PREM LAL JAIN Vs. CHHABI DEY

JUDGEMENT

(1.) This is an application filed under Section 47 of the Code of Civil Procedure by two of the judgment debtors seeking to set aside the award dated 29th July, 2005.

(2.) The case of the applicants is that by a sale agreement dated 9th May, 2005 the predecessor-in-interest of the applicants agreed to sell the subject property to the decree-holder Prem Lal Jain. The parent agreement did not contain an Arbitration Clause and subsequently an arbitration agreement was entered into on 2nd July, 2005. On 5th July, 2005 a reference was filed by the applicant's predecessor-in-interest through her Constituted Attorney one Mr. Achintya Kumar Banga and as a counter statement was filed on 9th July, 2005 an award was passed on 29th July, 2005. The said award was confirmed by the applicant's predecessor-in-interest Kamala on 2nd August, 2005. The said award was thereafter in December, 2008 sought to be executed and the execution application was served on the applicant wherefrom the applicant came to know of the award dated 29th July, 2005.

(3.) The aforementioned was done in hot-haste and only after Kamala died on 10th September, 2005. The said documents are back-dated. A Will was executed by Kamala on 22nd May, 1995 and in 2006 PLA 50 of 2006 was filed for grant of Probate by the executors of the said Will. An interim application was also filed for grant of Letters of Administration and the Letters of Administration was granted in favour of Indira Mullick one of the daughters of Kamala. An order of injunction was also passed on 28th February, 2006. Two notices were put up by the Special Officer pursuant to order passed in PLA 50 of 2006 dated 12th July, 2006. In fact it has been disclosed by the decree-holder that an advance payment of Rs. 1 Lac was made in February, 2006 to the judgment-debtor No.3 and the letter of confirmation has also been signed by him. In the said letter of confirmation although the agreement of 9th May, 2005 finds mention but there is no mention of the award of July, 2005, therefore the award and the documents, namely, statement of claim and counter statement are nothing but back-dated documents. The Constituted Attorney of Kamala has also filed PLA 133 of 2006 wherein there is also no mention of the award on the contrary the Moore Avenue property which is the subject matter of the Sale Agreement has been included in the schedule of assets, therefore the decree is a nullity and by seeking to execute the same fraud is being perpetrated on Court. The issue of nullity can be raised in proceedings filed under Section 47 of the CPC and as fraud unravels all, therefore the decree is void. Fraud has been committed not only on Kamala but also her legal heirs and representatives. In fact the arbitration agreement, reference, award and acceptance have all occurred after the demise of Kamala. It is unbelievable that a party which suffers an award will confirm the same in writing. Therefore it is nothing but fraud committed which renders the decree void. Reliance is placed on 2007 AIR(SC) 1546 2010 (8) SCC 383, 2001 (8) SCC 187, 2002 (3) CHN 482, 2003 (8) SCC 565, 1996 AIR(Del) 191 and 2004 AIR(Cal) 207