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2011 DIGILAW 316 (KAR)

K. Mohan Rao v. B. K. Susheela

2011-03-18

B.MANOHAR, V.G.SABHAHIT

body2011
Judgment : 1. This appeal is filed by the unsuccessful petitioner in W.P. No.10640/2008, wherein the learned single Judge of this Court has declined to quash: the award passed by the Arbitrators(Annexure ‘B” to the writ petition) dated 10.08.1986; the endorsement issued by the Sub-Registrar, Mangalore, dated 11.08.1988; the judgement and decree passed by the Court of the Prl. Munsiff, Mangalore, dated 20.07.1995 (Annexures ’H’ and ‘J’ to the writ petition) dismissing I.A.I filed by the writ petitioner (appellant herein) under Sections 30 and 33 of the Arbitration Act, 1940, in A.c No. 6/1989 and the judgment and decree passed by the I Addl. District Judge, D.K., Mangalore, in R.A. No. 72/2004 dated 25.03.2008 (Annexure ‘K’ and ‘L’ to the writ petition), Wherein the order of the trail Court dismissing I.A.I, the application filed by the appellant herein was conformed. 2. The appellant herein filed W.P. No.10640/2008 averring that the legal heirs of Bala Raghavendra Rao including the appellant herein entered into an arbitration agreement dated 06.09.1980 and the Will of Ratnamma dated 13.08.1978, which became operative after the death of Raghavendra Rao and Ratnamma. Raghavendra Rao died on 15.03.1980 and Rathnamma died on 30.08.1978 and five Arbitrators were appointed by consent and the Arbitrators submitted the award on 10.08.1986 and the same was got registered on 11.08.1988. Respondents 18 to 21 herein filed application before the Principal Munsiff, Mangalore, in A.C. No. 6/1989 praying that the award dated 10.08.1986 registered as document No. 613/88-89 on the file of the Sub-Registrar of Mangalore Taluk be made a rule of Court under the Arbitration Act. In the said A.C. No.6/1989, interlocutory application – I.A.I/89 was filed the appellant herein under Sections 30-33 of the Arbitration Act, seeking for setting aside the award dated 10.08.1986. The learned Pri. Munsiff by order dated 20.07.1995, dismissed I.A.I filed by the appellant herein and conformed the arbitration award dated 10.08.1986. Being aggrieved by the same, the appellant herein filed R.A. No. 72/2004 before the I Addl. District Judge, D.K., Mangalore, which was dismissed by order dated 25.03.2008. Being aggrieved by the same, the appellant herein filed W.P. No.10640/2008 contending that the arbitrators had not afforded sufficient opportunity to him to put forth his contentions. Being aggrieved by the same, the appellant herein filed R.A. No. 72/2004 before the I Addl. District Judge, D.K., Mangalore, which was dismissed by order dated 25.03.2008. Being aggrieved by the same, the appellant herein filed W.P. No.10640/2008 contending that the arbitrators had not afforded sufficient opportunity to him to put forth his contentions. The Arbitrators have not held the proceedings in accordance with law and order of stay of proceeding in the arbitration matte was granted by this Court on31.07.1986 in C.R.P. No. 2904/1986 filed by the appellant herein and the same was communicated to the Arbitrators on 11.08.1986 and that the Arbitrators could not have given a finding under the Rules. 3. The petition was resisted by the respondents by contending that the Arbitrators were appointed by consent. The Arbitrators have followed the procedure and afforded sufficient opportunity to the appellant herein and all the parties before them and award passed is in accordance with law as per the terms of reference. The order passed by the learned Pri. Munsiff dated 20.07.1995 making the award decree of the Court and dismissal of I.A.I filed by the writ petitioner (appellant herein), which has been confirmed by the learned I Addl. District Judge in appeal – R.A No.72/2004 is justified and the writ petition devoid of merit. 4. The learned single Judge, after considering the contentions of the learned counsel appearing for the parties, by order dated 27.09.2010, held that : the writ petition is devoid of merit; both the trail Court and the first appellate court have concurrently held that the petitioner- appellant herein was afforded sufficient opportunity by the Arbitrators and no justice had been caused to him; there was a concurred finding on the question of fact, which did not call for interference in exercise of writ jurisdiction of this Court. The learned single Judge further observed that the validity of the Will executed by his wife – Kamalavathy and the same is pending adjudication and accordingly, dismissed the writ petition. Being aggrieved by the writ petition, this appeal is filed by the writ petitioner. 5. We have heard the learned counsel appearing for the appellant. 6. The learned single Judge further observed that the validity of the Will executed by his wife – Kamalavathy and the same is pending adjudication and accordingly, dismissed the writ petition. Being aggrieved by the writ petition, this appeal is filed by the writ petitioner. 5. We have heard the learned counsel appearing for the appellant. 6. The learned counsel appearing for the appellant reiterated the arguments addressed before the learned single Judge and further submitted that through contentions were taken regarding the validity of the award in view of the interim order granted by this Court dated 31.07.1986, which admittedly, was communicated to the Arbitrators on 11.08.1986 and the jurisdiction of the Arbitrators to give decision on the validity of the Will, the same have not been considered either by the Pri. Munsiff Court or the learned single judge and wherefore, the order of the learned single judge is liable to be set aside and the award passed by the Arbitrators dated 10.08.1986 may be set aside and consequently, the judgment and decree passed by the Pri. Munsiff, Mangalore, Conforming the award dated 10.08.1986 and dismissing I.A.I filed by the petitioner, which has been upheld by the learned I Addl. District Judge dated 25.03.2008 in R.A No 72/2004 may also be set aside. 7. we have given careful consideration to the contentions of the learned counsel appearing for the appellant and scrutinized the material on record. 8. The material on record would clearly show that the petitioner – appellant herein and the respondents are the children of Raghavendra Rao, and Rathnamma. Raghavendra Rao, during his life time executed a Will and Rathnamma executed a separate Will bequeathing the properties in favour of the appellant and the respondents. Raghavendra Rao died on 15.03.1980 and Rathnamma died of 30.08.1978. It is not disputed that the parents of the appellant and the respondents Raghavendra Rao and Rathnamma, during their life time had executed separate Wills bequeathing their properties in favour of the appellant and the respondents and after the death of Raghavendra Rao and Rathnamma, the said Wills became operative. Since there was dispute among the appellant and the respondents regarding the devolvement of the properties aw per the Wills executed by their parents, it was agreed that the matter shall be referred to the Arbitrators. Since there was dispute among the appellant and the respondents regarding the devolvement of the properties aw per the Wills executed by their parents, it was agreed that the matter shall be referred to the Arbitrators. The Arbitrators, after examining the controversy between the parties, passed the award dated 10.08.1986 as per Annexure ‘B’ to the writ petition dividing the properties between the appellant herein that he was not afforded sufficient opportunity before the Arbitrators cannot be accepted as the said contention has been negatived by the learned single Judge and the proceedings would also show that he was informed about the proceedings and he did not avail if the said opportunity and in the absence of any specific material on record, it is not open to the appellant to now contend that he was not given sufficient opportunity. Further, the application – I.A. No. 1 filed by the appellant before the Pri. Munsiff was dismissed and the same has been confirmed in R.A. No.72/2004 by order dated 25.03.2008 and wherefore, the contention of the appellant that he was not afforded sufficient opportunity cannot be accepted. So far as the order of stay of the proceedings before the Arbitrators dated 31.07.1986 granted by this Hon’ble Court is concerned, Admittedly, the same was communicated to the Arbitrators on 11.08.1986 and the Arbitrators have prepared the award on 10.08.1986 itself and wherefore, the stay would be operative against the Arbitrators only on 11.08.1986 and the award cannot be said to be contrary to law. The said contention was not urged before the learned single Judge and no affidavit is filed stating that the said contention was urged, but, the same was not considered by the learned single Judge. Further, it is clear that in view of the provisions of the Arbitration Act, 1940 since the Arbitrators were appointed by consent of the appellant and respondents to resolve the dispute regarding the share of the properties in connection with the Will Executed by their parents, it is not open to the appellant now to contend that the Arbitrators were not vested with the power of considering the validity of the Wills as the Arbitrators, having gone into the validity of the Wills and the dispute about the sharing of the properties among the appellant and the respondents, passed the award dated 10.08.1986. Once the appellant and the respondents have submitted to jurisdiction of the Arbitrators, it is not open to the appellants to contend that reference was bad as the appellant is also a consenting party to the agreement to refer the subject matter of the dispute between the parties to the Arbitrators. Accordingly, we hold that the impugned order passed by the learned single Judge declining to grant the prayer sought for by the appellant is justified and the same does not suffer from any error or illegality as to call for interference in this intra Court appeal and pass the following Order:- The Writ appeal is dismissed.