MILIND R KHANOLKAR Vs. PETER A D SOUZA

JUDGEMENT

(1.) THE petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act) and thereby challenged the Award dated 20th October, 2005/29th November, 2008. The facts as recorded are as under :-

(2.) AS alleged, the petitioner is the citizen of India and a partner of M/s.Shilpa Builders a partnership firm being Respondent No.3 herein. Respondent No.2 is an Indian Inhabitant and is also a partner of M/s.Shilpa Builders being Respondent No.3 herein. Respondent No.1 is not known to the petitioner and not seen by the petitioner. Respondent No.1, however, claims to have obtained an Award against the Petitioner and Respondent No.3 being Award dated 20th October, 2005/29th November, 2008 which is challenged in the present Petition.

(3.) THIS is a peculiar matter whereby after hearing both the parties in Chamber Summons No.13 of 2009 the learned Single Judge (Dr. Justice D. Y. Chandrachud) has passed the following Order. _ 11. The facts that have come before the Court demonstrate that an arbitral award allegedly of 2005 is sought to be set up much after a registered deed of conveyance was executed in favour of the co-operative society on 24th March, 2006. The alleged arbitral award was sought to be set up not at the first available opportunity when the Advocate for Shilpa Builders addressed a letter dated 16th July, 2008. It is in a letter dated 03rd August, 2008 that reference to the arbitral award is to be found. Then again, there is an ambiguous statement that the award came to be passed somewhere in 2005 or so. The arbitral award purports to have been made on 20th October, 2005 and it has been submitted that the award has been ante dated to a date prior to the execution of the registered deed of conveyance in favour of the society. As already noted above, the ante dating is obvious because the stamp paper on which the award is made is dated 29th November, 2008. An alleged agreement of 23rd October, 1981 is the basis and foundation of the award. No arbitration agreement or minutes of meetings before the arbitrator are forthcoming. Evidently, limitation was not even set up as a defense though the alleged arbitral proceedings commenced 27 years after the date of the alleged agreement. The form and structure of the Arbitration and Conciliation Act, 1996 have been palpably misused to set up a document with an object and intent to impede the rights of a third party namely, the co-operative society who was not a party to the alleged arbitral proceedings. The whole process of arbitration in the present case is sham. The present case is an instance of one where a palpably fabricated plea is sought to be set up to misuse the process of this Court in execution of a decree to affect the rights of a third party. Such conduct has to be depreciated in the strongest possible terms. It is unfortunate that pleadings solemnly affirming to the regularity of such proceedings have been filed in this Court._