- 1 - 27.arbp.39.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.39 OF 2011 Sarosh Soli Framroze ..Petitioner -Versus- ..Manish Thakkar @ Manish H. Palav ..Respondent .......... Ms.Dipti Panda a/w. Mr.S.U.Uttam i/b Pardiwala S. Uttam & Co. for the Petitioner. Mr.Dinesh P. Guchia i/b Dinesh P. Guchiya & R.K.B.Haruka for the Respondent. .......... CORAM : S.J. VAZIFDAR, J. DATE : 13TH JUNE 2011. P.C. 1 This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the said Act’). 2 By an order dated 17th February 2011 in Arbitration Application No. 3 of 2011, an Arbitrator was appointed. 3 The parties had entered into an agreement dated 15th February 2010. Under the terms thereof, the Respondent was to repay a sum of - 2 - 27.arbp.39.11 Rs.89 lacs in four equal installments of Rs.22,25,000/-, the last instalment being payable on 22nd May 2010. 4 The cheques issued by the Respondent towards repayment were dishonoured on presentation. It is not the mere non-payment of the amount that persuades me to pass is order. The nature of the Respondent’s defence has persuaded me to do so. 5 The Respondent denies that having executed the agreement or issued the cheques. He does not deny his signature on the cheques, but states the he was in the practice of signing the cheques in blank and leaving them with his staff for enabling them to make certain payments. He further alleges that the Petitioner somehow or the other in collusion with his staff obtained the cheques and fraudulently presented them for payment. It would be convenient to set out paragraph 30 of the affidavit-in- reply relied upon by the learned counsel appearing on behalf of the Respondent, which reads as under : “(30) With reference to the para No.4 clause (ee) of the petitioner, I say that it was shocked & surprised for me when I received arbitration application for the sole arbitrator and I seen alleged agreement dt.15-02-10 and which I had never signed on 15-02-10 or any other date even I had not seen alleged agreement prior to receiving arbitration application receive from the Ld. Arbitrator and therefore question of undertook to pay to the petitioner - 3 - 27.arbp.39.11 alleged dues and handing over four post dated cheques does not arise at all. In fact I had not issued 4 post dated cheques, the petitioner siphoned / stolen by way of collusion with any of my staff member or any manner which best known to him and took the blank cheques from my office because I had kept blank signed cheque book merely for the purpose of petty expenses and since long I have not take care of that blank a/c after vacating my Wadala Office. I further say that all initials and signatures of mine are forged / framed by the petitioner and I am not binding with the terms & conditions of alleged agreement including contents of clause 7 of any other contents as the same is forged / framed documents. In this connection, I say and submit that I have instructed my advocates to take appropriate action and file necessary civil and criminal proceedings as applicable in the matter including seize of alleged agreement and send to handwriting experts.” 6 The Respondent has not filed any complaint or proceedings against his employees. He has not even addressed any correspondence to them in this regard. It is contended that after his affidavit-in-reply was filed, some proceedings may have been taken. Even assuming that is so, there is no explanation why the same had not been done earlier till now against such staff members. In the correspondence, the Respondent, in fact, stated that he had the liquidity problems and would try to repay the amounts in installments. 7 It is difficult to accept the defence. It is contrary to normal conduct in such circumstances. The defence in fact indicates an intention to deny liability dishonestly. In the circumstances, the Petitioner is entitled to some - 4 - 27.arbp.39.11 protection. 8 The learned counsel appearing on behalf of the Respondent states that he has only the tenancy rights in respect of the premises at serial No. (a) of Exhibit ‘AE’ to the petition and that he has surrendered the said premises. In view thereof, no interim orders can be granted in respect of the said premises. The Respondent states that he has a very small interest in the flat referred to in serial No. (b) of Exhibit ‘AE’ to the petition. The extent of the interest has not been specified. The learned counsel appearing on behalf of the Respondent states the he has no money to secure the Petitioner’s dues. 9 In the circumstances, the following order is passed : (i) Pending the arbitration proceedings and for a period of twelve weeks after the award is made, the Respondent shall not dispose of, alienate, encumber, part with possession of or create any third party rights in respect of the any of immovable properties including flat at serial No. ‘b’ of Exhibit ‘AE’ namely Flat No.111B, Kalpataru Residency, Sion (East), Mumbai 400 022,. (ii) The Respondent shall file an affidavit on or before 30th June 2011 furnishing particulars of his assets movable and immovable. - 5 - 27.arbp.39.11 (iii) Liberty to the Petitioner to apply thereafter for further orders, if necessary. The petition is accordingly disposed of with no orders as to costs. -