Zulkarnain Mohammedhusain Kagalwala v. Taherbhai Abdullabhai of Mumbai
2014-08-06
A.K.MENON, S.J.VAZIFDAR
body2014
DigiLaw.ai
ORAL JUDGMENT 1. Two awards were passed by the Arbitral Tribunal. The above four petitions were filed under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the awards. Two petitions each were filed in respect of each of the said awards. The petitions were partly allowed. The appellant in all the appeals is the same. The appellant was one of the respondents in each of the petitions. The original appellant having died, by an order of 2011, his four heirs were brought on record. 2. Appellant No.1 in each of the appeals desires to be represented by a separate advocate in each of the appeals. There are two ways of dealing with the situation. One is by transposing some of the appellants as respondents. That however would not be satisfactory in all cases. For instance a transposed appellant may wish to take additional grounds by amending the memo of appeal at a later date. The other appellant may not agree to the same. Furthermore, there may be conflicting interests between the appellant and the transposed appellants even on the merits of the matter. In such cases, neither the appellant nor the appellants transposed as respondents would be able to deal with their respective rights satisfactorily in a common appeal. 3. Mr. Sen, the learned senior counsel appearing on behalf of the applicants in these Chamber Summons invited our attention to the judgment of this Court in [1985 [Vol. LXXXVIII] The Bombay Law Reporter 308 ] Laxmidas N. Madhavani V/s. Madhavani Private Ltd. The learned Single Judge of this Court held as under:- “However, when one or more of the appellants who have already preferred one appeal wish to engage a different advocate or to otherwise separate their case from the remaining appellants, the correct procedure for them to follow is to make an application for separating their appeal and to file a memorandum of appeal enumerating their specific grounds of objection to the decree appealed from. In the said memorandum of appeal they should mention as respondents those appellants from whom they have parted company and also in the application they should pray for showing himself or themselves as respondent/s in the appeal of those appellants from whom he or they have separated.
In the said memorandum of appeal they should mention as respondents those appellants from whom they have parted company and also in the application they should pray for showing himself or themselves as respondent/s in the appeal of those appellants from whom he or they have separated. On such an application being granted, the additional memorandum of appeal will be separately numbered and the hearing of both the appeals can proceed being supported by different advocates. When this procedure is followed, there is no fresh appeal; the existing appeal is only split up. Therefore, there should be no bar of limitation. The office henceforth should not accept the Vakalatnama of any advocate who intends to file his appearance for some only of the appellants in a pending appeal. When such a Vakalatnama is presented it should be notified under objection and the procedure pointed out by this judgment and by the judgment in Bhaskar Pandit Kadam's case should be insisted upon. ” 4. We are in agreement with the learned Judge. This course would enable all the original appellants to prosecute their respective cases satisfactorily. The rights and interest of the parties will not be affected if such a course is adopted. It would therefore, not be necessary to seek condonation of delay in filing the appeals on account of this course being adopted. 5. In the circumstances, the above chamber summons are made absolute in terms of prayer clauses (a), (b) & (c). 6. The appeals filed pursuant to this order shall be heard along with other appeals.