S.K. MAHAJAN Vs. B. SUBHASHCHANDRA SHETTY

JUDGEMENT

(1.) THE petitioners have filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') assailing therein an Award dated 11.12.2007 passed by the learned Arbitrator. Though no caveat was filed by the respondents, however they were present on the first date of hearing. Counsel for the respondents sought leave to rely on the written submissions filed by them, without filing a detailed reply to the petition, which was granted. The core issue revolves around the Extraordinary General Meeting (EOGM) of the Indian Dental Association, respondent No. 3, held on 5.9.2004. It is the case of the respondents that in the aforesaid meeting held on 5.9.2004, the constitution of the Indian Dental Association (hereinafter referred to as the Association') was approved and the minutes of the meeting and the resolutions passed were subsequently confirmed in the meeting of the Central Council of the Association held on 30/31.10.2004. One of the fallouts of the amendments to the constitution was that the subscription of members of the Association was increased. Aggrieved by the aforesaid Resolution passed in the EOGM held on 5.9.2004 and confirmed in the meeting of the Central Council on 30.10.2004, the petitioners filed a suit in this Court, being CS(OS) No. 1406/2004, praying inter alia for amongst others, a decree of declaration against the defendants therein that the minutes and the proceedings of the EOGM and the meeting of the Central Council were illegal and unconstitutional. On 10.12.2005, while issuing summons in the suit to the defendants, an exparte interim order was passed on the interim application filed, by the petitioners to the effect that the defendants were restrained from giving effect to the meeting dated 5.9.2004, and the Registrar of Firms and Societies, defendant No. 1 therein, was directed not to act on a letter issued by the defendant No. 3, respondent No. 2 herein, till further orders.

(2.) IN the aforesaid proceedings, the defendants No. 2, 3 & 4 therein (respondents No. 1,2 & 3 herein) filed an application under Order VII Rule 11 of the Code of Civil Procedure praying inter alia for rejection of the suit on the ground that the same did not disclose any cause of action. Vide order dated 21.11.2005, the said application was dismissed. Aggrieved by the said dismissal, two appeals were preferred by the defendants No. 2, 3 & 4 before the Division Bench, being FAO(OS) Nos. 411 & 412/2005. The Division Bench disposed of the appeals on 19.12.2006 while referring the disputes interse the parties to arbitration, which arbitration proceedings have culminated in passing of the impugned Award dated 11.12.2007. After hearing the parties, the learned Arbitrator arrived at the conclusion that the petitioners were not entitled to any relief and accordingly, a no relief Award was passed. Aggrieved by the said award, the petitioners have filed the present petition.

(3.) COUNSEL for the petitioners contended that the learned Arbitrator had misdirected and misconducted himself in not appreciating the fact that the alleged minutes of the EOGM dated 5.9.2004, initially sent to the Registrar of Firms & Societies and those in the audio disk filed by the respondents No. 2 and 3 on 11.9.2007 are in conflict with each other. Much emphasis was laid on the fact that by way of repeated orders, the respondents were directed by the learned Arbitrator to file the minutes of the EOGM held on 5.9.2004 at Mumbai, but the said order was not complied with till as late as at the stage of arguments before the learned Arbitrator and finally, the respondents filed copies of the minutes which were on a rough notebook and recorded in an audio CD. The aforesaid position was recorded by the learned Arbitrator in the proceedings held on 25.8.2007 and while taking on record the notes of the EOGM and the audio CD containing the minutes of the meeting, the statement of respondent No. 2, Secretary General of the Association was also recorded.