Bombay High Court
Jayantrao S/O Marotirao Dhanwatay vs Smt. Sumatidevi Wd/O Marotirao ... on 24 August, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
1 2008AA06.18.odt
FARAD CONTINUATION SHEET
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
APPELLATE SIDE,
NAGPUR BENCH, NAGPUR.
ARBITRATION APPEAL NO.06 OF 2018
JAYANTRAO S/O MAROTIRAO DHANWATAY
VS
SMT. SUMATIDEVI WD/O MAROTIRAO DHANWATAY AND OTHERS
Office Notes, Office Memorandum of Court's or Judges Order
Coram appearances, Court's orders or
directions & Registrar's orders.
Shri H. V. Thakur, Advocate for the appellant.
Smt. J. D. Dharmadhikari, Advocate for the respondent No.1
Shri S. S. Sharma, Advocate for the respondent Nos.2 to 4.
C ORAM: A.S. CHANDURKAR J.
DATED : 20TH
AUGUST, 2018.
1. This appeal has been filed under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 (for short, the said Act) challenging the judgment dated 7-12-2017 passed by the learned Principal District Judge, Nagpur in proceedings under Section 9 of the said Act. By the impugned order that application has been partly allowed and the appellant has been permitted to use a room on the south west corner of the ground floor of the premises in question. Being aggrieved by the limited relief as granted, this appeal has been filed. In view of notice for final disposal issued earlier, the learned Counsel for the parties have been heard at length.
2. The facts in brief are that the respondent No.1 is the widow of one Marotirao Dhanwate and the appellant as well as the respondent ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:51 ::: 2 2008AA06.18.odt No.2 are their sons. Said Marotirao Dhanwate expired on 11-12-1995. The dispute relates to house property standing on Nazul Plot Nos.61 and 62 at Ramdaspeth Nagpur. It is the case of the appellant that in arbitration proceedings an award dated 5-4-2015 for partition of the suit property was passed by the Sole Arbitrator. In that award, it was held that the appellant herein would be entitled to 37.5% share in the property in question while the respondent No.2 would be entitled to 62.5% share in the said property. That award has been challenged in proceedings under Section 34 of the said Act and the same are pending. It is the case of the appellant that initially Regular Civil Suit No.1950/1994 had been filed by late Marotirao Dhanwate along with the present appellant for a declaration that the plaintiffs were entitled to retain possession of the entire ground floor of the said property. An order of status quo had been passed by the trial Court which continued to operate. Despite that order, the respondent No.1 executed gift deed on 17-1-2004 transferring her share in favour of the respondent Nos.2 to 5. This gift deed was invalid according to the appellant. Subsequently, all proceedings were transferred for being resolved by the Arbitrator. Before the Arbitrator an application under Section 17 of the said Act was filed seeking interim mandatory injunction and that application was partly allowed on 30-9-2012. In the meanwhile, during pendency of proceedings for challenging that order in appeals filed by both parties, final award came to be passed by the Hon'ble Arbitrator. The said appeals were therefore disposed of as infructuous. In the aforesaid backdrop, the appellant filed an application under Section 9 of ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:51 ::: 3 2008AA06.18.odt the said Act praying therein that the appellant be permitted to use the entire ground floor premises of the said property alongwith one room on the first floor as the same was agreed to by the respondent No.2 in his letter dated 14-5-2012. During pendency of those proceedings, a Court Commissioner was appointed to partition the suit property. However, the Court Commissioner submitted his report that it would only be feasible to sell the entire property after which the proceeds could be divided proportionately amongst the parties. Thereafter, the application that was filed under Section 9 of the said Act was partly allowed by the impugned order. Hence, this appeal.
3. Shri H. V. Thakur, learned Counsel for the appellant submitted that in the light of the fact that the appellant was held entitled to have share to the extent of 37.5% in the suit property as per award dated 5-4-2015, he was entitled to mandatory injunction permitting user of the entire ground floor portion as well as one room on the first floor of the said property. Grant of such mandatory injunction would be in accordance with the share granted to the appellant. Though the appellant had challenged the aforesaid award by filing an appeal, the same was for enhancement of his share and there was no possibility of the share granted by the learned Arbitrator being reduced. It was submitted that while partly allowing the application filed under Section 9 of the said Act, the appellant has not been granted exclusive possession and relief has been granted to the appellant in terms of the arrangement that was made by the learned Arbitrator in proceedings under Section 17 of the said Act. Once ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:51 ::: 4 2008AA06.18.odt the award was passed by the learned Arbitrator the directions issued under Section 17 of the said Act would lose their significance as the appellant's right stood crystallized by passing of the award. Referring to the provisions of Section 9(1)(d) of the said Act, it was submitted that the present was an appropriate case for grant of the relief as prayed for in the application and the trial Court erred in partly allowing that application without granting exclusive possession to the appellant. It further submitted that the appellant's right to reside in the property ought to be considered in the proper perspective and the partial relief as granted under the impugned order did not result in effective right of residence to the appellant. Placing reliance on the decision in Ultratech Cement Limited vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited 2017 (2) SCALE 96, it was submitted that the appellant was entitled for relief notwithstanding the fact that the award was challenged in an appeal.
4. Smt. J. D. Dharmadhikari, learned Counsel for the respondent No.1 opposed aforesaid submissions. It was submitted that as the appeal challenging the award was pending, the award as passed was not executable. The appellant was seeking relief under Section 9 of the said Act which in fact, was an attempt to execute that award. As it was found by the Court Commissioner that no partition could be effected in the said property there was no legal basis to seek any interim direction.
Shri S. S. Sharma, learned Counsel for the respondent Nos.2 to 5 opposed aforesaid appeal. It was submitted that the application as filed was not maintainable and the provisions of Section 9(1)(d) of the ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:51 ::: 5 2008AA06.18.odt said Act were not attracted. The shares that were granted by the learned Arbitrator were subject to variation in the proceedings under Section 34 of the said Act. With the filing of the appeal under Section 34 of the said Act, the award was not executable. In that situation, recourse to provisions of Section 9 of the said Act was also not permissible as it was an attempt to execute the award. The learned Counsel further urged that the appeals that were filed challenging the order dated 30-9-2012 had been dismissed and therefore, similar reliefs could not be sought in the present proceedings. In that regard, the learned Counsel placed reliance on the decision in Barkat Ali and another vs. Badrinarain (2008) 4 SCC 615. It was thus submitted that no interference was called for with the impugned order.
In reply, the learned Counsel for the appellant referred to the decision in Board of Control for Cricket in India vs. Kochi Criket Private Limited and others (2018) 6 SCC 287 to urge that pendency of the appeal challenging the award would not preclude consideration of the present application. In the light of the award as passed the appellant was entitled for effective relief.
5. I have heard the learned Counsel for the parties at length and with their assistance, I have gone through the documents filed on record. It is not in dispute that initially suit for declaration and perpetual injunction had been filed amongst the family members after which the proceedings were referred to the learned Arbitrator. During pendency of those proceedings, the learned Arbitrator passed an order dated 30-9-2012 under Section 17 of the said Act directing interim measures to be followed ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:51 ::: 6 2008AA06.18.odt during pendency of the proceedings. The appellant was permitted use of the room on the south-west corner of the ground floor whenever he chose to reside in Nagpur. The room was however to remain unlocked when he was not in Nagpur. This order was challenged by both the sides by filing the appeals, but those appeals were not adjudicated on merits in view of the fact that final award was passed on 5-4-2015. By that award, the appellant was held entitled to a share to the extent of 37.5% in the house property while the respondent No.2 was held entitled to 67.5% share therein. An appeal under Section 34 of the said Act at the instance of the appellant is still pending.
6. In the application that has been filed by the appellant under Section 9 of the said Act, mandatory injunction has been sought so as to permit the appellant to use and occupy the entire ground floor portion and one room on the first floor of the said building. The learned Principal District Judge while partly allowing that application has referred to the earlier order dated 30-9-2012 that was passed under Section 17 of the said Act and has granted relief on those lines.
7. Under provisions of Section 9(1) of the said Act, a party can apply to the Court for grant of interim injunction even after the award is made but before it is enforced under Section 36 of the said Act. As noted above under the award the appellant has been granted share to the extent of 37.5% in the house property. As per the report of the Court Commissioner dated 16-1-2017, the Commissioner has not found it feasible and expedient to partition the said property and has instead ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:52 ::: 7 2008AA06.18.odt proposed its sale so as to distribute proceeds proportionately. Though it is the case of the appellant that he is entitled to exclusive possession of residence on the entire ground floor as well as one room on the first floor in terms of award, it is found that in the application filed under Section 9 of the said Act, a case of comparative hardship and irreparable loss has not been made out. The considerations while granting relief under Section 17 of the said Act to the appellant in the manner in which the same were granted were that though the appellant was residing at Mumbai, he was required to visit Nagpur intermittently. It was found that there was no justification to grant exclusive possession to the appellant of the said portion of the house property even when the appellant was not at Nagpur. In the application under Section 9 of the said Act, it has not been pleaded that despite the aforesaid arrangement in terms of order dated 30-9-2012 the appellant was unable to enjoy the fruits of that order. It has not been pleaded that the appellant after that order resided in the portion to which he was held entitled and that despite such relief to him, hardship was being caused. In fact, there is no material on record to indicate the number of visits by him to Nagpur after order dated 30-9-2012 was passed.
8. The entire basis of the appellant of seeking interim injunction is the award that has been passed by the learned Arbitrator on 5-4-2015. As noted above, that award has been subjected to further appeal and hence, it has not been put to execution. In the light of the averments made in the application, I do not find that the learned Principal District Judge committed any error in placing reliance on the order passed under ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:52 ::: 8 2008AA06.18.odt Section 17 of the said Act and thereafter granting similar relief in the proceedings under Section 9 of the said Act. The only change in circumstance was the passing of the final award. The finding recorded by the trial Court as to absence of a case indicating irreparable loss and comparative grater hardship not being made out is based on the material available on record. I do not find that the discretion as exercised by the learned Principal District Judge while passing the impugned order and partly allowing the application moved by the applicant has resulted in any error being committed warranting interference under Section 37(1)(b) of the said Act.
9. In view of aforesaid, there is no case made out to interfere with the impugned judgment. The appeal therefore, stands dismissed with no order as to costs.
JUDGE /Muley/ ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:37:52 :::