SADBUDDHI BRAHMESH WAGH Vs. SATIESH RAGHVENDRA WAGH

JUDGEMENT

(1.) THIS appeal is directed against the order dated 1 6/10/1997 whereby the learned Single Judge dismissed the arbitration petition filed by the appellants herein under sections 30 and 33 of the Arbitration Act, 1940 for setting aside the Award dated 16/06/1997.

(2.) THE controversy arises from the facts and circumstances that we briefly narrate first. One Vinayakrao Vyankatesh Wagh was allotted a plot of land being No. 35, situate at 60, Saraswati Baug, Jogeshwari (East), Bombay. He held 5 shares in Karnara Goud Saraswat Co-operative Housing Society Ltd. (for short the society ). Vinayakrao died on 11-11-1958 leaving behind his legal heirs viz. Brahmesh, Venkatesh, Raghvendra, Mangala, Mahabaleshwar bind Radhika. After his death, the said plot was transferred in the name of legal heirs of Vinayakrao in the revenue record. By writing dated 1-12-1976. Raghvendra, one of the legal heirs of Vinayakrao addressed to the Chairman of the society requested for transfer of shares in his favour. The said writing at its foot had the signatures of other heirs of deceased Vinayakrao purporting to be waiving their rights in respect of those shares and property. The society acted on the said writing and on 15-4-1976 effected transfer of the said shares in favour of Raghvendra. By letter dated 12-8-1981 written by raghvendra to his brother Brahmesh, he wanted to know from him and other legal heirs of Vinayakrao, whether by the writing dated 1-2-1976 they gifted away the property to him (Raghvendra) or they wanted part of sale proceeds. Raghvendra is said to have constructed building on the said plot in the year 1981 and transferred some of the flats in the said building in the year 1983 and 1984. A suit was filed on 5-4-1984 by Brahmesh and Vyankatesh against raghvendra and other legal heirs of deceased Vinayakrao and the society seeking declaration that the writing dated 1-2-1976 (annexed as Exhibit "b" to the plaint) be declared void; that the defendants have no right to act upon the said writing that the decision of the society dated 15-4-1976 effecting transfer of shares in favour of Raghvendra be declared illegal and without jurisdiction and that the plaintiff and original defendants 1 to 6 have equal share in the said property left by deceased Vinayakrao. Later on the suit was amended and the flat purchases were impleaded as defendants 9 to 14. As against newly added defendants 9 to 14, prayer was made that they be directed to quit from the flats and hand over quiet and vacant possession to the plaintiffs and original defendants 1 to 4. It appears that in the suit, on ad interim order came to be passed restraining Raghvendra from transferring, alienating or creating any third party right or interest in the suit property including construction put up thereon. The said ad interim order was later on confirmed to remain operative until disposal of the suit. Later on the original plaintiffs and defendants 1 to 6 decided to have their dispute concerning writing dated 1-2-1976 referred to arbitrator for adjudication and, accordingly, Consent Terms were filed for and on behalf of plaintiffs and defendants 1 to 6 on 15-3-1991 in the pending suit. The learned Judge on 15-3-1991 took the Consent Terms on record and passed an order in terms of the Consent Terms and referred the dispute between these parties to arbitration in terms of Consent Terms. The arbitrator Shri S. H. Doctor entered into reference and passed an Award on 16-6-1997. The Arbitrator held that the writing dated 1-2-1976 (Exh. B annexed to the plaint) was valid and binding on plaintiff No. 2, legal heirs of original plaintiff No. 1, original defendant Nos. 1 and 2 to 6 and that the said writing was not liable to be cancelled or rescinded. The arbitrator also declared that original defendant No. 1-Raghvendra and after his death, his legal heirs were entitled to the suit property more or particularly described in Exhibit A to the plaint and the building constructed thereon and that none of the other parties to the arbitration were entitled to any right, title or interest therein of any nature whatsoever. Dissatisfied with the Award passed by the arbitrator on 16-6-1997, the arbitration petition came to be filed by the legal heirs of original plaintiff No. 1 and plaintiff No. 2. The arbitration petition was purportedly filed under sections 30 and 33 of the Arbitration Act, 1940 for setting aside the Award dated 16-6-1997. The learned Single Judge summarily dismissed the arbitration petition by his order dated 16-10-1997. Upon dismissal of the arbitration petition, the learned Judge made the Award rule of the Court and passed the decree in terms of the Award. Aggrieved thereby, the present appeal has been filed.

(3.) WE heard Dr. Virendra V. Tulzapurkar, the learned Senior Counsel for the appellants at quite some length and Ms. Bina R. Pai, the learned Counsel for the respondents.