1 mss CHS1584 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1584 OF 2003 IN EXECUTION APPLICATION NO. 17 OF 1998 IN AWARD NO. 75 OF 1984 ALONGWITH JUDGES ORDER NO. 294 OF 2003 PRADEEP KUMAR ANAND & ANR. .. PLAINTIFFS Vs. DILIP ANAND & ANR. .. DEFENDANTS Mr. Shailesh Shah a/w Gautam Ankhad and Ms. Shruti Maniar & Chetna Karande i/b Solomon & Co. for the respondents in CHS 1584/03 and for applicants in JO 294/03 (Org. Claimant No. 2) Mr. Zubin BehramKamdin a/w M. J.Majra i/b M.G. Gaude for claimants 1,3 & 4. CORAM: S.C.DHARMADHIKARI, J. DATED: 17/12/2011 ORAL JUDGMENT: This Chamber Summons as also the Judges Order have been heard 2 mss CHS1584 together and were reserved for orders today. 2. As far as Judges Order is concerned, it has been moved by Claimant No. 2 seeking possession of an immovable property namely entire ground floor of Anand Kutir Bunglow, Plot No. 3/B, situate at Bandra Town Planning Scheme No. VI, 16th Road, Khar, Bombay 400 052. The affidavit- in-support of this Judges Order refers to an Award dated 31st January,1984 which has been made a decree of this court on 18th March, 1996 by an order passed on Notice of Motion No. 1875 of 1985. The claimant No. 2 states that he is entitled to the entire ground floor as described above admeasuring 1300 sq. ft. in terms of this award. He states that the decree was put in execution and since more than two years expired, a notice was issued under Order XXI Rule 22 of the Code of Civil Procedure 1908 at the instance of the claimant No. 2. By an order dated 4th December, 2002 that notice has been made absolute. A warrant of possession dated 31st March, 2003 under Order XXI Rules 35 and 36 of the Civil Procedure Code requiring the Sheriff of Mumbai to deliver possession to claimant No. 2 was issued. However, the wife of claimant No. 1, Neelam Pradeep Kumar Anand was present at the premises when the warrant was to be executed. She spoke to the the other claimant Nos. 1,3 and 4. They pointed out that Mr. Pradeep Anand and Anup Anand particularly stated that one Happy Hours Centre is 3 mss CHS1584 running a trust for Spastic children from the said premises. This is conducted by Lala Harichandji Anand and Shrimati Inder Kaur Anand Charitable Trust. Thus, it is the case of claimant No. 2 that claimant Nos. 1 and 4 are refusing to vacate the premises. That is how this Judges Order for forcible possession has been moved. 3. At this stage, reference must be made to an affidavit dated 17th November, 2003 which has been filed to oppose this Judges Order. In this affidavit claimant Nos. 1,3 and 4 stated that claimant No. 2 and his family members were in possession of 700 sq. ft. of the existing structure and the respondents to the Judges Order had to give another 600 sq. ft. on payment of Rs.30,000/- to them. However, the claimant No. 2 had informed the deceased Lakshmichand Harichand Anand that he does not intend to stay in the ground floor premises and sought for separate accommodation elsewhere. The deceased father Lakshmichand had a flat in Rajpipla Co- operative Housing Society at Linking Road, Santacruz (West) Mumbai, admeasuring 1200 sq. ft. or thereabout which was owned by Lakshmichand Anand (HUF). That flat was got vacated from the licensees. On 19th September, 1984 or thereabout claimant No. 2 Dilip Anand surrendered the 700 sq. ft. in his possession in Anand Kutir to the deceased parents and occupied the flat in Rajpipla Co-operative Housing Society. He has been 4 mss CHS1584 since then residing in this flat with his family members. Thus, there is complete accord and satisfaction of the award. The decree though passed in the award on 18th March, 1986 was never intended to be executed and, therefore, neither the award was registered nor decree was drawn or sealed. The co-parceners of Lakshmichand Anand HUF by a writing dated 12th June,1987 had given up their right, title and interest in Rajpipla Flat in favour of claimant No. 2. 4. It is then contended that the deceased father Lakshmichand registered one Public Charitable Trust named as above under Bombay Public Trusts Act, 1950. This trust was registered in the year 1982 or thereabout. The said trust has been running a school “Happy Hours” for spastic and cerebral palsied children from the premises being claimed by claimant No. 2. Thus at a belated stage and with the view to uproot this trust and children that the judges order has been moved. The activity which is conducted from the premises is charitable in nature and there is no question of any profit or commercial motive . For all these reasons it is submitted that the Judges Order be dismissed. 5. Equally it was pointed out that Suit No. 4437 of 1997 has been filed by Dilip Anand in this court for administration of the estate of the deceased Lakshmichand. That suit is also pending. A copy of the written statement 5 mss CHS1584 of the claimants herein in that suit has been annexed and, therefore, it is contended that no order be passed in favour of claimant No. 2. 6. Subsequently my attention is invited to Chamber Summons No. 1584 of 2003 in which the claimant Nos. 1, 3 and 4 have sought the following reliefs; “(a) That this Hon’ble Court be pleased to set aside and/or cancel the Warrant of Possession dated 31st March, 2003 issued by this Hon’ble Court in Decree dated 18th day of March, 1986 in Award No. 75 of 1984; (b) that the Execution Application No. 17 of 1998 in Decree dated 18th day of March,1986 in Award No. 75 of 1984 be set aside and/or cancelled; (c) that pending the hearing and final disposal of the Chamber Summons, all execution proceedings under Execution Application No. 17 of 1998 and Warrant of Possession dated 31st March, 2003 issued by this Hon’ble Court be stayed; (d) For interim and ad-interim reliefs in terms of prayer (c) above; (e) for such further and other reliefs as in the facts and circumstances of the case this Hon’ble Court may deem fit; 6 mss CHS1584 (f) for the costs of this Chamber Summons.” 7. This chamber summons has been moved on 13th November, 2003. A very exhaustive affidavit has been filed in which it is pointed out that the award was never intended to be executed and none of the claimants or respondents had got it registered. It has been pointed out that during the lifetime of the father Lakshmichand he was desirous of developing the said property, however, there were differences between the brothers namely sons of the deceased Lakshmichand with regard to this development. The dispute was, therefore, referred to one Gurbaksh Singh Gandhi, since deceased, for Arbitration. Mr. Gandhi acted as a Sole Arbitrator and he entered upon Reference on 31st May, 1983 and published the Award on 31st January, 1984. After referring to the entitlement of the parties under the award, what has been contended is that this award has been filed in this court, notices were issued by the Prothonotary and Senior Master to all parties and later on a decree was passed in terms of the same. It is contended that the deceased had started several partnership firms in which all these sons and their wives were partners but there were certain differences with the father. There was a separation from the family business from October, 1979. There was an independent business which was set up. Though there were differences and 7 mss CHS1584 the relations were not cordial, yet, the claimant No. 2 and his family continued to occupy the premises on the ground floor. Later on claimant No. 2 told the father that he does not wish to reside in Anand Kutir property and asked for separate residential accommodation. However, the father had no place to offer at that time. The operative part of the award is then referred to and it is stated that subsequently the Rajpipla flat came to be given to claimant No. 2 and his family. It was in the aforesaid circumstances that claimant No. 2 gave up his entitlement and did not take possession of additional 600 sq. ft. premises given to him under the award and the respondents did not pay Rs.30,000/-. It is stated that in July, 1984 ICI Ltd. vacated the Rajpipla flat and it was renovated. Claimant No. 2 insisted that the said flat admeasuring 1300 sq. ft. approx. be given to him and his family in lieu of 1300 sq. ft. in Anand Kutir Bungalow given to him under the said award. The father with a view to have peace amongst the family members handed over possession of Rajpipla flat on 9th September, 1984 to claimant No. 2 Dilip and his wife in complete discharge and satisfaction of the award dated 31st January, 1984. Thus, Dilip and his wife voluntarily surrendered and handed over vacant and peaceful possession of 700 sq. ft. premises in Anand Kutir Bungalow to the father and shifted their residence to Rajpipla flat. It is in these circumstances and in furtherance of 8 mss CHS1584 the family arrangement that the ground floor premises of Anand Kutir bungalow and additional 600 sq. ft. reverted back to Lakshmichand. Thus the award stood fully implemented and satisfied. 8. It is then contended that the father created public trust in memory of the grand parents which runs school. Further the father as a Karta of HUF persuaded all co-parceners to give up their respective right, title and interest in the Rajpipla flat to have peace and harmony amongst the co-parceners. Therefore, Dilip and his wife Sujata Anand under the family arrangement, in full discharge and satisfaction of the decree and the award accepted flat C-7 in the Rajpipla Co-operative Housing Society. A writing was executed on 12th June, 1987 whereunder the co-parceners gave up their right, title and interest in the Rajpipla flat. 9. It is then contended that claimant No. 2 further insisted and asked his father that he does not intend to continue as member of the HUF, therefore, as Karta of HUF the deceased father paid Rs.6 lacs and a writing dated 13th August, 1992 was executed. The other members of the HUF were also paid Rs.1,25,000/- each under this family arrangement. It is in these circumstances that claimant No. 2 has not applied for any relief in execution of the decree. For all these reasons and accusing claimant No. 2 of suppressing certain facts and particularly that he participated in the 9 mss CHS1584 arbitration proceedings that claimant Nos. 1, 3 and 4 seek the above reproduced reliefs. 10. This chamber summons was opposed by claimant No. 2. He denied that he has given up his right, title and interest in the ground floor premises in Anand Kutir bungalow in lieu of Rajpipla flat. It is stated that it is not open to the other claimants to argue to this effect because not only has the executing court made a notice under order XXI Rule 22 of Civil Procedure Code absolute but has also recorded that Chamber Summons No. 369 of 1999 moved by these very parties seeking to mark the decree and the award as satisfied, has been withdrawn on 25th June, 2001. Once this chamber summons has been withdrawn, then, the version that the Award and the Decree stands fully satisfied cannot be raised. The entire version, therefore, is not tenable. The flat in Rajpipla Co-operative Housing Society belonged to Lakshmichand Harichand Anand HUF that came to the share of the said Dilip. On partition of the HUF and in consideration of his giving up his rights in the HUF, that the Rajpipla flat came to him and that transaction has no connection with the rights under the award. The property under the award had to come to claimant No. 2 Dilip in terms of the award. If that award has been made a decree of the court and that is not now put in execution, then, there is no question of the other parties arguing that the 10 mss CHS1584 award and the decree has been already satisfied or that the said Dilip has given up his right, title and interest in the ground floor premises in Anand Kutir. This argument is not tenable because the chamber summons has been already withdrawn and that chamber summons had sought identical reliefs. It is in these circumstances that Dilip Anand filed this affidavit and particularly urging that the chamber summons is not maintainable as the applicants are styling themselves as trustees of Lakshmichand Harichand Anand and Smt. Inder Kaur Anand Charitable Trust . The trustees have no right or authority to occupy the premises. These very parties made a statement on affidavit that in their personal capacity they have no right, title and interest in the premises referred to in para 3(d) of the operative part of the award dated 31st January, 1984 and Notice No. 125 of 1998 is, therefore, referred to. For all these reasons it is submitted that the chamber summons be dismissed. 11. Bearing in mind this controversy between the parties and since the core issue was whether the award can be termed as having been satisfied that on 19th of March, 2005, an order came to be made on this chamber summons. That order reads as under:. “In the present case award-decree is sought to be executed is of 11 mss CHS1584 31.1.1984. It is the case of the applicant nos. 1 to 4 that the said decree should not be executed as against the ground floor premises of 1300 sq. ft. situated on ground floor of Anand Kutir, 16th Road, Khar, Mumbai. It is the case of the applicant that under the settlement arrived at by and between the parties in lieu of the ground floor premises at Anand Kutir Bungalow the applicants were handed over a premises admeasuring about 1300 sq. ft. Flat No. C-7 at Santacruz (West), Bombay and thus he has given up his right, title and interest in respect of the said ground floor in the award decree dated 31.1.2003. It is an admitted position before me that the said premises at Santacruz has been handed over to the decree holder herein on 9.9.1984 and it is also an admitted position that on handing over the said premises at Santacruz, the original decree holder has vacated the ground floor premises of Anand Kutir. 2. However, after about 14 years that the execution proceedings is sought to be initiated by the decree holder purportedly contending that he is entitled to the ground floor premises at Anand Kutir Bungalow which is over and above the premises at Santacruz. It is his case that the Santacruz property was not handed over to him in 12 mss CHS1584 lieu of which he is entitled to under the decree. According to him, if different had been there the judgment debtor would have applied for recording satisfaction of the decree and since the judgment debtor has not done so and even a chamber summons being Chamber Summons No. 369 of 1991 having been withdrawn, they are not entitled to raise the aforesaid contention. At present the applicants are the trust who are running the school at the ground floor premises. It is the case of the applicant that the said premises has been handed over by the father to the applicant to run the aforesaid school. The will has been executed in respect of the handing over of the said premises. The probate proceedings in respect of the said will are pending in this court. In the aforesaid circumstances, it is not possible to determine the rights of the applicant in a summary manner on the basis of the affidavits and oral arguments even if the case of the respondent has to be accepted that the Santacruz property is not handed over to him in lieu of the ground floor premises at Anand Kutir to which he is entitled to under decree, the same will have to be considered only on the basis of oral evidence led by the parties. In view thereof, I adjourn the chamber summons for recording evidence. The chamber summons along with the Judge’s Summons are accordingly adjourned 13 mss CHS1584 to Court for recording evidence.” 12. It appears from the record that being aggrieved and dissatisfied with this order an appeal was preferred by claimant No. 2 Dilip being Appeal No. 370 of 2006. That appeal has been disposed of by the Division Bench and it has framed three points for determination and consideration in the execution proceedings. They are as under: (a) Whether the decree is a nullity because the award was not registered under the Indian Registration Act? (b) Whether claimant Nos. 1,3 and 4 prove any right to the premises being the ground floor of Anand Kutir bungalow which is the subject matter of the award? (c) Whether the award stood fully implemented on giving to the said Dilip, the Rajpipla flat in lieu of the ground floor premises in Anand Kutir bungalow as alleged by the respondents? 13. From the record it further appears that the court appointed commissioner to record evidence of parties on these questions and points. Accordingly, the parties filed their affidavits in lieu of examination-in-chief 14 mss CHS1584 and were extensively cross-examined. Essentially the cross-examination of the claimant No. 2 Dilip has been relied upon by the other claimants who have moved this chamber summons Dilip Anand relied on the version of Pradeep Kumar Anand in Cross-Examination, who has stepped in the witness box. On 4th of February, 2008 the court has recorded some statements with regard to the wills dated 31st July, 1995 and 15th December, 1997 but it is not necessary to advert to these aspects in further details. In Chamber Summons No. 1584 of 2003, this Court passed the following order on 14th June, 2010: “Heard both sides. The parties state that the Commissioner has completed recording of evidence and has filed his report. There appears to be an objection regarding admission of five documents which have been marked XI to X5. The counsel have agreed that since evidence will have to be led for marking documents, the documents, if found admissible, will be marked in the course of arguments. Place the matter on 7th July 2010 for arguments on the chamber summons. Liberty to file compilation of the documents. The compilation to be exchanged.” 15 mss CHS1584 14. Mr. Shah, learned Senior Counsel appearing on behalf of Dilip Anand to oppose this chamber summons has given a list of material dates and events. It is not necessary to refer to each one of them but, suffice it to indicate that the trust was set up by 22nd of October,1982. The documents to this effect have been produced and marked as exhibits. 15. Mr. Shah submits that certain disputes arose between Anand brothers on one hand and their parents Lakshmichand Anand and Mrs. Brijrani Lakshmichand Anand. The same were referred to arbitration of Shri Gurbaksh Singh Gandhi on 31st of May,1983. It is stated that Pradeep Anand filed a statement of claim on behalf of claimants being duly authorized in that behalf before the learned Arbitrator. However, Mr. Shah submits that Pradeep had no such authority and this court should therefore, look into the evidence that has been recorded by the commissioner in great details. Mr. Shah’s submission is that even if the award was made by the Arbitrator and there was a partial dissolution of the Lakshmichand Anand HUF and Dilip was given possession of Rajpipla flat, yet, that is distinct and separate claim of the said Dilip and cannot be said to be in satisfaction of the entitlement under the award. Mr. Shah has invited my attention to an affidavit filed by Pradeep Anand on 20th September, 1985 in Notice of 16 mss CHS1584 Motion No. 1875 of 1985 in which it has been stated that there was no challenge to the award. Further, the cross-examination in the present proceedings by Pradeep would reveal that nobody challenged even the order passed in the notice of motion. Once there was a decree made in furtherance of the award and that all claimants were aware of the consequences flowing from it, then, it is not possible to accept the arguments of the other claimants that Dilip voluntarily gave up his entitlement in the award in lieu of Rajpipla flat. The other brothers got benefits and entitlement under the same award. Mr. Shah has invited my attention to an answer given in the cross-examination by Pradeep and particularly to questions Nos. 90, 91 and prior thereto question No. 61 in which he categorically admits that the award and decree were against the father and mother. The premises in Anand Kutir, as far as other claimants are concerned, have been handed over and that once under the said unregistered award, the other claimants got their entitlement and benefits, then, it is no longer open for them to argue that the award was not intended to be acted upon and, therefore, was not got registered by the parties. 16. Coming to the partial Deed of Dissolution dated 12th of June, 1987 Mr. Shah contends that this was only to record the oral dissolution of 17 mss CHS1584 Lakshmichand Anand HUF dated 9th September, 1984. This Deed recorded that Rajpipla flat which was already in possession of Dilip Anand and his wife be allotted to Dilip and be treated as his sole property. There was no occasion for the parties to refer to the arbitral award or the reference inasmuch as this was a Deed of Dissolution in part of the HUF; that this was not a complete accord and satisfaction of the Award and Decree, is further corroborated by a Deed of Partition dated 13th of August, 1992. That completely dissolved the HUF and under this agreement Dilip Anand and all other brothers received money and it was confirmed that Dilip Anand was exclusively in possession the Rajpipla flat. Mr. Shah’s submission is that this is subsequent to the award and decree made in furtherance thereof, yet, they are separate and distinct claims from each other. The court, therefore, must not go by the fact that these deeds satisfied the claims of Dilip under the award. The conduct of claimant Nos. 1,3 and 4 is such that despite such deeds and documents and which are subsequent to the award, they obtained possession of properties which were earmarked for them under the award. Once the Anand Kutir property is admittedly not part of the father’s HUF but it is the individual property as stated in answers to question Nos. 98 to 100 then, the argument that the subsequent events be looked into for marking the award and decree ‘satisfied’ has no merit, according to Mr. 18 mss CHS1584 Shah. 17. It is next submitted by Mr. Shah that Equally untenable are the arguments of the other side with regard to the alleged will of Lakshmichand. Lakshmichand is stated to have left a will dated 31st July, 1995. Lakshmichand expired on 24th August, 1995. Dilip has filed Suit No. 4437 of 1997 for administration of the estate of the deceased Lakshmichand. Dilip claims his right as an owner of the ground floor premises of Anand Kutir and it is only during the course of correspondence between Dilip and the trustees and particularly a letter dated 28th August, 1997 that it came to the notice of Dilip that his entitlement under the award is sought to be jeopardized. It is in these circumstances that in the cross-examination of Pradeep Anand he was asked specifically that neither in the advocate’s letter