1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.290 OF 2009 Milind R. Khanolkar ..Petitioner V/s. Peter A D'Souza & ors ..Respondents Mr.A.Y.Sakhare with Mr.M.Khandeparkar i/b.Kanga & Co., Advocate, for the petitioner Mr.Satish Mishra i/b.Mr.A.M.Saraogi, Advocate, for respondent No.2 CORAM : ANOOP V. MOHTA, J. DATE : 14TH DECEMBER, 2009 JUDGMENT Heard finally. . The petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act) and thereby challenged the Award dated 20th October, 2005/29th November, 2008. The facts as recorded are as under :- 2. As alleged, the petitioner is the citizen of India and a partner of M/s.Shilpa 2 Builders a partnership firm being Respondent No.3 herein. Respondent No.2 is an Indian Inhabitant and is also a partner of M/s.Shilpa Builders being Respondent No.3 herein. Respondent No.1 is not known to the petitioner and not seen by the petitioner. Respondent No.1, however, claims to have obtained an Award against the Petitioner and Respondent No.3 being Award dated 20th October, 2005/29th November, 2008 which is challenged in the present Petition. 3. The Petitioner is filing this Petition for setting aside the purported Arbitration Award dated 20th October, 2005 alleged to have been signed on 29th November, 2008. 4. The Petitioner says that to his utter shock he received on 2nd day of March, 2009 a copy of the Affidavit of Shri S.V.Prakash the Authorised Signatory of the said Shilpa Co- operative Housing Society Ltd. in Execution 3 Application No.461 of 2008 in Award dated 20th October, 2005. Reading the said Affidavit he learnt that Respondent No.1 had filed an application for execution of the Award dated 20th October, 2005 and has taken out Chamber Summons No.13 of 2009 therein for Interim reliefs. The petitioner says that the said Award is false, forged and fabricated document created in collusion and conspiracy between Respondent Nos.1 and 2 (No.2 acting for self and as partner of the Respondent No.3) and the said alleged Arbitrator, and the same is liable to be set aside. 5. This is a peculiar matter whereby after hearing both the parties in Chamber Summons No.13 of 2009 the learned Single Judge (Dr. Justice D. Y. Chandrachud) has passed the following Order. 11.The facts that have come before the Court demonstrate that an arbitral award allegedly of 2005 is sought to be set up much after a registered deed of conveyance 4 was executed in favour of the co-operative society on 24th March, 2006. The alleged arbitral award was sought to be set up not at the first available opportunity when the Advocate for Shilpa Builders addressed a letter dated 16th July, 2008. It is in a letter dated 03rd August, 2008 that reference to the arbitral award is to be found. Then again, there is an ambiguous statement that the award came to be passed somewhere in 2005 or so. The arbitral award purports to have been made on 20th October, 2005 and it has been submitted that the award has been ante dated to a date prior to the execution of the registered deed of conveyance in favour of the society. As already noted above, the ante dating is obvious because the stamp paper on which the award is made is dated 29th November, 2008. An alleged agreement of 23rd October, 1981 is the basis and foundation of the award. No arbitration agreement or minutes of meetings before the arbitrator are forthcoming. Evidently, limitation was not even set up as a defense though the alleged arbitral proceedings commenced 27 years after the date of the alleged agreement. The form and structure of the Arbitration and Conciliation Act, 1996 have been palpably misused to set up a document with an object and intent to impede 5 the rights of a third party namely, the co-operative society who was not a party to the alleged arbitral proceedings. The whole process of arbitration in the present case is sham. The present case is an instance of one where a palpably fabricated plea is sought to be set up to misuse the process of this Court in execution of a decree to affect the rights of a third party. Such conduct has to be depreciated in the strongest possible terms. It is unfortunate that pleadings solemnly affirming to the regularity of such proceedings have been filed in this Court. 6. Appeal No.474 of 2009 was preferred by respondent No.1 herein. There was no challenge made by respondent No.2. The observations in the Order so made as quoted above, remained intact for all the purposes. The Appeal filed by respondent No.2 was also disposed of as withdrawn. 7. In view of the above, in the present case all the ingredients which are necessary 6 to set aside arbitral Award are available. The Award is illegal, without jurisdiction and it is nothing but misuse of concept of the arbitration proceedings. It is, null & void. Therfore, also all actions or execution , if any, arisen out of the same Award. 8. Resultantly, the Petition is allowed in terms of prayer Clauses (a) & (b) with costs. (ANOOP V. MOHTA, J.)