TAHERBHAI ABDULLABHAI Vs. MOHAMMED HUSSAIN ABDULLABHAI

JUDGEMENT

(1.) ALL these petitions have been filed under section 34 of the Arbitration and Conciliation Act challenging the consent awards passed by the learned arbitrator. It is common ground before me that all these petitions can be conveniently disposed of by a common order.

(2.) PETITION No. 353 of 2002 has been filed by one Taherbhai Abdullabhai. The same petitioner has filed Arbitration Petition No. 354 of 2002. Arbitration petition No. 332 of 2002 has been filed by Shabbirbhai Abdullabhai. The same petitioner has filed Arbitration Petition No. 333 of 2002.

(3.) THE facts that are material and relevant for deciding these four petition as are, that one Abdullabhai Fidaali Kagalawala owned several properties. After his death, disputes arose between his heirs. Disputes between the heirs regarding their respective rights in the properties left behind by Abdullabhai were referred to the sole arbitrator by an order made by this Court. The petitioners in the present petitions are also heirs of the deceased Abdullabhai. It appears that after the hearing commenced before the learned Arbitrator, the parties decided to hold negotiations for amicable settlement. After negotiations between the parties, the parties filed consent terms in respect of the reference which is related to the properties of the firm Abdullabhai Fidaali and co. and the learned arbitrator also made the consent award on 26th April, 2001. The parties also reached a settlement in respect of the reference relating to that properties of Abdullabhai Fidaali and Co. and Abdullabhai Fidaali sons and the arbitrator made a consent Award on 5th April, 2002 on the basis of those consent terms. After the aforesaid two consent terms were filed and the consent awards were made. Now the disputes between the parties remained relating to two references, (i) in relation to the joint family property and (ii) five rooms in Fidaali Building. It appears that in relation to these properties also parties continued to have talks for settlement. The parties also submitted before the learned arbitrator some charts duly signed by the parties indicating the shares of the parties in the properties. Those chars were taken on record by the learned arbitrator. It appears that some consent terms were also arrived at. But the consent terms were not signed on 6th September, 2001, because payment that was required to be made was not made. Thereafter, negotiations between the parties continued, but as the parties could not reach the settlement, the learned arbitrator on 7th September, 2001 framed points for determination in relation to the properties with respect to which no settlement was reached between the parties. On 7th September, 2001, the learned arbitrator stated in the minutes that the parties have agreed to file consent terms in respect of properties, save and except five properties in relation to which points for determination have been framed and the matter was adjourned to 11th September, 2001, it further appears that shri Ghanekar, Counsel for the petitioner Taherbhai drafted the consent terms and that draft was forwarded on 9-1-2002 to the other shares. On 30th March, 2001, Taherbhai Group through their advocate Shri Ghanekar stated before he learned Arbitrator that the settlement in the consent terms is not acceptable to the Taherbhai group. Similar statement was made on behalf of another petitioner Shabbirbhai. In this situation, it appears the parties continued to hold negotiations, but they failed to come to any settlement. It appears that at the request of the parties, then the learned Arbitrator decided to hear the parties to find out whether there was any settlement between the parties. The learned Arbitrator, thereafter, heard the parties and came to the conclusion that there was a settlement reached between the parties and on the basis of that finding the learned Arbitrator proceeded to pass the award in term of the consent terms which are marked as Annexure "3". The learned Arbitrator also considered the dispute between the parties in relation to five properties with regard to which there was no settlement and the learned Arbitrator also made the award in relation to those properties, However, in so far as the present petitioners are concerned, what has been challenged by the petitioners is only the consent award made by the learned Arbitrator in Arbitration petition No. 353 of 2002 and Arbitration Petition No. 332 of 2002. In Arbitration Petition No. 333 of 2002 , consent award made in terms of Annexure to the award made in that case challenged.