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2018 DIGILAW 220 (KAR)

Gopala Sherigara v. Lakshmi Rai

2018-02-16

VINEET KOTHARI

body2018
JUDGMENT : 1. The present appeal has been filed by Mr. Gopala Sherigara, aggrieved by the order dated 30.06.2016 passed by the Court below of I Addl. District and Sessions Judge, D.K., Mangalore, in A.S.No.2/2011 (Mr. Gopal Sherigar vs. Smt.Lakshmi Rai & Anr.), rejecting the application of the present appellant under Section 34 of the Arbitration and Conciliation Act, 1996. 2. The learned Court below has given the following reasons for rejecting the application under Section 34 of the Act:- "37. The learned counsel for the plaintiff also submitted that proper procedure was not fixed by the arbitrator and the rule of equal treatment was not followed by him. On a careful perusal of the arbitral proceedings, it is evident that none of the parties represented before the arbitrator regarding procedure to be followed. The arbitrator has followed the procedure prescribed under Civil Procedure Code. I do not find any reason to hold that there is any deviation than what is to be followed as laid by the C.P.C. The entire proceeding has been conducted in a summary way. The learned arbitrator has fixed dates in the presence of the parties and I do not find any reasons to hold that the non-fixation of the procedure to be followed was detrimental to the interest of the plaintiff. Nothing prevented the plaintiff to submit before the learned arbitrator that a specific procedure has to be followed by him. No such efforts were made by the plaintiff. Therefore the challenge under Section 34(2)(a)(v) that the proper procedure was not followed cannot be accepted. 38. The last point to be considered by this tribunal is regarding the appreciation of evidence and as to whether the award is patently illegal or not. The amending provisions of Section 34 of the A & C Act lay down that the award gets vitiated by patent illegality appearing on the face of the record. The learned counsel for the plaintiff contends that the hardship that may be caused to the plaintiff has not been considered by the tribunal. It is contended that the consideration amount fixed is a pittance and the discretion U/s 20 of the Specific Relief Act should have been exercised in favour of the plaintiff. The learned counsel for the plaintiff contends that the hardship that may be caused to the plaintiff has not been considered by the tribunal. It is contended that the consideration amount fixed is a pittance and the discretion U/s 20 of the Specific Relief Act should have been exercised in favour of the plaintiff. It is pertinent to note that the proviso to sub-section (2A) of Section 34 of A & C Act states that the award shall not be set aside merely on the ground of erroneous application of law or by re-appreciation of the evidence. This is a caveat imposed on the Court to desist from setting aside the award on the ground of erroneous application of law. It may be noted that the learned arbitrator has considered the provisions of Specific Relief Act. He has not discussed about the ready and willingness. The learned arbitrator has discussed about the hardship while considering the damages to be awarded to the defendant No.1. Therefore the question of ready and willingness was not considered by the learned arbitrator but he has sufficiently considered the question of hardship that may be rendered to the plaintiff. Under these circumstances the erroneous application of Section 20 of Specific Relief Act or absence of any discussions about ready and willingness cannot be a ground to set aside the award. Under these circumstances it cannot be said that the award is patently illegal on the face of it. It is evident that there was litigation in respect of the suit schedule property since the year 1984 and the circumstances show that defendant No.1 through Preeth Hegde proposed to purchase the same from all the stake holders and when the plaintiff came to know about such transaction, he might have withdrew from the same. It cannot be said that the plaintiff was unaware of the contents of the agreement of sale and that his signatures were taken fraudulently, Cross examination of PW.1 before this Court show that he had cancelled the power of attorney executed in favour of Preeth Hegde immediately after receiving sum of Rs.6-00 lakhs through cheque. Therefore this Court is not convinced that the award passed by the learned arbitrator is patently illegal on the face of it. 39. Therefore this Court is not convinced that the award passed by the learned arbitrator is patently illegal on the face of it. 39. Thus on perusal of the impugned award, it is seen that the evidence on record has been discussed by the learned arbitrator and he has also considered the question of hardship. On the other hand, the defendant withdrew from the arbitral proceedings at his own peril. When the challenge to the arbitrator was dismissed by him, it appears that there were some unwanted allegations being hurled against the arbitrator and such displeasure and piquant situation has been narrated by the learned arbitrator while considering point No.6. It is evident that the plaintiff instead of adducing his evidence, went on to cast allegations against the arbitrator and he withdrew from such arbitration. The cross examination of the PW.1 before this Court shows that till half way during the arbitration proceedings, he had no specific reason to doubt the arbitrator. If that is so, the question remains as to why the plaintiff withdrew from the arbitral proceedings. It appears that soon after entering into agreement of sale, the plaintiff wanted to cancel the same and since then on one or the other pretext, the arbitral proceedings were avoided by him. Therefore I am not convinced by the contention of the learned counsel for the plaintiff that the arbitrator was at fault for continuing with the arbitral proceedings. It may be noted that simply because the plaintiff contends that he has no faith in the arbitrator, the arbitral proceedings cannot be terminated. Accepting such an argument would be disastrous to the proposition of law. Any person who faces breach of the contract would be interested in alleging bias and partisan approach after his appearance before the learned arbitrator. It is also to be noted that whatever may be the oral testimony in the form of cross examination that has been recorded by the arbitrator, the documents and the examination in chief speak for themselves. There cannot be any role of the arbitrator in respect of the examination in chief and the documentary evidence. Therefore it was incumbent upon the plaintiff herein to proceed with adducing evidence on his behalf in order to prove the allegations of fraudulent execution of the agreement of sale. Unfortunately, to his own peril the plaintiff has withdrew from the proceedings. Therefore it was incumbent upon the plaintiff herein to proceed with adducing evidence on his behalf in order to prove the allegations of fraudulent execution of the agreement of sale. Unfortunately, to his own peril the plaintiff has withdrew from the proceedings. Under these circumstances I do not find any merit in the contention raised by the learned counsel for the plaintiff. None of the challenges for the award are sustainable. Keeping in view the dictum of the Hon'ble Apex Court in the case of Associate Builders as reproduced supra, I do not find any sustainable ground being made out by the plaintiff. It is worth to note that U/s 12 of the A & C Act Schedule-V has been prescribed by way of the amending Act of 2015. None of the grounds which are found in the Vth schedule are also made out by the plaintiff. Hence the points raised above are answered in the negative. 40. Point No.4: In view of the discussion made supra, the suit fails, and I proceed to pass the following: ORDER The Arbitration Suit filed by the plaintiff against the defendants U/s 34 of the Arbitration and Conciliation Act 1996 is hereby dismissed. Under the circumstances no order as to costs. Draw decree accordingly. Sd/- (C.M. Joshi) I Addl. District Judge, D.K. Mangalore." 3. The learned counsel for the appellant Mr.V.R.Prasanna submitted that the appellant Mr.Gopala Sherigara is shown to be an alleged Vendor in an Agreement to Sell executed by him in favour of Respondent No.1-Smt.Lakshmi Rai, the Agreement holder for the 1/4th undivided share of the appellant in the joint property of the family, for which a partition suit O.S.No.267/1984 was instituted and a Preliminary Decree was passed on 29.01.1988. He submits that the Respondent No.1- Smt.Lakshmi Rai in the meanwhile, invoked the Arbitration proceedings in the matter and the arbitral award was passed by the learned Arbitrator on 08.02.2011, against which, the present appellant - Mr.Gopala Sherigara also filed Section 34 application in the learned Court of Addl. District Judge, D.K.,. Mangalore, which to came to be dismissed on 30.06.2016 by the impugned order. Hence, the present appeal. 4. On the other hand, learned counsel for the Respondent No.1 Mr. District Judge, D.K.,. Mangalore, which to came to be dismissed on 30.06.2016 by the impugned order. Hence, the present appeal. 4. On the other hand, learned counsel for the Respondent No.1 Mr. K. Chandranath Ariga submitted that as per the Agreement itself, only undivided 1/4th share of the appellant was intended to be transferred to the 1st Respondent and on account of the failure of the appellant to transfer the said 1/4th share of the property, the present arbitration proceedings were initiated and Award has already been passed in favour of the Respondents on 08.02.2011, which has become final with the dismissal of the Arbitration Application under Section 34 of the Act vide A.S.No.2/2011 dismissed on 30.06.2016. He submitted that the narrow grounds on which Section 34 of the Act could be invoked were not at all satisfied in the present case and the learned District Judge has rightly rejected the said application under Section 34 of the Act and there is no merit in the present appeal under Section 37 of the Act as well. 5. Having heard the learned counsels for the parties, this Court is of the considered opinion that there is no ground whatsoever to set aside the impugned order of the learned Addl. District Judge dated 30.06.2016. No grounds for setting aside the arbitral award under Section 34 of the Act were established before the learned Court below. It is well settled that Section 34 petition lies in a very narrow compass and those limited grounds for setting aside the Arbitral Award should be established with relevant and cogent evidence. The Arbitration Award itself is a finally executable Civil Decree under the law. 6. The partition suit between the parties may have a bearing on the execution of the Arbitral Award which was limited to the transfer of undivided 1/4th share by the present appellant under the Agreement in question. Therefore, mere pendency or even Decree of the partition suit does not establish any ground per se under Section 34 of the Arbitration Act for setting aside the Award, much less under Section 37 of the Act. 7. Consequently, this Court does not find any force in the present appeal and the same is liable to be dismissed and accordingly, it is dismissed. No costs.