a) Unless otherwise agreed by the parties, where and inso- far as an arbitral award is for the payment of money, the Arbitral Tribunal may include in the sum for which the award is made inter- est, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of pay-
ment."
(emphasis supplied)
4. Clause (a) of sub-section (7) provides that where an award is made for the payment of money, the Arbitral Tribunal may in- clude interest in the sum for which the award is made. In plain ::: Downloaded on - 25/04/2015 00:00:41 ::: ppn 75 arbp-846.14(j).doc terms, this provision confers a power upon the Arbitral Tribunal while making an award for payment of money, to include interest in the sum for which the award is made on either the whole or any part of the money and for the whole or any part of the period for the entire pre-award period between the date on which the cause of action arose and the date on which the award is made. To put it dif- ferently, sub-section (7)(a) contemplates that an award, inclusive of interest for the pre-award period on the entire amount directed to be paid or part thereof, may be passed. The "sum" awarded may be the principal amount and such interest as the Arbitral Tribunal deems fit. If no interest is awarded, the "sum" comprises only the principal. The significant words occurring in clause (a) of sub-sec-
tion (7) of Section 31 of the Act are "the sum for which the award is made". On a plain reading, this expression refers to the total amount or sum for the payment for which the award is made. Par- liament has not added a qualification like "principal" to the word "sum", and therefore, the word "sum" here simply means "a par-
ticular amount of money". In Section 31(7), this particular amount of money may include interest from the date of cause of action to the date of the award.
Per Sapre, J.
26. Section 31(7)(a) of the Act deals with grant of pre-award in-
terest while clause (b) of Section 31(7) of the Act deals with grant of post-award interest. Pre-award interest is to ensure that arbitral proceedings are concluded without unnecessary delay. Longer the proceedings, the longer would be the period attracting interest.
Similarly, post-award interest is to ensure speedy payment in com- pliance with the award. Pre-award interest is at the discretion of the Arbitral Tribunal, while the post-award interest on the awarded sum is mandate of the statute--the only difference being that of rate of interest to be awarded by the Arbitral Tribunal. In other words, if the Arbitral Tribunal has awarded post-award interest payable from the date of award to the date of payment at a particular rate in its discretion then it will prevail else the party will be entitled to claim post-award interest on the awarded sum at the statutory rate speci- fied in clause (b) of Section 31(7) of the Act i.e. 18%. Thus, there is a clear distinction in time period and the intended purpose of grant of interest.
::: Downloaded on - 25/04/2015 00:00:41 :::ppn 76 arbp-846.14(j).doc
27. Section 31(7)(a) employs the words "... the Arbitral Tri- bunal may include in the sum for which the award is made interest...". The words "include in the sum" are of utmost impor- tance. This would mean that pre-award interest is not independent of the "sum" awarded. If in case, the Arbitral Tribunal decides to award interest at the time of making the award, the interest compo- nent will not be awarded separately but it shall become part and parcel of the award. An award is thus made in respect of a "sum"
which includes within the "sum" component of interest, if awarded.
28. Therefore, for the purposes of an award, there is no distinc- tion between a "sum" with interest, and a "sum" without interest. Once the interest is "included in the sum" for which the award is made, the original sum and the interest component cannot be segre- gated and be seen independent of each other. The interest compo-
nent then loses its character of an "interest" and takes the colour of "sum" for which the award is made.
29. There may arise a situation where, the Arbitral Tribunal may not award any amount towards principal claim but award only "in- terest". This award of interest would itself then become the "sum" for which an award is made under Section 31(7)(a) of the Act.
Thus, in a pre-award stage, the legislation seeks to make no distinc- tion between the sum awarded and the interest component in it.
30. Therefore, I am inclined to hold that the amount award un- der Section 31(7)(a) of the Act, whether with interest or without in- terest, constitutes a "sum" for which the award is made.
31. Coming now to the post-award interest, Section 31(7)(b) of the Act employs the words, "A sum directed to be paid by an arbi- tral award...". Clause (b) uses the words "arbitral award" and not the "Arbitral Tribunal". The arbitral award, as held above, is made in respect of a "sum" which includes the interest. It is, therefore, obvious that what carries under Section 31(7)(b) of the Act is the "sum directed to be paid by an arbitral award" and not any other amount much less by or under the name "interest". In such situa- tion, it cannot be said that what is being granted under Section 31(7)(b) of the Act is "interest on interest". Interest under clause
(b) is granted on the "sum" directed to be paid by an arbitral award wherein the "sum" is nothing more than what is arrived at under clause (a).
::: Downloaded on - 25/04/2015 00:00:42 :::ppn 77 arbp-846.14(j).doc
32. Therefore, in my view, the expression "grant of interest on interest" while exercising the power under Section 31(7) of the Act does not arise and, therefore, the Arbitral Tribunal is well empow- ered to grant interest even in the absence of clause in the contract for grant of interest.
33. My aforesaid interpretation of Section 31(7) of the Act is based on three golden rules of interpretation as explained by Jus- tice G.P. Singh in Principles of Statutory Interpretation (13th Edn., 2012) where the learned author has said that while interpreting any statute, language of the provision should be read as it is and the in- tention of the legislature should be gathered primarily from the lan- guage used in the provision meaning thereby that attention should be paid to what has been said as also to what has not been said; second, in selecting out of different interpretations "the court will adopt that which is just, reasonable, and sensible rather than that which is none of those things"; and third, when the words of the statute are clear, plain or unambiguous i.e. they are reasonably sus-
ceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequence (see pp. 50, 64 and
132). I have kept these principles in mind while interpreting Section 31(7) of the Act."
144. From the perusal of the judgment of Supreme Court in the aforesaid judgment and judgments of this court, the following statement of law can be culled out :-
"a) Section 31(7) of the Arbitration and Conciliation Act, 1996 deals with the power of the arbitrator to award interest at such rate as it deems reasonable on the whole or any part of the money in the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made however subject to the agreement as regards the rate of interest on unpaid sums between the parties.
b) Judgment of Supreme Court under the Arbitration Act, 1940 holding that the arbitrator had a discretion to award interest during pendente lite period inspite of any bar against interest contained in the contract between the parties are not applicable to arbitrations governed by the Arbitration and Conciliation Act, 1996.::: Downloaded on - 25/04/2015 00:00:42 :::
ppn 78 arbp-846.14(j).doc
c) The bar against award on interest would operate not only during the pre-reference period but also during the pendente lite period. Bar in the agreement would not operate for the future interest.
d) Under section 31(7) (a) an award for payment of money may be inclusive on interest and on sum of the principal amount plus interest may be directed to be paid by the arbitral tribunal for the pre-award period.
e) The arbitral tribunal is empowered to grant interest even in the absence of clause in the contract for grant of interest. The arbitral tribunal has power to grant interest on interest under section 31(7) (b).
(f) Under section 31(7) it does not contain any prohibition like one contained under section 3 of the Interest Act and empowers the arbitrator to award interest on the entire sum for which the award is made which may include the amount of interest.
(g) Power of the arbitrator under section 31(7) is not restricted to award interest on the principal only.
(h) Section 3(3) of the Interest Act will not operate in view of section 31(7) of the Arbitration and Conciliation Act, 1996.
(i) Under section 31(7), the arbitrator has power to award interest on damages prior to the date of award, even if no notice under section 3(b) of the Interest Act, 1978 is issued by the claimant."
145. In my view there is thus no substance in the submission of the learned senior counsel for the petitioner that the arbitral tribunal could not have awarded any interest on the claim for compensation/damage upto the date of award. In my view the respondent was not required to issue any notice under the provisions of Interest Act, 1978 for making the claim for interest on damages. The arbitral tribunal is empowered to award interest on damages from the due date till the date of award and even to award future interest even if no notice under the provisions of Interest Act, 1978 is issued by the claimant. In my view, since the arbitral tribunal has been granted such power by the legislature under section ::: Downloaded on - 25/04/2015 00:00:42 ::: ppn 79 arbp-846.14(j).doc 31(7) of the Arbitration and Conciliation Act, 1996, the claimant is not required to comply with the provisions of Interest Act, 1978 for the purpose of claiming interest for the past period on the compensation/ damages.
146. It is submitted by the learned senior counsel for the respondent that under section 31(7) of the Arbitration and Conciliation Act, 1996 the arbitral tribunal has power to award interest on interest from the date of cause of action till the date of payment at such rate as the arbitral tribunal may deem fit. Learned senior counsel distinguishes judgments relied upon by the learned senior counsel for the petitioner on the ground that each of those judgments were delivered under the provisions of Arbitration Act, 1940 and not under the provisions of Arbitration and Conciliation Act, 1996. In my view the judgments relied upon by the respondent were delivered after construing the power of the arbitral tribunal under section 31(7) of the Arbitration and Conciliation Act, 1996 and it is held that the said power under section 31(7) of the Arbitration and Conciliation Act, 1996 are different than the power of the arbitral tribunal under the provisions of Arbitration Act, 1940. In my view the judgments delivered under the provisions of the Arbitration Act, 1940 on the powers of the arbitrator cannot be applied to the matter under the provisions of the Arbitration and Conciliation Act, 1996.
147. Insofar as quantification of the claim for compensation of Rs.3,38,00,000/- awarded by the arbitral tribunal in favour of the respondent is concerned, since the learned senior counsel for the petitioner has not urged any submission, that part of the award allowing ::: Downloaded on - 25/04/2015 00:00:42 ::: ppn 80 arbp-846.14(j).doc the claim for compensation and more particularly in paragraphs 43 to 46 is confirmed. Be that as it may, the arbitral tribunal has considered the pleadings and evidence while allowing the said claim and has rendered a finding of fact which in my view is not perverse and thus no interference is warranted with such finding of fact and the amount awarded by the arbitral tribunal.
148. In my view, there is no merit in any of the submission made by the learned senior counsel for the petitioner. Petition is devoid of merits. I, therefore, pass the following order :-
(a)
(b) Arbitration Petition No.846 of 2014 is dismissed.
There shall be no order as to costs.
R.D. DHANUKA, J.
::: Downloaded on - 25/04/2015 00:00:42 :::