Bombay High Court
Vasantben Ramniklal Bhuta vs Ivory Properties And Hotels Pvt. Ltd. ... on 2 March, 2020
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
6-carbp-350.17.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION NO. 350 OF 2017
Bhanumati Jaisukhbhai Bhuta ... Petitioner
V/s.
Ivory Properties & Hotels Private Limited and Anr. ...Respondents
WITH
COMMERCIAL ARBITRATION PETITION NO. 812 OF 2019
Vasantben Ramniklal Bhuta ... Petitioner
V/s.
Ivory Properties & Hotels Private Limited and Anr. ...Respondents
Mr.Rubin Vakil with Ms.Nupur Desai i/by M/s. Markand Gandhi and
Co. for the Petitioner in CARBP No.350 of 2017 and for the
Respondent No.2 in CARBP No.812 of 2019.
Mr.Aditya Udeshi along with Mr.Netaji Gawade i/by M/s. Sanjay
Udeshi & Co. for the Respondent No.2 in both the Arbitration
Petitions.
Mr.Yash Kapadia with Ms.Samidha Vedpathak i/by M/s. Maneksha &
Sethna for the Respondent No.1 in both theArbitration Petitions.
CORAM : R.D. DHANUKA, J.
DATE : 2ND MARCH, 2020.
P.C. :-
1. The matters are placed on board for speaking to the minutes of the common judgment dated 28th January, 2020 on the praecipe filed by the learned advocate for the petitioner in ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 ::: 6-carbp-350.17.doc Commercial Arbitration Petition No. 350 of 2017 and respondent no.2 in Commercial Arbitration Petition No. 802 of 2019.
2. In paragraphs 2, 6, 10, 13, 14, 23, 24, 27, 32, 33, 37, 38, 43, 46, 47, 49, 50, 57, 59, 60, 64, 68, 71, 77, 82, 84, 85, 87, 97, 115, 118, 128, 130, 131, 135, 136, 143, 148, 163 and 179 certain inadvertent errors are pointed out in the praecipe filed by the learned advocate for the petitioner in Commercial Arbitration Petition No. 350 of 2017 and respondent no.2 in Commercial Arbitration Petition No. 802 of 2019. Mr.Kapadia, learned counsel appearing for the respondent no.1 in both the Arbitration Petitions has no objection to the corrections carried out, as suggested by the petitioner in Commercial Arbitration Petition No. 350 of 2017 and respondent no.2 in Commercial Arbitration Petition No. 812 of 2019. Statement is accepted.
3. After carrying out those corrections, those paragraphs read as under : -
"2. The Petitioner in the Commercial Arbitration Petition No. 350 of 2017 was the original Respondent No. 2, whereas the Petitioner in Commercial Arbitration Petition No. 812 of 2019 was the original Respondent No. 1 in the arbitration proceedings. 2 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 :::
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6. On 19th April, 1995, the parties also executed a Memorandum of understanding.
10. It was agreed that all disputes or differences between the parties shall be referred to the arbitration of Shri. Dilip Thakkar of Jayantilal Thakkar and company, Chartered Accountants.
13. On 17th January, 2005, the learned arbitrator directed the respondent no.1 to file its statement of claim along with all the documents within four weeks from 17th January, 2005 and directed the petitioner and the respondent no.2 to file statement of defence/written statement and counter claim, if any along with all documents within four weeks from the date of receipt of statement of claim from the respondent no.1. Though, the learned arbitrator had directed the respondent no.1 to file statement of claim along with all documents within four weeks from 17th January, 2005, it is the case of the petitioner a0nd the respondent no.2 that the respondent no.1 did not file statement of claim for quite some time. The petitioner and the respondent no.2 through their advocate's letter dated 4th April, 2006 addressed to the learned arbitrator requested the learned arbitrator to terminate the arbitration proceedings under Section 25(a) of the Arbitration Act.
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14. The petitioner and the respondent no.2 through their advocate's letter dated 19th January, 2008 denied those allegations made by the respondent no. 1 and informed that the contractor of Mumbai Metro One Private Limited was constructing the Metro Rail, without their permission and knowledge and stocked material on the suit property, which was already removed on objection taken by the petitioner and the respondent no.2.
23. The petitioner accordingly filed an application dated 31st October, 2014 to amend the written statement dated 15th October, 2010.
24. Being aggrieved by the said arbitral award dated 14th February, 2017 passed by the learned arbitrator, the petitioner and the respondent no.2 have filed two separate Commercial Arbitration Petitioners bearing Nos. 350 of 2017 and 812 of 2019 respectively.
27. He submits that the entire dispute raised by the respondent no.1 arising under the said alleged Supplemental Agreement by invoking arbitration clause under Clause 33 of the Development Agreement was thus without jurisdiction. 4 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 :::
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32. The respondent no.1 did not produce any proof of delivery of the said draft modified terms before the learned arbitrator though Respondent No. 1 had examined Mr. G. G. Kukreja as its witness.
33. He invited my attention to the allegations made in unamended paragraph 32 of the statement of claim and would submit that the respondent no.1 had pleaded its readiness and willingness to perform their part of the obligation only in respect of the alleged Supplemental Agreement and not the Development Agreement and the Memorandum of Understanding.
37. Learned Senior Counsel invited my attention to the order passed by the learned arbitrator on 23 rd July, 2012 rejecting the application filed by the petitioner and the respondent no.2 under Section 16 of the Arbitration Act and would submit that no evidence was led by the parties when the said order was passed by the learned arbitrator on 23rd July, 2012 under Section 16 of the Arbitration Act. The petitioner and the respondent no 2 had specifically averred in the written statement that the said alleged notice dated 14th February, 2002 addressed by the respondent no. 1 to the petitioner was not even served upon the petitioner and the respondent no. 2.
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38. The respondent no.1 in its statement of claim had not referred to Development Agreement and had not even pleaded that it was an inadvertent error on the part of the respondent no.1 in not referring to the Development Agreement in the original statement of claim.
43. He submits that the finding in paragraph 15(c) of the said arbitral award that the petitioner and the respondent no.2 herein in their affidavit dated 14th March, 2013, had recognized the notice of invocation of Arbitration Agreement dated 14th February, 2002, which has reference to the draft Supplemental Agreement as an enclosure is totally perverse.
46. Learned Senior Counsel invited my attention to the affidavit in lieu of examination-in-chief filed by the husband of the Petitioner Mr. Jaisukhbhai Bhuta dated 24th March, 2015 and in particular, deposition in paragraphs 20 to 24 of the said affidavit of evidence that the petitioner as well as the respondent no.2 neither had agreed to the alleged terms of the alleged Supplemental Agreement nor agreed to the execution of the said alleged Supplemental Agreement with the respondent no.1.
47. It is submitted that Mr. G. G. Kukreja had never 6 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 ::: 6-carbp-350.17.doc approached the said witness or to the husband of Respondent No. 2 in relation to the respondent no.1 for discussing the matter.......
49. None of the Directors or the persons who were concerned with the said project and had personal knowledge were examined by the respondent no.1 as witnesses.
50. Learned Senior Counsel invited my attention to the Affidavit dated 3rd October, 1998 filed by Mr. Neel C. Raheja the Constituted Attorney to the petitioner and the respondent no.2 addressed to the Commissioner of Mumbai Municipal Corporation.
57. He submits that the finding of the learned arbitrator that the Agreement did not stand frustrated and it was not impossible or unlawful to carry it out and contrary to Section 56 of the Indian Contract Act, 1872, even though there was change in policy is ex- facie perverse.
59. Learned Senior Counsel invited my attention to the cross- examination of the husband of the Petitioner by the learned Senior Counsel for the Respondent No. 1 and more particularly to question nos. 72 and 73.
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60. The respondent no.1 did not produce any evidence to show that there was any consultation between the petitioner and the respondent no.2 on one hand and the respondent no.1 on the other hand before the commencement of any differences or dispute between the parties.
64. Under the said agreement dated 19th April, 1995, construction was to be completed within 36 months, which expired on 19th April, 1998 before change of the policy framed by the Municipal Corporation whereby extension was not permissible.
68. He also invited my attention to the deposition of witness of his client and more particularly in paragraph 22 to 24 of the affidavit of evidence disputing the alleged Supplemental Agreement and also to the cross-examination of the said witness recorded in questions 92 and 153.
71. He submits that the claim for refund could not be granted as the same was ex-facie barred by law of limitation.
77. He submits that the petitioner and respondent no.2 had already executed the Powers of Attorney in favour of his client. 8 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 :::
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82. The powers of attorney executed in favour of the respondent no.1 by the petitioner and respondent no.2 are still valid.
84. The learned arbitrator has appreciated the evidence led by both the parties and has rightly held that the contractual relationship between the parties was valid and subsisting.
85. It is submitted by the learned Senior Counsel that the learned arbitrator has rightly rendered a finding in the impugned award that the Powers of Attorney executed by the petitioner and respondent no.2 in favour of the respondent no.1 were still valid and not cancelled or revoked by the petitioner and respondent no.2.
87. It is submitted that the Development Agreement and the Memorandum of Understanding was not given a go-by by the parties but were continued to be in force and were to be read with Supplemental Agreement.
97. There was no readiness and willingness on the part of the respondent no.1 to perform its part of obligation under the said Development Agreement and Memorandum of Understanding.
115. The terms were allegedly agreed to and the respondent 9 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 ::: 6-carbp-350.17.doc no.1 prepared a document titled the Supplemental Agreement recording the terms duly agreed. It was further alleged in the Statement of Claim that the respondent no.1 prepared the draft Supplemental Agreement and furnished the same to the petitioner and the respondent no.2 after numerous meetings and telephonic conversations. In or about November 2000, the petitioner and the respondent no.2 and their respective husbands informed Mr. G. G. Kukreja, representative of the respondent no.1 that the petitioner and the respondent no.2 would sign the Supplemental Agreement in terms of the draft allegedly sent to them.
118. A perusal of the written statement filed by the petitioner and the respondent no.2 dated 15th October, 2010 clearly indicated that the existence of the said alleged Supplemental Agreement was denied by the petitioner and the Respondent no.2.
128. The said oral agreement was allegedly between the husbands of the Petitioner and Respondent No. 2 on one hand and the witness of the respondent no. 1 on the other side on behalf of the respondent no1.
130. On behalf of the Petitioner and Respondent No. 2, husband of Petitioner Mr. Jaisukhbhai Bhuta filed his affidavit in lieu 10 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 ::: 6-carbp-350.17.doc of examination-in-chief dated 24th March, 2015. In paragraphs 20 to 24 of the said affidavit of evidence, he deposed that neither the petitioner nor the respondent no. 2 had agreed to the alleged terms of the Supplemental Agreement nor agreed to execute any such agreement with the respondent no.1. Mr. G. G. Kukreja had never approached the said witness or husband of the Respondent No. 2 in relation to or discussing the matter about execution of the alleged Supplemental Agreement or for modifying the terms and conditions of the Development Agreement as well as Memorandum of Understanding.
131. In the order passed by the learned arbitrator on the application under section 16 of the Arbitration Act filed by the petitioner and the Respondent no.2, the learned arbitrator held that the arbitration agreement as contained in paragraph (33) of the agreement dated 19th April, 1995 was signed by both the parties and thus the same was valid arbitration agreement.....
Insofar as alleged Supplemental Agreement is concerned, the learned arbitrator held in the said order that since the parties were aware of the existence of the Supplemental Agreement which was allegedly supplemental to the agreement dated 19th April,1995 and which was in writing but not signed, is valid in view of sufficient judgments of various courts relied upon during the proceedings 11 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 ::: 6-carbp-350.17.doc before him.
135. The finding recorded by the learned arbitrator that the petitioner and the respondent no.2 have not denied the said letter dated 14th February 2002 and the alleged Supplemental Agreement is inconsistent with paragraph 8(e) of the impugned award.
136. Though a specific plea was raised by the petitioner and the respondent no.2 in the written statement denying the existence and contents of the said notice dated 14th February 2002 and also the alleged Supplemental Agreement, the witness examined by the Respondent no.1 did not prove the service of the said notice dated 14th February 2002 or the said alleged Supplemental Agreement.
143. There is no merit in the submission of the learned senior counsel for the respondent no.1 that in the facts and circumstances of this case, this Court cannot go beyond the sufficiency of the evidence.
148. The onus was thus on the Respondent No.1 was was alleged to have issued such notice on 14 th February, 2002 to prove that such notice in respect of such dispute referred in the said notice was received by the petitioner and the respondent no.2. 12 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 :::
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163. Learned arbitrator has not recorded the reason as to why, according to the learned arbitrator, claims made by the respondent no.1 were not barred by law of limitation.
179. In my view, the said judgment would not even remotely apply to the facts of this case."
4. The common judgment dated 28th January, 2020 stands corrected accordingly. The praecipe is disposed off.
(R.D. DHANUKA, J.) 13 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 07/06/2020 04:08:44 :::