CHARAN SHARAN KHEMKA Vs. ACHINT CHEMICALS

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner against the order dated 26. 9. 2000 passed by the learned District Judge, Bhilwara in civil execution case No. 12/99 by which the execution application filed by the petitioner under section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act of 1996") read with Order 21 Rule 11 CPC was dismissed.

(2.) IT arises in the following circumstances:- On 26. 7. 1999, the petitioner filed an application under Order 21 Rule 11 CPC read with Section 36 of the Act of 1996 before the Court of District Judge, Bhilwara stating inter-alia that the so-called arbitration award dated 14. 6. 1996 be treated as an arbitral award deemed to have been passed under the provisions of the Act of 1996 and therefore, it has got the status or shape of decree as defined under the Code of Civil Procedure and thus, it was executable under Order 21 Rule 11 CPC. The gist of the so-called arbitration award dated 14. 6. 1996 passed between the parties is as follows: (i) That petitioner was having a partnership with his partner Guru Sharan Khemka (respondent No. 2) in the firm M/s Achint Chemicals, Bhilwara (respondent No. 1) and due to some personal reasons, the petitioner wanted to retire from that partnership and for that, so-called arbitration award was passed on 14. 6. 1996 between the parties. (ii) That as per terms of that so-called arbitration award dated 14. 6. 1996, it was decided that the petitioner would be paid Rs. 8 lacs in lump sum and thereafter, the petitioner would be entitled to Rs. 8000/- per month for rest of his life and that amount would be paid by the respondent No. 2 Guru Sharan Khemka and respondent No. 1 M/s Achint Chemicals, Bhilwara. (iii) That it was also stated in that so-called arbitration award that Shri Dhirendra Kumar Pareek, CA of the firm would take necessary steps for giving legal status or shape to that so- called arbitration award in order to resolve the dispute for ever. According to the petitioner, in pursuance of the so-called arbitration award dated 14. 6. 1996, he was paid Rs. 8 lacs and thereafter, he was also paid Rs. 8000/- per month for 33 months. However, thereafter, the respondents failed to honour and comply with the so-called arbitration award dated 14. 6. 1996 and thus, for execution of that arbitration award, the above application under Order 21 Rule 11 CPC read with Section 36 of the Act of 1996 was filed. A reply to the said application was filed by the respondents on 13. 3. 2000 stating inter-alia that between the parties, there was no arbitration agreement and therefore, provisions of the Act of 1996 are not applicable with the so- called arbitration award dated 14. 6. 1996. Hence, it was not executable before the civil court. IT was further submitted by the respondents that in case the so-called arbitration award be treated as arbitral award deemed to have been passed under the Act of 1996, in such a situation, thereafter, the petitioner should have approached the competent court to make it rule of the Court and in absence of that, the said execution application of the petitioner was not maintainable as the so-called arbitration award dated 14. 6. 1996 does not come within the definition of arbitral award as defined in the Act of 1996 or decree as defined in the Code of Civil Procedure. IT was further submitted that the so-called arbitration award was nothing, but a family settlement between the parties and not more than this. Hence, it was prayed that the application filed by the petitioner be dismissed. After hearing the parties, the learned District Judge, Bhilwara through impugned order dated 26. 9. 2000 dismissed the application filed by the petitioner under Order 21 Rule 11 CPC read with Section 36 of the Act of 1996 holding inter-alia: (i) That from the partnership deed produced on record, it appears that in the firm M/s Achint Chemicals (respondent No. 1), there were only two partners, namely, Charan Sharan Khemka (petitioner) and Guru Sharan Khemka (respondent No. 2), but in the so-called arbitration award dated 14. 6. 1996, Smt. Usha Mathur was also shown as partner, meaning thereby after 20. 10. 1982, one more partnership deed was executed between the parties in which Smt. Usha Mathur was made partner, otherwise she would not have been shown as partner in the so-called arbitration award dated 14. 6. 1996 and that partnership deed was not produced before the court and in absence of that, the Court could not know whether in that partnership deed, there was any clause to the effect that in case of dispute between the parties, the same shall be referred for settlement to the arbitrator or not. Apart from this, neither the condition No. 13 of partnership deed dated 20. 10. 1982 could be said to be final nor on the basis of it, it could be said that an agreement was made between the parties that disputes between the parties would be resolved through arbitration award. (ii) That so-called arbitration award dated 14. 6. 1996 does not come within the definition of arbitral award as defined under the Act of 1996 or decree as defined under the Code of Civil Procedure. (iii) That in the so-called arbitration award dated 14. 6. 1996, it was specifically stated that Shri Dhirendra Kumar, CA of the firm would take necessary steps for giving it the legal status or shape, but no steps were taken by him in this respect and thus, from this point of view also, the so-called arbitration award dated 14. 6. 1996 cannot be regarded or termed as arbitral award passed under the Act of 1996. (iv) That since necessary stamps were not affixed on the so-called arbitration award dated 14. 6. 1996, therefore, it could not be termed or regarded as legal or valid arbitral award and thus, it was not executable by the court. Aggrieved from the said order dated 26. 9. 2000 passed by the learned District Judge, Bhilwara, this revision petition has been filed by the petitioner. A reply to the revision petition was filed by the respondent No. 2 on 22. 7. 2004.

(3.) THERE is also no dispute on the point that Shri Dhirendra Kumar, CA of the firm was asked to take necessary steps for giving the legal status or shape to the so-called arbitration award dated 14. 6. 1996 so as to resolve the dispute for ever, but it appears that no steps were taken by him.