Delhi District Court
Rajesh Verma vs Ashwani Kumar Khanna on 11 July, 2024
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE-05,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
ARBTN No. 510/2017
CNR No. DLSE01-008992-2017
Shri Rajesh Verma
S/o Late Shri S.L. Verma
R/o C-24A, Ground Floor,
Kalkaji, New Delhi - 110019 .....Petitioner
Versus
Shri Ashwani Kumar Khanna
S/o Late Shri Om Prakash Khanna
R/o 16C, Pocket A-14,
Kalkaji Extension,
New Delhi - 110019 ....Respondent
Date of Institution : 05.12.2017
Date of final arguments : 04.06.2024
Date of Judgment : 11.07.2024
JUDGMENT
1. The present petition filed by the petitioner (respondent in the award filed before Ld. Arbitrator) assails the award dated 31.10.2017 (hereinafter referred to as "the impugned judgment") passed by Ld. Arbitrator Shri Justice M.L. Mehta (Retd.) in arbitration case arising out of order dated 19.04.2017 passed by Hon'ble Supreme Court of India in ARBTN NO. 510/2017 Page no. 1 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:39:47 +0530 Civil Appeal No. 4095/2016. For the sake of convenience, parties will be referred by their original status.
Averments of the claimant.
2. The factual matrix of the case is that claimant took a shop measuring 153.58 sq.ft. of property bearing no. 1729 situated in Gali no. 5, Govindpuri Extension, Kalkaji, New Delhi - 110019 (hereinafter referred to as "the tenanted shop") on rent from the father of respondent at the monthly rate of Rs.175/-. Thereafter, parties entered into agreement to sell on 31.10.2014 whereby respondent agreed to sell the tenanted shop to the claimant for total sale consideration of Rs. 42 lacs, after renovation/new construction of the shop and the claimant handed over the possession of the tenanted shop to the respondent.
3. Now as per averments of the claimant, the possession of the tenanted shop was handed over back to the respondent on 01.11.2014 in terms of agreement to sell dated 31.10.2014 and till that time, petitioner regularly paid the rent. Before the agreement to sell dated 31.10.2014, the parties entered into agreement to sell dated 03.08.2011 for a total sale consideration of Rs.32,00,000/- out of which sum of Rs.23,00,000/- was paid in advance. However, the said agreement was rescinded and parties entered into fresh agreement to sell dated 31.10.2014 for total sale consideration of Rs.42,00,000/- out of which respondent acknowledged the receipt of Rs.32,00,000/- and the remaining was to be paid at the time of obtaining possession of the tenanted shop which was to be given by ARBTN NO. 510/2017 Page no. 2 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:39:59 +0530 01.11.2014. It was further agreed vide said agreement that the respondent was to demolish and construct new shop in place of tenanted shop on or before 31.03.2015 failing which he had to pay interest at the rate of Rs.12% per annum. The petitioner in compliance of said term duly handed over the possession of the shop to the respondent on 01.11.2014 and made part payments to the tune of Rs.35,45,000/- on various dates to him. He is further willing to pay the remaining sale consideration amount of Rs.6,55,000/- but respondent has failed to deliver the possession of the said shop. The petitioner contacted the respondent time and again to know about the status of construction and was informed that the construction was at its finishing stages. It was only on the respondent's instruction that he incurred the expenses on furnishing the shop.
Thereafter vide letter dated 28.05.2015 with enclosure of demand draft of Rs.6,55,000/- the petitioner requested the respondent to be present before the office of Sub Register V, Mehrauli, New Delhi for registration of sale deed and the said letter was delivered to him on 29.05.2015. Respondent replied the said notice vide reply dated 03.06.2015 whereby though he admitted the fact of entering to agreement to sell dated 31.10.2014 but has submitted that since the remaining sale consideration amount has not been paid, the agreement to sell has lapsed. Vide letter dated 29.06.2015 the petitioner invoked the arbitration clause of the agreement to sell dated 31.10.2014 which was replied by the respondent thereby challenging the veracity of the document and alleged that that same was an outcome of fraud.
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Counter claim filed by respondent (petitioner herein):
4. Respondent contested the claim by filing detailed reply taking preliminary objections to the effect that the claim of the claimant is based on fraud and malafide; that the claimant has committed fraud and breach of trust and had clandestinely obtained the respondent's signature on Agreement to sell dated 31.10.2014 and the contents of the same are wrong and specifically denied to the extent that claimant had already paid Rs.32,00,000/- in cash to the respondent; that the claimant, who was tenant, became unauthorized occupant for the tenanted premises on account of non-payment of rent; that the claimant was defaulter in payment of rent since last many years and whenever he approached him for the payments of outstanding dues, he pleaded for extension of time and rent was revised to Rs.1200/- per month after demise of respondent's father; that the claimant wrongly averred that he was a protected tenant and hence claim is liable to be set aside; that the claimant has not approached the Ld. Arbitrator with clean hands; that claimant be put to strict proof of payment of Rs.32,00,000/- since he did not even have money to pay the meager rent of Rs.1200/- per month; that the veracity and genuineness of the agreement to sell has to be ascertained as the same did not match with the agreed draft of the agreement to sell. Respondent also stated that he had filed a police complaint against the claimant and even during investigation by the police, the claimant could not establish the proof of payment of more than Rs. 12 lacs. Respondent also stated that claimant had no mean to pay Rs. 32 lacs and that too without receipt and ARBTN NO. 510/2017 Page no. 4 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:40:36 +0530 having defaulted in making payment of entire sale consideration of Rs. 42 lacs upto 31.03.2015 despite the shop was ready. Respondent also alleged that the claimant was not ready and willing to execute the sale deed as he neither got prepared the DD for balance amount of Rs. 38,55,000/- nor had purchased the stamp papers or paid for the registration charges. Respondent also stated that the claimant had made payment of sum of Rs. 3,45,000/- only and the same stands forfeited on account of his failure to fulfill the obligations. The respondent had set up the counter claim. In reply on merits, respondent has denied all the averments of petition and prayed for its dismissal.
5. The counter claim of the respondent (petitioner herein) was dismissed while the claim of the claimant was awarded vide impugned award dated 31.10.2017. Aggrieved by the said award, the present petition has been filed by the petitioner/respondent.
6. Arguments heard. Record perused.
Grounds of challenge:
7(a). Wrong documents placed on record: Ld. Counsel for respondent /petitioner submitted that Ld. Arbitrator has committed mistake while granting relief on a document which was not placed on record and same was mischievously replaced with another document by the claimant whereas correct document was never placed before the Ld. Arbitration Tribunal and the agreement to sell dated 31.10.2014 was never produced ARBTN NO. 510/2017 Page no. 5 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:40:50 +0530 rather another agreement to sell duly notarized on 03.11.2014 was placed on record purporting as agreement to sell dated 31.10.2014;
7(b). Suspicious conduct of counsel for claimant: It has been further submitted by respondent /petitioner that the conduct of counsel for claimant remained suspicious and fraudulent that on 03.12.2016 the typist had stated that last paragraph of the cross-examination of CW-2 Ms. Anita Gupta Sharma possibly was not saved on the pen drive and it was for the Ld. Arbitrator to conclude whether the act of omission was a machine error or a deliberate mischief. It has been further argued that the affidavit as was signed or explained to CW-3 was different from what was finally produced before the Court or before the Ld. Arbitrator and this elucidates that the claimant was capable of executing the fraud which has been committed upon the petitioner.
7(c). Error of facts and law committed by Ld. Arbitrator: It has been further submitted that that Ld. Arbitrator has committed error on law and facts as the claimant failed to prove that he paid Rs.32,00,000/- in cash to the petitioner and takes a somersault in pleadings and try to justify the same with various other modes on the basis of non existing agreement dated 03.08.2011. It has been further argued that claimant measurably failed to substantiate any payment to the petitioner for purchase of the tenanted shop by evidence or by virtue of financial capacity. It has been further argued that Ld. Arbitrator failed to address the novice question to adjudicate the payment of Rs. 32 lacs in cash by claimant with respect to ARBTN NO. 510/2017 Page no. 6 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:40:59 +0530 documents evidence, financial capacity and status report of police.
7(d). No decision on application of respondent (petitioner herein): It has been further averred that the Ld. Arbitrator erred in not deciding the application seeking direction to place the income tax returns of the claimant and orally directed the claimant to place the same on the date of arguments and nothing reflects in the impugned award in this regard.
7(e). Manipulation by the claimant: It has been further contended that the claimant has committed fraud with arbitration proceeding by manipulating the documents, filing wrong affidavits and misleading the Tribunal.
7(f). Conduct of claimant not appreciated correctly: It has been further submitted that the buyer/respondent has not made any averment nor placed documents to substantiate the claim of "willingness and readiness". It has been further argued that the claimant has no reason to carry additional sum of Rs. 07 lacs in cash to a crowded place as the Sub- Registrar Office is on the pretext of payment of 7% stamps duty. It has been further argued that the contents of agreement stand contradicted by conduct of the respondent/buyer. It has been further argued that as per Claimant he had also requested two Witnesses to be present on the date of registration Mr. Vijay Sharma and Mr. J.R. Arora through Speed Post, but they were never summoned before the Ld. Arbitrator and hence his claim of having carried Rs. 10 Lakh with him to the Sub Registrar office or ARBTN NO. 510/2017 Page no. 7 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:41:09 +0530 being in a position to pay the Stamp Duty for registration of property is not tenable.
7(g). Claimant has no financial capacity to pay Rs. 32 lakhs: It has been further argued that claimant's claim qua handing over/paying Rs. 32 Lakhs "cash" to respondent(petitioner herein) towards buying the property in dispute, ought be adjudicated under strict judicious acumen, for the reason that prospective buyer was not a person who had means to pay Rs 32 Lakhs in cash in a single transaction, that to without obtaining any receipt thereof. It has been further argued that the case of the claimant is that he had paid Rs 32 Lakh in following manner i.e.
(i) Rs. 23 Lakhs in terms of Agreement Document dated 3.8.2011.
(ii) Rs. 3.45 Lakhs by various Cheques.
(iii) Paid Rs. 5 Lakh by Cheque to respondent (Petitioner herein).
(iv) Paid Rs 2 Lakh cash to mother of respondent.
(v) Rs. 6.55 Lakh by way of Bank Draft he purportedly made for handing over at the time of Registry.
(vi) Rs 10 lakh he was carrying CASH on the date of Registry, for purchase of Stamp.
(vii) Rs. 9 Lakhs paid by the Son of claimant Col. Nitin Khanna.
It has been argued that the falsehood stands established from his own statements as the claimant was not a person of means to Pay Rs 59 Lakhs, despite the fact that he is not an Income tax payee at all.
7(h). Fraud by claimant: It has been contended that the claimant had ARBTN NO. 510/2017 Page no. 8 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:41:18 +0530 committed fraud and breach of trust and had clandestinely obtained the respondent's signatures on Agreement to Sell purported to be dated 31st October 2014 wherein the claimant had allegedly paid Rs. 32 Lakhs "Cash" to the Petitioner. It has been further argued that the Col. Nitin Khanna (CW-4) who is the younger Son of the claimant tried to justify the financial arrangements while handing over Rs 9 Lakhs cash from drawings from ATM, without supporting from Bank Statement and it also defies logic as to why a well educated IIT alumnus Army Colonel i.e. Col. Nitin Khanna (CW-4) would choose to withdraw a sum of Rs. 9 lakhs from bank ATM and pay the said amount to his father in cash while he could have conveniently chosen to make a bank transfer in form of NEFT/RTGS Bank Draft/ Pay Order etc. directly in favour of his father i.e. the Claimant for onward payment to the respondent. As per testimony as recorded in cross examination of CW-4 it is evident that a cover up and non believe worthy story is being narrated.
7(i) Readiness and willingness of claimant not established: It has been further argued that the Circumstantial Evidence does not establish the willingness and readiness of the claimant as he never purchased/applied the Stamp Paper nor deposited the Corporation Tax for the purpose of doing Registry of the Shop.
7(j) The CD relied by claimant during cross examination of respondent, against the claimant: It has been further argued that the Claimant abruptly filed a CD with transcript during course of cross examination, containing ARBTN NO. 510/2017 Page no. 9 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:41:27 +0530 alleged voice recording along with transcripts thereof on 7.2.2017 and claimant has not being able to prove the same. The said act was meant solely to create drama and mislead the hon'ble arbitrator and even otherwise although the voice in CD has been denied by the respondent yet the same contains no statement regarding receipt of any monies and hence goes against the Claimant's own case. It is also notable that the Claimant never made use of this CD or its Transcript at any court prior to said occasion nor mentioned about same in any of the notices/communication exchanged inter se parties.
7(k) Perjury by the claimant: It has been further contended that during course of cross examination of CW-1 Sh. Ashwani Kumar Khanna the Agreement dated 3.8.2011 was de-exhibited as original was not available and the falsehood & an act of perjury by the Claimant established as same was repeatedly stated by the respondent (petitioner herein) in course of his reply submitted in both OMP 312 of 2015 as well as ARB.P. 434 of 2015 stating that agreement dated 03.08.2011(C-2) had never been executed, however, the claimant had in its rejoinder in both the OMP as well as in the Arbitration Petition falsely stated that he had filed on record the agreement dated 03.08.2011. The said statement of Claimant amounts to perjury and establishes that the claimant had from the very beginning based his claims on false narrations. It has been further argued that there was no reflection of the Agreement dated 03.8.2011 till the claimant approached High Court by way of OMP 312/15 and it was for first time averred in OMP.
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2024.07.12 21:42:11 +0530 7(l) Non-application of judicious mind by Ld. Arbitrator: It has been further averred that Ld Arbitrator has not applied its judicious mind to adjudicate on the amount paid by the claimant, particularly when, the Agreement dated 03.8.2011 could not be proved by the claimant and thus, a sum of Rs 23 Lakhs purported to be paid by virtue of Agreement dated 3.8.2011 itself rejects the contention of the claimant that Rs 32 lakhs including Rs 23 Lakhs have been paid. It has been further argued that the claimant, in his written arguments submitted before Arbitrator had replied upon the order dated 03.12.2015 which was duly interfered by Supreme Court, with clear mandate that observations made in said order should not be made to influence the proceedings. It has been further argued that the Ld. Sole Arbitrator did not apply his judicious mind over the facts and had passed the impugned Award dated 31.10.2017 in arbitrary manner and the impugned Award dated 31.10.2017 is illegal and has no force of law.
7(m) The impugned award against public policy: It has been further argued that admittedly, the agreement dated 03.08.2011 is non-existing document, therefore payment of Rs.23 lacs cannot be established and therefore, the impugned award is in gross violation of public policy having patent defect on the face of it.
8. Ld. Counsel for respondent/petitioner herein has relied upon the judgments as follows:
1. Patel Engineering Ltd. V. North Eastern Electric Power Corp.
ARBTN NO. 510/2017 Page no. 11 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:45:21 +0530 [2020 7 SSC 167] [Pr.22 and 23;
2. M/s SMS Ltd. V. Konkan Railway Corporation Ltd. [2020 (4) R.A.J. 260;
3. Govt. of NCT of Delhi V. Garg Builders [2013 (138) DRJ691] [Pr.18,19,20];
4. SSANGYONG Engineering & Construction Co. Ldt. V. NHAI [2019 (15) SSC 131] [Pr.41]
5. Devenderjeet Singh Sethi. V. Om Prakash Arora [2019 SSC online Del 8974];
6. Sardar Singh & Ors. V. Iqbal Narain & Ors. [1924 SSC Online Oudh JC 92];
7. Roop Singh. V. Ram Singh [2000 (3) SSC 708] [Pr. 8];
8. S.P. Chengalvaraya Naidu (Dead) by Lrs. V. Jagannath (Dead) by Lrs. [(1994) 1 SCC 1] [Pr. 6];
9. Veena Singh. V. District Registrar/Additional Collector. [(2022).7.SSC.1]. [Pr.42,51,65,66,69,71,76,77,91,94,95]
10. M/S. SATJAS GLOROCKS PVT. LTD. V. BHARAT ALUMINIUM CO. LTD. [2011 SCC ONLINE CHH 351] (PR.
20).
11. I-Pay Clearing Service Private Ltd. V. ICICI Bank Limited [(2022) 3 SCC 121] [Pr. 41&42];
12. Delhi Metro Rail Corporation Ltd. V. Delhi Airport Metro Express Pvt. Ltd. [2024 SCC Online SC 522] [Pr. 67 & 68]
13.Oil and Natural Gas Corporation Ltd. V. Afcons Gunanusa JV.
[2022 SCC Online SC 1122] [Pr.144 & 168]
14. Sunehari Bagh Builder Pvt. Ltd. V. Airport Authority of India [2022 SCC Online Del 3946] [Pr. 28 & 29];
15. National Highway Authority of India. V. M/S Ssangyong Engineering and Construction Co. Limited [O.M.P. (COMM) 340/2021] [Pr. 113 to 119]
9. Ld. Counsel for claimant (respondent herein) has filed written submissions and had argued that the scope of Section 34 of Arbitration and Conciliation Act is limited and respondent /petitioner herein cannot ask the court to re-appreciate the evidence in grab of the petition Section 34 of Arbitration and Conciliation Act. Further, Ld. Counsel for claimant submitted that Ld. Arbitrator has rightly awarded the claim and rejected ARBTN NO. 510/2017 Page no. 12 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:45:31 +0530 the counter claim. Further, Ld. Counsel for claimant has also read over the relevant portion of the record and has argued that Ld. Arbitrator has correctly interpreted the evidence and the decision given by Ld. Arbitrator is reasonable and well versed in law and facts. Ld. Counsel for claimant/respondent herein has relied upon the judgments which are as follows:
1. Associate Builders V Delhi Development Authority, AIR 2015 SC 620;
2. Delhi Development Authority v Bhardwaj Brothers, 213(2014) DLT 34 675 DB;
3. Delhi State and Infrastructure Development Corporation Limited v M/s Rama Construction Company, 2014 (3) ArbLr 116;
4. Southern Petrochemical Industries corporation Ltd. v The Great Eastern Shipping Co. Ltd. and Another, 2016 (1) Arb LR 64 (Delhi) (DB);
5. Dhruv Varma and Others v ABN Amro Bank and Others, 2016 III AD (Delhi) 463;
6. Svenska Handelsbanken v Indian Charge Chrome and Others, (1994) 1 SCC 502;
7. Grasim Industries Ltd. and Another v S. 91 and 92 Agarwal Steel, Civil Appeal No. 5994 Evidence Act of 2004 decided on 20.10.2009;
8. Shailendra Nath Endlay and Another S. 91 and 92 v Kuldip Gandotra, 180 (2011) DLT Evidence Act 769 (DB);
9. Ritu Mercantiles Pvt. Ltd. and Another v Leelawati 2013(2) RLR Evidence Act 170;
10. Rajesh V Pienne Industrial Consultants Pvt. Ltd. 2017 VIII AD (Delhi) 450;
11. Jai Bhagwan v Rajesh, CS (OS) No. 714 of 2008 decided on 05.5.2008;
12. Shon Randhawa versus Ramesh Vangal and Others, 277 (2021) DLT 141 (DB);
13. Sports station (India) Pvt. Ltd. Versus Sunil Rai 2019 (1) RLR 206;
14. Bal Kishan versus State and Another 1976 (12) DLT 311.
10. Written submissions have submitted by both parties.
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11. I have heard Ld. Counsel for the parties and perused the record.
12. Before analysis of the case, the extract of issues as well as findings of the award are reproduced as under:
Issue no. (1) Whether the agreement dated 31st October 2014 executed between the parties is actuated by fraud, as alleged by the Respondent. If so, to what effect? OPR Issue no. (3) Whether the Claimant paid Rs. 32 Lakhs as advance to the Respondent as alleged by the Claimant and not paid as alleged by the Respondent? OPC OPR (both the issues pertain to claim of the claimant) Findings:
The conclusion of the above discussion comes out to be that the Agreement dated 31st October 2014 (Exhibit CW1/7) was free and voluntary Agreement of transaction entered into by the Claimant and the Respondent and the plea of fraud taken by the Respondent is itself smeared with the element of dishonest intention on the part of the Respondent. Further, it also stands established that the Claimant paid Rs. 32 Lakhs to the Respondent under the said Agreement Exhibit CW1/7 followed by further payment of Rs. 3,45,000/- by different cheques between 8th January 2015 to 24th March 2015 and thereby making the total payment of Rs. 35,45,000/-, and leaving the balance of Rs.
6,55,000/- payable at the time of complete possession and execution of sale deed by 31st March 2015. Accordingly, the issues are decided in ARBTN NO. 510/2017 Page no. 14 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:45:51 +0530 favour of the Claimant and against the Respondent.
Issue No. (2) Whether the Claimant is entitled to the relief of specific performance of the Agreement to Sell dated 31.10.2014 for the said property? OPC (the issue pertains to claim of the claimant) Findings:
In view of my discussion as above, the Claimant is entitled to the relief of specific performance of the Agreement dated 31st October 2914. Accordingly, the issue is decided in favour of the Claimant and against the Respondent.
Issue No.(4) The effect outcome of Issue Number 3 on the claims no. A-4 of the Claimant or the Counter Claims No, 3, 6 and 7 of the Respondent? OPC/OPR (the issue pertains to counter claim of the respondent) Findings:
The Claimant has sought the reliefs of mandatory injunctions directing (i) the Respondent to transfer the shop in his favour and (ii) to handover the possession of the shop to him. Though both these reliefs are available within the relief of specific performance, but there is no impediment in grant of these reliefs as well. In view of my findings on issue nos. 1, 2 and 3, the Claimant is entitled to seek both these reliefs of mandatory injunctions against the Respondent. The issue is accordingly decided in favour of the Claimant and against the Respondent.
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Issue No. (5) Whether the Claimant is entitled to the relief of damages as per claim B-3, B-5 and if so, whether with interest @18% per annum or any other rate and period? OPC (the issue pertains to claim of the claimant) Findings:
This is undisputed that the Claimant has taken another shop on rent near the shop in question. The Claimant has taken the said shop on rent vide registered lease deed Exhibit CW1/21 @ rental of Rs, 30,000/- per month. He has placed on record the rent receipts in respect of this shop as Exhibit CW1/22/1 to CW1/22/28. His testimony in this regard has remained unassailed. The Respondent himself as also his brother RW- 2 admitted that the Claimant had taken a shop on rent near the shop in question. According to RW-1 also the rent of the shop similar to the shop in question in the same vicinity was Rs. 40,000/- per month. Thus, there is no reason to disbelieve the Claimant that he had taken another shop on rent @ Rs. 30,000/- per month. Since the possession of the shop in question was to be delivered to the Claimant by 31.03.2015, and there being no default or breach on the part of the Claimant, he had been burdened with the expenses of Rs. 30,000/- per month because of no fault of his. He would thus be entitled to have the claim of this amount at the rate of Rs. 30,000/- per month with effect from 1st June 2015 till the date of registration of Sale Deed and delivery of possession of the shop in question by the Respondent.
In view of my findings on issue nos. 1, 2 and 3 as also reliefs of ARBTN NO. 510/2017 Page no. 16 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:10 +0530 injunctions granted to the Claimant under these issues, all the above four counter-claims of the Respondent are not tenable, and are hereby rejected. Accordingly, this issue is decided in favour of the Claimant and against the Respondent Issue No. (6) Whether the Claimant is entitled to the reliefs of mandatory injunction and possession. If so, to what effect? OPC (the issue pertains to claim of the claimant) Findings:
The Claimant has sought the reliefs of mandatory injunctions directing (i) the Respondent to transfer the shop in his favour and (ii) to handover the possession of the shop to him. Though both these reliefs are available within the relief of specific performance, but there is no impediment in grant of these reliefs as well. In view of my findings on issue nos. 1, 2 and 3, the Claimant is entitled to seek both these reliefs of mandatory injunctions against the Respondent. The issue is accordingly decided in favour of the Claimant and against the Respondent.
Issue No. (7) Whether the Respondent is entitled to the relief of mandatory injunction. If so, to what effect? OPR (the issue pertains to counter claim of the respondent) Findings:
The Respondent has sought the mandatory injunction restraining the Claimant from interfering in the shop in question. In view of the discussion and findings on above issues in favour of the Claimant, the ARBTN NO. 510/2017 Page no. 17 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:19 +0530 Respondent is not entitled to this relief. The same stands rejected.
Issue No.(8) Whether the Claimant and/or Respondents are entitled of costs on any account? OPR Findings:
Having regard to the nature of the dispute, both the parties are left to bear their own costs. The issue is decided accordingly Issue No.(9) Whether the Respondent is entitled to the recovery of balance rent of Rs. 1,200/- per month allegedly due from 16.09.2004 to 25.10.2014 with 18% interest per annum? OPR (the issue pertains to counter claim of the respondent) Findings:
The Respondent has set up a counter claim of recovery of rent @ Rs. 1200 per month allegedly due from the Claimant from 16.9.2004 to 25.10.2014 with interest at the rate of 18% per annum. The onus of this issue was upon the Respondent. In this regard, it may be stated that this claim was not maintainable, not being the subject matter of the Agreement dated 31st October 2014 and therefore not arbitrable. In any case, this is highly frivolous claim set up by the Respondent. In this regard also, the conduct of the Respondent demonstrates to be not only evasive but, unclear and confused due to oblique intentions. The Respondent at one place in SOD stated that the Claimant was never a tenant in the shop, but was merely an unauthorised occupant prior to 25th October 2014. Then he stated that the Claimant was the tenant @ Rs. 1200 per month and had ARBTN NO. 510/2017 Page no. 18 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:27 +0530 defaulted in payment of rent since the demise of his father in September 2004. In his counter-claim, he stated that the Claimant was erratic in making payment of his rent after the demise of his father. Then he stated that the Claimant was the tenant inducted by his father vide agreement dated 1st July 1977. In the Agreement dated 31st October 2014 (Exhibit CW1/7) also there is a mention of the shop in question being under the tenancy of the Claimant. Same was the stand taken in the rejoinder to the reply of counter claim. Contrary to all this, suggestion was given to the Claimant CW-1 that no Rent Agreement dated 1/7/1977 was executed and the same was fabricated. In his cross-examination again inconsistent question was put that all the tenants including the Claimant had litigation with his father, meaning thereby that the tenancy of the Claimant was admitted. Again, contradictory statement was made by the Respondent in his deposition when he stated that he did not know if the Claimant had taken the shop from his father.
Regarding the payment of rent, Claimant (CW-1) stated having paid the rent to the father of the Respondent till his demise and thereafter to the Respondent, all against receipts. He has filed original rent receipts issued by the father of the Respondent (Exhibit CW1/2/1 to Exhibit CW1/2/29), and by the Respondent (Exhibit CW1/3/1 to Exhibit CW1/3/3). He denied the suggestions that the rent receipts Exhibit CW1/2/1 to Exhibit CW1/2/29 are not signed by the Respondent's father or that these are forged. The receipts Exhibit CW1/3/1 to Exhibit CW1/3/3 issued by the Respondent have not been assailed in the Claimant's cross-examination. It ARBTN NO. 510/2017 Page no. 19 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:35 +0530 is highly unbelievable that no action would have been taken by the Respondent's father or even by the Respondent, if the Claimant was in arrears of rent from September 2004 or after the Respondent became the owner of the suit shop in terms of family settlement. In view of the above discussion, this issue is decided against the Respondent and in favour of the Claimant.
Issue No. (10) Whether the Respondent is entitled to the relief of declaration to the effect that the sum of Rs. 3,45,000/- has been rightfully forfeited by the Respondent? OPR (the issue pertains to counter claim of the respondent) Findings:
In view of my findings on the issue nos. 1, 2, 3, 4, 6 and 7 in favour of the Claimant, the Respondent's claim of forfeiting Rs. 3,45,000/- is not tenable. The same is accordingly rejected. The issue is decided in favour of the Claimant and against the Respondent Issue no. (11) Reliefs.
Findings:
In view of my above findings the Claimant is awarded the following reliefs:
(1) Relief of Specific Performance of the Agreement to Sell dated 31st October 2014. The Respondent will execute the sale deed and deliver vacant peaceful possession of the shop in question to the Claimant within 30 days from today, simultaneously on the Claimant paying the balance ARBTN NO. 510/2017 Page no. 20 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:44 +0530 amount of Rs. 6,55,000/- to the Respondent by way of bank draft in his favour at the time of registration of Sale Deed before the Sub-Registrar. The date of execution and registration of Sale Deed will be communicated by the Claimant to the Respondent along with scanned copy of bank draft. (2) A sum of Rs. 30,000/- per month with effect from 1st June 2015 with interest @18% till the registration of Sale Deed and possession of shop.
The Claimant would be entitled to adjust this amount from the aforesaid balance amount of Rs. 6,55,000/-. In case this awarded amount exceeds the payable balance amount of Rs. 6,55,000/-, the Claimant shall be entitled to get the Sale Deed registered and take possession without making any payment, and shall also be entitled to recover the differential amount from the Respondent with interest till realisation
3) In the event of the Respondent failing to register the sale deed and deliver possession to the Claimant as above, the Claimant would be entitled to seek execution of the relief of Specific Performance as per law.
Accordingly an AWARD granting above reliefs is passed in favour of the Claimant and against the Respondent.
13. From the above mentioned record, it is clear that Ld. Arbitrator had given findings on each and every issue. The Ld. Arbitrator had framed issues qua claim of the claimant as well as qua the counter claim of the respondent and had decided all the issues in detail and with reasons.
Admittedly, the claimant filed the claim and respondent filed the counter claim and after completion of pleadings issues were framed qua each claim of claimant and respondent. Thereafter, joint trial took place ARBTN NO. 510/2017 Page no. 21 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:46:54 +0530 and combined judgment was given qua the claim as well as counter claim. There is no rule that there has to be separate judgment qua the counter claim and it is not the case where the issues pertaining to counter claim have not been decided by the Ld. Arbitrator. Therefore, the arguments of the respondent(petitioner herein ) that Ld. Arbitrator had not given findings on the issues pertaining to counter claim of the respondent is not tenable.
14. Further, from the tone and tenor of the objections taken by the respondent in the petition u/S 34 of Arbitration and Conciliation Act 1996 as well as from the arguments addressed to the Court, it seems as if respondent was arguing the appeal against the impugned award and respondent/petitioner herein wants to have re-appreciation of evidence while this Court in present jurisdiction cannot re-appreciate the evidence nor could look into merits of the case. The Ld. Arbitrator while deciding the issue with respect to payment of Rs. 32 lacs as advanced by the claimant to the respondent as well as the issue with respect to agreement dated 31.10.2014 had clearly concluded that "it stands established that claimant the claimant paid Rs. 32 lacs to the respondent under the said agreement".
15. Scope of interference under Section 34 of Arbitration and Conciliation Act with Arbitrator's award is very limited. The Court would not be justified in reappraising the material on record and substituting its own view in place of the view taken by Arbitrator. Once the Arbitrator has ARBTN NO. 510/2017 Page no. 22 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:47:02 +0530 applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail as held by Hon'ble Supreme Court of India in various cases. Even the judgments relied upon by the respondent/ petitioner himself reiterated the same principle, therefore, Court cannot reevaluate the evidence advanced before Ld. Arbitrator.
16. Further, the objections as to non-disposal of application of respondent/petitioner herein for production of income tax return of claimant etc. and the allegations as to deletion of crucial paragraphs of testimony of CW-3, appear to be an afterthought as surprisingly both the incidents pertain to the proceedings dated 03.12.2016 and the award was passed on 13.10.2017 but in between respondent /petitioner herein had not taken any steps for the redressal of these grievances and respondent waited till the fate of claim and counter claim got decided and once the decision was found unfavourable, respondent took these grounds. It is settled principle that upon final judgment of a matter, all the misc. applications stand dismissed automatically unless specifically pressed upon by the applicant. Therefore, now respondent/petitioner herein cannot challenge the award only on the ground that his application was not decided by the Ld. Arbitrator during arbitration proceedings.
17. Further, perusal of record shows that during final arguments before Ld. Arbitrator, the respondent had filed written arguments and all the material objections, (like financial capacity of the claimant, contradictions ARBTN NO. 510/2017 Page no. 23 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:47:11 +0530 in the statements of witnesses, improbable averments of the claimant, non-existent of previous agreement to sell dated 03.08.2011 etc.) taken in the present petition filed u/S 34 of Arbitration and Conciliation Act with respect to merits of the case, had already been addressed before Ld. Arbitrator and some of the objections taken here are almost identical to the objections taken before Ld. Arbitrator, which is not permissible, being out of purview of Section 34 of Arbitration and Conciliation Act.
18. Further, from perusal of impugned award shows that there is no patent defect in the award, so apparent as to say that award is biased or perverse. There is nothing on record to show that Ld. Arbitrator has relied upon any document which was not filed on record and it is only the interpretation given by Ld. Arbitrator which has been disputed by the respondent/petitioner herein, however, as per the judgments relied upon by the respondent/petitioner herein, the Ld. Arbitrator is master of his case and this Court in its capacity Section 34 of Arbitration and Conciliation Act does not sit in appeal over the arbitral award. Therefore, in the opinion of this Court, there is no patent illegality in the award or any such gross error of facts or law making it against the public policy of India.
CONCLUSION
19. Accordingly, the present petition Section 34 of Arbitration and Conciliation Act as pressed into service by the petitioner is therefore not sustainable within the scope and ambit of the provision, therefore, liable ARBTN NO. 510/2017 Page no. 24 of 25 Dated 11.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.12 21:47:24 +0530 to be dismissed and accordingly dismissed and disposed of.
File be consigned to record room after necessary compliance.
Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.07.12 21:47:34 +0530 Typed to the direct dictation and (Prabh Deep Kaur) announced in the open court DJ-05, South East District on this 11th July 2024 Saket Courts, New Delhi ARBTN NO. 510/2017 Page no. 25 of 25 Dated 11.07.2024