:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.670 OF 2007 NO.670 OF 2007 NO.670 OF 2007 IN IN IN ARBITRATION ARBITRATION ARBITRATION PETITION NO.336 OF 2007 PETITION NO.336 OF 2007 PETITION NO.336 OF 2007 1. Rajesh Construction Co.Ltd., registered and incorporated under the provisions of the Companies Act,1956 and having its registered office at 139 Sakseria Chambers, 2nd Floor, Nagindas Master Road, Fort, Mumbai - 400 023. 2. Rajesh Raghavji Patel of Bombay, Indian inhabitant, the Director of the Rajesh Construction Ltd. i.e. Petitioner No.1 herein and having his office at above at 139, Sakseria Chambers, 2nd Floor, Nagindas Master Road, Fort, ..Appellants Mumbai - 400 023. (Ori.Petitioners) Versus Versus Versus 1. Ravilal Nanji Dedhia 2. Nirmala Ravilal Dedhia 3. Purvi Vijay Dedhia all of Bombay, Indian inhabitants residing at 303, Gagangiri Complex, 18th Road, Chembur, Mumbai - 400 071. 4. Everest Construction Co. a partnership firm having its office at 12/12A, Arihant Mansion, 29, Keshavji Naik Road, ..Respondents Mumbai - 400 009. (Ori.Respondents) WITH WITH WITH ARBITRATION ARBITRATION ARBITRATION APPLICATION NO.43 OF 2008 APPLICATION NO.43 OF 2008 APPLICATION NO.43 OF 2008 1. Rajesh Construction Co.Ltd., registered and incorporated under the provisions of the Companies Act,1956 and having its registered office at 139 Sakseria Chambers, 2nd Floor, Nagindas Master Road, Fort, Mumbai - 400 023. :2: 2. Rajesh Raghavji Patel of Bombay, Indian inhabitant, the Director of the Rajesh Construction Ltd. i.e. Applicant No.1 herein and having his office at above at 139, Sakseria Chambers, 2nd Floor, Nagindas Master Road, Fort, ..Applicants Mumbai - 400 023. Versus Versus Versus 1. Ravilal Nanji Dedhia 2. Nirmala Ravilal Dedhia 3. Purvi Vijay Dedhia all of Bombay, Indian inhabitants residing at 303, Gagangiri Complex, 18th Road, Chembur, Mumbai - 400 071. 4. Everest Construction Co. a partnership firm having its office at 12/12A, Arihant Mansion, 29, Keshavji Naik Road, Mumbai - 400 009. 5. Shantilal Vershi Haria, of Mumbai, Indian Inhabitant, residing at 03/107, Bhaveshwar Complex, Vidya Vihar (West), Mumbai - 400 086. ..Respondents Mr.Shri Hari Aney, Senior Advocate with Mr.S.C.Tamhane i/b. Tamhane & Co. for the Appellant in Appeal No.670 of 2007. Mr.S.U.Kamdar with Mr.Satish Shah i/b. Tamhane & Co. for the Applicant in Arbitration Application No.43 of 2008. Mr.D.D.Madon, Senior Advocate with Mr.D.H.Mehta i/b. S.Pathak & Co. for Respondent Nos.1 and 2. Mr.Pravin Samdhani, Senior Advocate with Mr.Maulik P.Vora for Respondent Nos.3 and 4. Mr.S.Kathawala with Ms.Sandya Tolat i/b.M/s.Vimdalal & Co. for Respondent No.5 in Arbitration Application No.43 of 2008 and Noticee in Show Cause Notice No.302 of 2008. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & A.V.NIRGUDE, A.V.NIRGUDE, A.V.NIRGUDE, JJ. JJ. JJ. :3: JUDGMENT JUDGMENT JUDGMENT RESERVED ON : 3RD JULY,2008 RESERVED ON : 3RD JULY,2008 RESERVED ON : 3RD JULY,2008 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON : 23rd OCTOBER,2008 PRONOUNCED ON : 23rd OCTOBER,2008 PRONOUNCED ON : 23rd OCTOBER,2008 JUDGMENT JUDGMENT JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) 1. Both the above Appeal and the Arbitration Application have been referred to us for final disposal by the Hon’ble the Chief Justice. 2. The above Appeal arises out of a judgment and order dated 27th August,2007 passed by the learned Single Judge dismissing the Arbitration Petition filed under Section 9 of the Arbitration and Conciliation Act,1996 (for the sake of brevity "the said Act") and the above Arbitration Application No.43 of 2008 has been filed for the purpose of appointment of an Arbitrator as per the provisions of Section 11 of the said Act. 3. The entire controversy in both the above Appeal as well as the Arbitration Application arises out of the purported Memorandum of Understanding (in short MOU) entered upon between the Ravilal Nanji Dedhia Group and Rajesh Builders Group. It is the case of the Appellant that a MOU was executed between the Ravilal Nanji Dedhia Group and Rajesh Builders Group on 8th November,2004, wherein in Arbitration clause, both the parties had jointly appointed one Shantilal Vershi Haria as a sole Arbitrator. Mr.Aney, the learned Senior Counsel appearing on :4: behalf of the Appellant contended that it was a joint venture arrangement, whereby both the parties had agreed to jointly develop a property situated at Prabhadevi by demolishing an existing structure. Mr.Aney, the learned Senior Counsel pointed out that as per the aforesaid MOU, the share would be on 50:50 percentage sharing basis. Mr.Aney, the learned Senior Counsel pointed out that before the aforesaid development could take place, various other formalities had to be completed as mentioned in Clause-2 of the aforesaid MOU. It is the case of the Appellant that pursuant to the aforesaid joint venture agreement, the Appellant had contributed a sum of Rs.31 lacs on 10th November,2004 and another sum of Rs.1 Crore on 18th May,2005 and lastly Rs.1.5 Crores on 25th April,2006. Mr.Aney, the learned Senior Counsel contended that part of the aforesaid amount was used to pay off the Everest Construction Company as well as Lake View Developers and even thereafter for the purpose of obtaining retirement deed from Satinder Pal Investment Pvt.Ltd. 4. Mr.Aney, the learned Senior Counsel pointed out that when his client came to know about a public notice issued by the proposed buyer Everest Construction Co. on 3rd July,2007, immediately a notice was given by Appellant’s Advocate stating that there is a joint venture agreement subsisting between the Rajesh Builders Group and Dedhia Group. :5: Thereafter within a period of four days, the Appellants through their Advocate invoked the Arbitration clause seeking arbitration. Thereupon, a letter was received from the Advocate of Ravilal Dedhia dated 17th July,2007 requesting inspection of the purported MOU and other relevant documents. Similarly, even the Advocate for Respondent Nos.2 and 3 sought inspection of the said MOU and denied that Respondent Nos.2 and 3 had executed any such MOU. 5. Thereafter, the Appellant’s Advocate on 21st July,2007 wrote to the said Shantilal Vershi Haria requesting inspection of the said MOU. To the said letter of Appellant’s Advocate, on 24th July,2007 Mr.Shantilal Haria sent a reply stating that the original MOU which was in his possession will be offered for inspection to both the sides. 6. In the meanwhile on 7th August,2007, the Arbitration Petition came to be filed under Section 9 of the said Act for an injunction pending the arbitration. In the said proceedings, on 17th August,2007, Mr.Haria filed an Affidavit stating that the Respondents had misrepresented and had taken a letter dated 17th July,2007 as if the original MOU was in his possession and stated that the same was not in his possession. On the very same day, the Respondent No.1 also filed an Affidavit denying any agreement between Everest Construction Co. and the :6: Petitioners, however, in the said Affidavit, it is admitted by the Respondent No.1 that the Rajesh Builders Group had paid him Rs.2.81 Crores but the same was only by way of a friendly loan. On 23rd August,2007, the Respondent No.1 had filed an Affidavit giving details of payments made. On 27th August,2007 Mr.Haria had filed a further Affidavit stating that the earlier Affidavit was filed without reading it and also the original MOU was kept with him with the consent of both parties. However, the original MOU was not traceable, as the same was misplaced in his office. In the aforesaid second Affidavit dated 27th August,2007 Mr.Haria also stated that he had made an incorrect statement in his earlier Affidavit that the MOU was not in his possession and as such he prayed for withdrawal of his earlier Affidavit. 7. Finally, all the parties had argued before the learned Single Judge with regard to the Arbitration Petition filed under Section 9 of the Act, and the learned Single Judge by his detailed judgment and order dated 27th August,2007 had criticised the conduct of the Arbitrator and found that there were serious disputes between the parties as to the very existence of the MOU. The learned Single Judge had expressed doubt about any right, title and interest in property so created in favour of the Rajesh Builders Group. Under these facts and circumstances :7: of the case, the learned Single Judge had dismissed the above Arbitration Petition filed under Section 9 of the Act. 8. Aggrieved thereby, the present Appeal has been filed by the Appellant and also a Notice of Motion No.3830 of 2007 has been taken out for an appointment of a Court Receiver and injunction restraining the Respondents from creating any third party rights in the said property. On 31st October,2007, the above Appeal was admitted by the Division Bench, however no ad-interim or interim reliefs were granted. 9. In the aforesaid Notice of Motion before the Appellate Court, both the Ravilal Dedhia and Purvi Dedhia had filed two separate Affidavits-in-reply both dated 10th December,2007 and had alleged that the Respondent had in fact entered into a joint venture agreement on 31st August,2007 with one Gagangiri Nirmal Pvt.Ltd to develop the said property. On 25th January,2007, a public notice was duly published that the Respondent No.4 and Gagangiri Nirman Pvt. Ltd. were negotiating for a joint development of the said property. In response to the same, on 30th January,2008, the learned Advocate for the Appellants wrote a letter to the Advocate who issued a public dated 25th January,2008 affirming that the MOU dated 8th November,2004 was valid and subsisting and that the Appellants had filed a lis :8: pendens notice and the Respondent No.4 was intending to defeat the rights of the Appellants in the property even though the Notice of Motion was pending. 10. Mr.Aney, the learned Senior Counsel pointed out that the learned Single Judge had erroneously dismissed the aforesaid Arbitration Petition filed under Section 9 of the Act and in fact the learned Single Judge ought to have granted necessary reliefs under Section 9 of the Act. Mr.Aney, the learned Senior Counsel strongly contended that the aforesaid original MOU was duly executed on a stamp paper of Rs.100/- on 8th November,2004 and both the parties had kept it with the learned Arbitrator Mr.Haria in safe custody. Mr.Aney contended that merely because the learned Arbitrator had himself misplaced the original MOU, it does not mean that there is no MOU between the Ravilal Dedhia Group and Rajesh Builders Group. Mr.Aney also contended that there is no dispute that his clients had paid total sum of Rs.2.81 Crores to the said Ravilal Nanji Dedhia. Therefore, Mr.Aney contended that the said amount was utilised by Ravilal Nanji Dedhia Group to remove various obstacles as mentioned in clause-2 of the MOU. Therefore, Mr.Aney stated that now after utilising the said amount Ravilal Nanji Dedhia Group cannot back track and that they have to act on the basis of the said MOU. :9: 11. Mr.Aney also emphasised that pursuant to the said joint venture agreement, the Everest Construction Company as well as Lake View Developers and Satinder Pal Investment Pvt.Ltd. have retired and only Dedhia Group and Rajesh Builders Group remained, so as to enable the Rajesh Builders Group and Dedhia Group to jointly develop the said property. 12. Mr.Aney, the learned Senior counsel having regard to the aforesaid facts and circumstances of the case and also in view of the categorical Affidavit of the learned Arbitrator Mr.Haria that the duly engrossed original MOU was with him and the same has been misplaced in his office and as such the Court ought to protect the interest of the Appellants and the learned Single Judge had committed a serious error in not granting the relief sought in the said proceedings. 13. Mr.Madon, the learned Senior Counsel appearing on behalf of Respondent Nos.1 and 2 very strongly contended that there is absolutely no MOU dated 8th November,2004. He pointed out that when the inspection of the purported original MOU dated 8th November,2004 was sought, neither the Appellants nor the learned Arbitrator could show the original MOU duly signed by all the parties. Mr.Madon contended :10: that the purported MOU appears to be a concocted document, in the sense, if in reality a MOU had been executed on 8th November,2004 involving such a huge sum and wherein a Chartered Accountant Mr.Haria has been appointed as the sole Arbitrator and both the Groups consists of well versed businessmen and they would obviously have atleast a xerox copy of the original MOU which would have clearly indicated that such an MOU has been executed on 8th November,2004. 14. Mr.Madon, the learned Senior Counsel contended that finally what is sought to be relied upon on is a document which was stored in the computer of Mr.Haria and a print-out which was also relied upon before the learned Single Judge and the same is also relied upon before us. The said print-out indicates that the draft document has been sent by one Mr.Dinesh Chandra to Mr.Shantilal V. Haria, Chartered Accountant on 8th November,2004 at 11.45 a.m. The said communication also indicates that the document has been saved as "ecc-Memorandumbyharia". Mr.Madon, also pointed out that neither the learned Arbitrator nor the Appellants categorically state that as to when the aforesaid MOU was exactly executed, in which place and at what time. Mr.Madon stated that all these facts are very relevant since, the said document appears to be a draft. It only mentions _____day (blank) of November,2004. Similarly, at the end of said document also it does not indicate that :11: the same was signed by any of the parties. Mr.Madon also contended that the Dedhia Group did not have a copy of this document. Mr.Madon, the learned Senior Counsel pointed out that even though the aforesaid MOU was drafted by Mr.Haria the same is not averred by him in both the Affidavits filed by him. 15. Mr.Madon also pointed out that the aforesaid sum of Rs.2.81 Crores had been advanced as a loan by the Appellants to Ravilal Nanji Dedhia individually and out of the said amount, a sum of Rs.1.5 Crore has been returned back to the Appellants as far back as on 5th May,2006. Mr.Madon also produced before us all the tax returns as well as the Profit and Loss business loss accounts which clearly indicate that the entire amount of Rs.2.81 Crores was received by Ravilal Nanji Dedhia as and by way of a loan and in fact out of the said amount of Rs.2.81 Crores, a sum of Rs.1.5 Crores have been returned back as mentioned hereinabove. Mr.Madon emphasised that all these facts clearly indicate that there is no real MOU. If the Appellant wants to invoke the said Arbitration clause, then the Memorandum of Undertaking has to exist. Under these facts and circumstances of the case Mr.Madon contended that the judgment and order passed by the learned Single Judge was fully justifiable and this Court ought not to interfere with the same. :12: 16. Mr.Madon also referred to the certain following serious discrepancies in the purported MOU which was annexed to the Arbitration Petition under Section 9 and the Arbitration Application filed under 11(6) of the said Act. Both the above Arbitration Petition and the Arbitration Application have been filed by the Appellants. Difference Difference Difference between MOU annexed to the Arbitration between MOU annexed to the Arbitration between MOU annexed to the Arbitration Petition Petition Petition No.336 and annexed to the Arbitration No.336 and annexed to the Arbitration No.336 and annexed to the Arbitration Application Application Application and Additional Affiavit of Respondent and Additional Affiavit of Respondent and Additional Affiavit of Respondent No.5. No.5. No.5. Annexed Annexed Annexed to the Petition to the Petition to the Petition Sr.No. Page Para No. Annexed to the Petition No. 1. 1 heading thereof be mean and mean and mean and include include include 2. 1 heading to the context or or or meaning thereof be mean include their respective 3. 1 heading Administrators and assigns assigns assigns 4. 3 Main The party of Second Second Second part Agree shall cause para 2(e) 5. 4 Para 2 Total permissible FSI as per Bombay Municipal Bombay Municipal Bombay Municipal Corporation Corporation Corporation rules 6. 6 Para 9 Shall be referred to any any any arbitration under 7. 6 Execution Shri Ravilal Nanji Dedhia clause :13: Annexed Annexed Annexed to the Application and to the Affidavit of to the Application and to the Affidavit of to the Application and to the Affidavit of Shantilal Shantilal Shantilal Haria Haria Haria Sr.No. Page Para No. Annexed to the Application No. and to the Affidavit of Shantilal Haria 1. 1 heading thereof be deemed to deemed to deemed to include include include 2. 1 heading to the context and and and meaning thereof be deemed deemed deemed toto to mean and include their respective 3. 1 heading administrators and assignors assignors assignors 4. 3 Main The party of First First First part Agree shall cause para 2(e) 5. 4 Para 2 Total permissible FSI as per BMC BMC BMC rules. 6. 4 Para 9 Shall be referred to arbitration under 7. 6 Execution Shri Ravilal Nanji Dedhia clause Chairman Chairman Chairman of Ravilal Nanji of Ravilal Nanji of Ravilal Nanji dedhia dedhia dedhia Gr Gr Gr 17. Mr.Madon, the learned Senior Counsel in that behalf referred to a judgment of the learned Single Judge in the case of M/s.Charu Trading Company M/s.Charu Trading Company M/s.Charu Trading Company Pvt.Ltd. Pvt.Ltd. Pvt.Ltd. Vs. M/s.Saimangai Investrade Ltd. & Ors. Vs. M/s.Saimangai Investrade Ltd. & Ors. Vs. M/s.Saimangai Investrade Ltd. & Ors. inin in Arbitration Petition No.479 of 2001 decided on Arbitration Petition No.479 of 2001 decided on Arbitration Petition No.479 of 2001 decided on 17th 17th 17th September,2001 September,2001 September,2001, wherein, the learned Single Judge had categorically held that the Courts can intervene only in those cases provided by the Act and in respect of the same, where there is an Arbitral Agreement in terms of Section-7 of the Act. :14: 18. Mr.Madon also referred to another judgment of the learned Single Judge in the case of Shri.Pramod Shri.Pramod Shri.Pramod Chimanbai Chimanbai Chimanbai Patel Vs. M/s.Lalit Constructions & Anr. Patel Vs. M/s.Lalit Constructions & Anr. Patel Vs. M/s.Lalit Constructions & Anr. 2002(4) 2002(4) 2002(4) ALL MR 345, ALL MR 345, ALL MR 345, wherein the learned Single Judge had clearly held that unless and until the document is signed by both the parties, there cannot be any arbitration agreement, as per Section 7 of the Act. The learned Single Judge had taken a view that both the parties have to sign the agreement, failing which there cannot be any agreement which can be acted upon and treated as an Arbitration Agreement. 19. Under the aforesaid facts and circumstances of the case, Mr.Madon stated that the judgment and order passed by the learned Single is fully justifiable and this Court ought to dismiss the above Appeal. 19. Mr.Madon also referred to the judgment of the Hon’ble Supreme Court in the case of Atul Singh and Atul Singh and Atul Singh and Ors. Ors. Ors. Vs. Sunil Kumar Singh and Ors. (2008)2 SCC Vs. Sunil Kumar Singh and Ors. (2008)2 SCC Vs. Sunil Kumar Singh and Ors. (2008)2 SCC 602, 602, 602, especially paragraph No.16, which makes it clear that unless and until there is an agreement as defined under Section 7 of the Act there cannot be any arbitration between the parties. 20. Mr.Samdani, the learned Senior Counsel appearing on behalf of Respondent Nos.3 and 4 referred to Section 7 of the Act, which reads as under: :15: 7.7.7. Arbitration agreement Arbitration agreement Arbitration agreement: (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in - (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. 21. Mr.Samdani, the learned Senior Counsel also pointed out, that an arbitration agreement will have to be in writing, which is mandatory as per Section 7(3) of the said Act. He also pointed out Section 7(4) of the Act, that if the arbitration is in writing then it should be a document signed by the parties. The contention of Mr.Samdani is that in the instant case, whatever document which has been produced before the Court does not contain any signature of any party. In fact, it should contain the signatures of both the parties. He also referred :16: to Section 2(h) of the Act, which defines "party" to the effect that the party means a party to an arbitration agreement. Mr.Samdani pointed out that the aforesaid expression of Ravilal Nanji Dedhia Group and Rajesh Builders Group contain various companies, partnership firms etc. and it is a very anomalous situation if it is were to be stated that only Mr.Ravilal Nani Dedhia could sign on behalf of the entire Group and similarly Rajesh Raghavji Patel could sign on behalf of the entire Rajesh Builders Group. The purported agreement should indicate as to who are the members of the Group and who had authorised the aforesaid Ravilal Nanji Dedhia to sign on behalf of the entire Group and also who had authorised Rajesh Raghavji Patel to sign on behalf of the entire Rajesh Builders Group. Hence, Mr.Samdani contended that in the instant case, there is no established arbitration agreement as contemplated under the provisions of Section 7 of the Act. In that behalf, Mr.Samdani referred to and relied upon a judgment of the learned Single Judge in the case of Jeweltouch Jeweltouch Jeweltouch (India) Pvt.Ltd. Vs. Naheed Hafeez (India) Pvt.Ltd. Vs. Naheed Hafeez (India) Pvt.Ltd. Vs. Naheed Hafeez Quaraishi Quaraishi Quaraishi (Patrawala ) & Ors. 2008(3) Mh.L.J.54 (Patrawala ) & Ors. 2008(3) Mh.L.J.54 (Patrawala ) & Ors. 2008(3) Mh.L.J.54 and also another judgment of the learned Single Judge in the case of Shaw Wallace Distilleries Ltd. Vs. Shaw Wallace Distilleries Ltd. Vs. Shaw Wallace Distilleries Ltd. Vs. Kamal Kamal Kamal Wineries Wineries Wineries & Anr. in Arbitration Petition No.131 & Anr. in Arbitration Petition No.131 & Anr. in Arbitration Petition No.131 of of of 2003 decided on 9th June,2003 2003 decided on 9th June,2003 2003 decided on 9th June,2003, wherein the learned Single Judge had categorically held that there has to be a finding recorded that there exists an :17: arbitration agreement between the parties which is necessary for making an interim order under Section 9 of the Act. Mr.Samdani also referred to a Division Bench judgment of this Court in the case of Oberai Oberai Oberai Construction Construction Construction Pvt.Ltd. Vs. Worli Shivshahi Co.Op. Pvt.Ltd. Vs. Worli Shivshahi Co.Op. Pvt.Ltd. Vs. Worli Shivshahi Co.Op. Housing Housing Housing Society Ltd. in Appeal No.619 of 2007 In Society Ltd. in Appeal No.619 of 2007 In Society Ltd. in Appeal No.619 of 2007 In Arbitration Arbitration Arbitration Petition (L) No.233 of 2007 decided on Petition (L) No.233 of 2007 decided on Petition (L) No.233 of 2007 decided on 30th 30th 30th January,2008, January,2008, January,2008, wherein also this Court had held that an Application under Section 9 of the Act can be entertained only if there is an arbitration agreement, then only