KEVAL KRISHNA BALAKRAM HITKARI Vs. ANIL KEVAL HITKARI

JUDGEMENT

(1.) ARBITRATION Petition No. 148 of 1997 has been filed for passing a decree in terms of the Award dated 3rd April 1995 made by the learned Arbitrator Shri R. R. Chari and numbered as Award No. 121 of 1995. It is the case of the petitioners that the petitioners and the respondents are closely related. The petitioner Nos. 1 and 2 are the husband and wife respectively. Respondent No. 1 is their son. Respondent No. 2 is the wife of their son Mr. Anil. Respondent No. 3 Mr. Arun is their another son. Respondent No. 4 is the daughter-in-law being wife of their son Mr. Arun. Respondent No. 5 is the sister of petitioner No. 1 and respondent No. 6 is a legal representative of deceased daughter of the petitioners by name Anju Sawhney. Respondent Nos. 7 and 8 are the business concerns of the family. According to the petitioners an agreement was reached between the parties on 12th November 1994 whereby the parties decided to refer their disputes and differences to a Sole Arbitrator. The Sole Arbitrator made his award, which is dated 3rd April 1995. The parties to the agreement unconditionally accepted the award. On the same day they also executed a deed of partition partitioning the property in terms of the award. There is no petition filed raising objections to the award, within the time allowed by the law. Mr. Sanjay Sawhney, who is the legal representative of the deceased daughter of the petitioners by name Anju Sawhney has filed a petition being Arbitration Petition (Lodging) No. 264 of 1998 praying for an order setting aside the award dated 3rd April 1995. That petition has been filed beyond time and therefore, there is a prayer for condonation of delay in filing that petition. Respondent Nos. 3 and 5 support the petition. The petition has been opposed only by respondent No. 1 Mr. Anil. According to the petitioners respondent No. 1 Mr. Anil is not entitled to oppose the petition because he has already derived and accepted the benefits under the award. Petitioner No. 1 has filed an affidavit dated 3rd September 1997 stating the details of benefits which have been derived by respondent No. 1 Mr. Anil under the award.

(2.) THE learned Counsel, appearing for the petitioners submits that in the present case there is a written agreement to refer the disputes to arbitration. The award of the Arbitrator has been accepted by all the parties to the award. Respondent No. 1 has derived benefits out of the award and therefore according to him respondent No. 1 is estopped from challenging the award. In support of this proposition, he relies upon judgment of the Supreme Court in the case of (Kale and others v. Deputy Director of Consolidation and others), A. I. R. 1976 S. C. 807. According to the learned Counsel for the petitioners the award does not itself create rights in the immoveable properties, which are dealt with by the award. The award requires documents to be executed by the parties for making declarations/transfers mentioning the award effective and therefore according to the learned Counsel it was not necessary to register the award in terms of the provisions of section 17 of the Registration Act. For this proposition he relies on the judgment of the Supreme Court in the case of (Mrs. Tehmi P. Sidhwa and others v. Shib Banerjie and Sons Pvt. Ltd. and another), A. I. R. 1974 S. C. 1912. The learned Counsel submits that the parties are closely related. They agreed to refer their disputes to a Sole Arbitrator. The award of the Arbitrator has not only been signed in acceptance by all the parties but has also been acted upon by the parties. The learned Counsel relying upon the observations of the Supreme Court in its judgment in the case of (Vaidya Harishankar Laxmiram Rajyaguru of Rajkot v. Pratapray Harishankar Rajyaguru of Rajkot), 1988 (3) S. C. C. 21, submits that considering the close relationship between the parties and their conduct only for technical objection the Court cannot decline making of a decree in terms of the award. He also relies on the observations of the Supreme Court in its judgment in the case of (Bijendra Nath Srivastava (dead) through L. Rs. v. Mayank Srivastava and others), A. I. R. 1994 S. C. 2562. In so far as the objection raised by Mr. Sanjay Sawhney to the award is concerned the learned Counsel submits that even if it is assumed that Mr. Sanjay Sawhney has raised the objection within time, according to the learned Counsel Mr. Sanjay Sawhney is not entitled to raise any objection to the award because according to the learned Counsel it is admitted position between the parties that the entire property which is the subject matter of the award was owned by Mr. Balakram Hitkari, who is the father of the petitioner No. 1 who died on 28th August, 1971. Some of the properties were also held by his wife Durgadevi Hitkari who died on 9th November 1991. There are Wills left behind by both Balakram Hitkari and Durgadevi Hitkari. However none of the Wills has yet been probated and respondent No. 1, Mr. Anil who has filed the petition for obtaining probate of these Wills has agreed to withdraw those probate petitions. In the submissions of the learned Counsel as the entire property is left behind by Balakram Hitkari and Durgadevi Hitkari, Anju Sawhney: who is the mother of Mr. Sanjay Sawhney who has raised the objection would have no interest in the property left behind by Balakram Hitkari and Durgadevi Hitkari during the life time of her father petitioner No. 1 and therefore according to the learned Counsel therefore Anju Sawhney had no right, title or interest in any of the properties which are subject matter of the arbitration award. The learned Counsel submits that an amount of Rs. 60 lakhs is directed to be paid to Anju Sawhney out of sale consideration of one of the properties. According to the learned Counsel this direction has been issued by the arbitrator and accepted by the parties. In the submission of the learned Counsel as Mr. Sanjay Sawhney has no right to claim any more benefits than have been awarded in relation to the properties that are subject matter of the award he is not entitled to challenge the same. The learned Counsel also submits that therefore even if the objection raised by Mr. Sanjay Sawhney that his mother has not signed the agreement to refer the disputes to arbitration as also the arbitration award is taken to be correct then what can be said is Anju Sawhney is not a party to the arbitration agreement and the award and therefore the award would not be binding on her. According to the learned Counsel in any case the award does not deprive Anju Sawhney or her heirs or any of their right in the property which are subject matter of the arbitration agreement or the arbitration award on the contrary it confers some benefits on Anju Sawhney to which she is not entitled to in law.

(3.) THE only petition filed for objecting the award is filed by Mr. Sanjay Sawhney. The learned Counsel appearing for Mr. Sanjay Sawhney did not argue or make submissions that Anju Sawhney of whom the objector Mr. Sanjay Sawhney is the son had any interest in the property that was subject matter of the award. However the only submission that was made by the learned Counsel relying on judgment of this Court in the case of (M/s. Shri Vallabh Pitte v. Narsingdas Govindram Kalani), A. I. R. 1963 Bom. 157 was that as Anju Sawhney had not signed the arbitration agreement the arbitrator had no jurisdiction to pass the award and therefore award should be set aside.