Arbp239.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.239 OF 2009 Dilip Venilal Maniar, an Indian inhabitant, residing at Flat No.39, Second Floor, Ambika Darshan, M.G. Road, Ghatkopar (E), Mumbai-400 077. ...Petitioner. Vs. 1 Rameshbhai Venilal Maniar, an Indian inhabitant, residing at B/102, Neelkanth Garden, Swami Narayan Mandir Road, Bawan Bunglows Area, Thane Naka, Panvel-410 206. 2 Harshadrai Jagannath Maniar, Arbitrator, having his address at B/703, Murlidhar Aptt., Ajit Park Society, Murlidhar Road, Ghod-Dod Road, Surat- 395 007. 3 Kiranbhai Doshi, Arbitrator, having his address at Gokul Arbp239.09 2 Bunglow, Sterling Row House, Opp: Maruti Complex, Nemnagar, Ahmedabad-380 052. 4 Ramniklal Doshi, Arbitrator, having his address at 2nd floor, Swastik Aptt., Gordin Lane, L.B.S. Road, Ghatkopar (W), Mumbai- 400 086. ...Respondents. Ms. Shakuntala Joshi i/by M/s. S.I. Joshi & Co. for the Petitioner. Mr. Chirag Balsara with Mr. Anand Shah i/by M/s. Wadia Ghandy & Co. for Respondent No.1. Mr. Rahul Mehta i/by M/s. K.M.C. Legal Venture for Respondent No.2. CORAM :- ANOOP V. MOHTA, J. DATE OF RESERVING THE JUDGMENT:- 6th NOVEMBER, 2009. DATE OF PRONOUNCING THE JUDGMENT: 3rd December, 2009. JUDGMENT :- 1 The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996, (for short, the Arbitration Act), and thereby challenged an award dated 24th October, 2008, whereby the Arbitrator has declared and directed as under:- Arbp239.09 3 “i) The Respondent is directed to sell the said Flat to the prospective buyer at the prevailing market price, in consultation with the Claimant, without any further delay and to share the sale proceeds of the said Flat with Smt. Madhukanta Rameshbhai Maniar in equal portion. ii) In the event, for any reason the said Flat is not sold on or before 31st January, 2009, then as and when the said Flat is sold, the Respondent shall be fastened with liability to pay 15% interest on the 50% of the sale proceeds to be computed from 1st February, 2009 till realization of the proceeds by Smt. Madhukanta Rameshbhai Maniar. The Respondent shall discharge such interest liability by deducting such amount of interest shall from the share of the Respondent at the time of sharing the proceed with Smt. Madhukanta Rameshbhai Maniar. It is clarified that such interest liability will be restricted for a delayed period commencing from 1st February, 2009 and shall not be applicable from 20th October, 2007, till 31st January, 2009.” 2 The facts as noted in the award are:- “a) The Claimant and the Respondent are the two sons of late Smt. Chandanben Venilal Maniar and late Shri Venilal G. Maniar. Shri Venial G. Maniar died on 21st May, 1976 and Smt. Chandanben Venilal Maniar died on 12th February, 2008. The Maniar family was residing in the Building “Ambika Darshan” situate at M.G. Road, Ghatkopar (East), Mumbai-400 077. b) Smt. Chandanben V. Maniar also had a sister-in-law late Smt. Arbp239.09 4 Shantaben Ratilal Mehta who died on 20th August, 2005 and had bequeathed her flat bearing No.39 on the second floor of the building known as “Ambika Darshan” situate at M.G. Road, Ghatkopar (East), Mumbai 400 077 (hereinafter referred to as the “said Flat”) jointly to the Respondent and Smt. Madhukanta Rameshbhai Maniar, wife of the Claimant. Late Smt. Chandanben V. Maniar had expressed her desire to distribute the sale proceeds of Flat No.44 to the Claimant and Respondent equally, after making certain provisions. c) The differences had arisen between the Claimant and the Respondent as regards the enjoyments of the said Flat No.39 and 44 of the said Ambika Darshan Building, after the demise of Smt. Shantaben Ratilal Mehta. The said differences and disputes were brought to the notice of the members of Arbitral Tribunal as all the members of the Tribunal are brother-in-law of both the Claimant and Respondent. During 2006 and 2007, various meetings were held between the Claimant and Respondent in the presence of at least one member of the Arbitral Tribunal. Finally, the Claimant and Respondent themselves settled and/or adjusted their differences out their free will and choice by entering into a Deed of Family Settlement dated 19th Day of April, 2007 (“said Deed of Family Settlement”), inter-alia recording the terms and conditions for the sale of Flat No.39 Arbp239.09 5 and 44 and the sharing of the sale proceeds in respect thereof. d) In pursuance of the said Deed of Family Settlement, Flat No.44 was sold in or about September/ October, 2007. However, Flat No.39 is not sold till date and continuously occupied by Mr. Dilip Maniar. 3 The parties, after invocation of the Arbitration clause in view of the deed of family settlement, appeared before the Arbitral Tribunal. The Tribunal accordingly, in view of the agreed terms and settlement, expeditiously proceeded with the matter. 4 Though Respondent No.1 was not cooperating, but considering the settlement deed and interpretation of the same, and as the parties have already acted upon the settlement deed and basically dispute revolved around the interpretation of clause 4 of the deed of family settlement and after hearing both the parties, and as no evidence was laid and/or in documents relied upon by the parties, and as there was no dispute about the clauses of deed, held that- the Arbitrator is not bias only because being close relative of the parties to the dispute. Having once accepted, appointed and agreed to proceed before the named and/or such Arbitrator, it is difficult to accept the case of the Petitioner, that the arbitrator is bias. Respondent No. Arbp239.09 6 1 was fully aware of such relations between the Members of Arbitral Tribunal and the parties to the dispute. The Arbitrator has accordingly observed as under:- “14. ..... Thus, to make an allegation that because of such close relationships, they will have biases is far from truth and wild imagination of the Respondent. In fact the sisters of the Claimant and Respondent are not claiming any share from the estate of late Smt.Chandanben V. maniar. Moreover, late Smt. Shantaben Ratilal Mehta was treating one of the sister namely Smt. Varsha Kiran Doshi as daughter and on number of occasion expressed her desire to bequeath the said Flat to her. However, the said Smt. Varsha Kiran Doshi had refused for the same and thereafter only Smt. Shantaben Ratilal Mehta bequeathed the said Flat as stated above to the wife of the Claimant and Respondent. The findings of Arbitral Tribunal on the first issue is in negative.” 5 In my view, the above findings need no interference as it is not substantiated by any contra material except the bald allegations, at this late stage of the proceeding. There is no material to show actual bias. 6 It is held that, no agreement was concluded between the parties to complete the transactions @ Rs. 7,750/- (Rupees seven thousand seven hundred fifty only), per sq. ft.. 7 The relevant clauses 1, 4 and 5 of the deed of family settlement, are reproduced as under:- Arbp239.09 7 “1. It is agreed by the parties hereto that both the properties, namely flat no.39 and flat no. 44 shall be sold (emphasis supplied) at the earliest and proceed thereof after meeting the expenses relating to the said sale, shall be shared equally by both the factions as stated hereinafter. 4. Flat No.39 shall be sold (emphasis supplied) at a price which prospective buyer is offering and the entire process of locating, negotiating the deal and receiving the sale consideration shall be completed within a period of 3 months. However, the said period of 3 months may be extended by a further period of 3 months in the event the transfer of the flat in the name of nominees is necessitated due to insistence by the society. 5. Entire sale proceed shall be shared equally by party of the second part hereto namely Shri Dilipbhai Venilal Maniar and Smt. Madhukanta Rameshbhai Maniar.” The plain and simple reading of the aforesaid Clauses of the Deed of Family Settlement, clearly indicates the intention of the parties to sell both the flats situated in Ambika Darshan building. Nowhere in the said Deed of Family Settlement, reference is made about one of the party retaining any of the flat and thus, the submission made by the Respondent is incorrect and improper. It is agreed between the parties that the said Flat shall be sold to a prospective buyer and such sale transaction should be completed within a period of 3 months from 19th April, 2007 i.e. the date of the Deed of Family Settlement. It is further agreed between the parties that such period of 3 months can be extended for a further period of 3 months in the event the society in respect of the said Flat insists for transfer of the said Flat in the name of the nominees. Arbp239.09 8 In terms of Clause 5 of the said Deed of Family Settlement, it is further agreed between the parties that the sale proceeds in respect of the said Flat shall be shared equally between the Respondent and Smt. Madhukanta Rameshbhai Maniar. It is further agreed that the parties shall co-operate with each other and act in furtherence of the said Deed of Settlement.” 8 The above clauses itself whereby the parties agreed that to sell both the flats situated in “Ambika Darahsn Building”. There is nothing in the said deed that, one party shall retain any one of the flat, as tried to be contended in the present petition now, at this stage of the proceeding, specially when other party has already acted upon with the full knowledge of the petition and sold the property. 9 It has been agreed that the flat shall be sold to a prospective buyer and the sale transaction will be completed within a period of 3 months from 19 th April, 2007 i.e. the date of the Deed of Family Settlement, though time was extendable. The Petitioner failed to perform of his part of obligation as agreed. The Respondent No.1 was requested by pointing out clause 4 of the agreement to perform his part of the agreement and thereby invoked Arbitration Clause also. Clause 5 of the agreement between the parties also provides that the sale proceeds in respect of the flat, be equally distributed between Respondent No.1 and Smt. Madhukanta Maniyar. Though agreed and Arbp239.09 9 acted upon, the Petitioner failed to cooperate with each other and not acted in furtherance of deed of family settlement. 10 The submission laid by the learned counsel appearing for the Petitioner, by referring to the following citations are also of no use, as those authorities are distinguishable on the facts and circumstances of the case itself. 1) AIR 1962, S.C. 1471 (V 49 C 215), Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs. Mrs. Isolyne Sarojbashini Bose & Ors. That was not the case of Arbitral Award in pending probate petition. The scope and purpose of Section 213 of the Indian Succession Act, 1925 is not in dispute. There was question of deciding the title of the property. 2) (1993) 2 S.C.C. 507, Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. The validity of the Will was involved. The issue about legal heirs to the estate of the deceased was referred. The probate petition was pending. The two parallel proceedings for the same reliefs were going on. The parties have agreed to refer the matters pending the Petition/suit for probate. There were 3 disputed Wills involved. Arbp239.09 10 3) AIR 1988, Calcutta 402, Vishanji Dungarmal Futanani Vs. Mohanlal Dungarmal Futnani. The probate petition was pending. The award itself was time barred. Therefore, the same was set aside. 4) AIR 1992, Patna 139, Kishun Singh Vs. Kamta Ram. The probate petition was pending. The dispute of title was decided on the basis of material available on record. 11 The Petitioner has never invoked provisions of Succession Act for grant of probate. There is no question of granting any probate in this Arbitration Petition. 12 Admittedly, one more property added in the family settlement than the property mentioned in the Will. Both the parties are the only heirs of the deceased. Therefore, to resolve the dispute the party themselves agreed to settle the matter by bringing in all the family properties for equal and proper distribution. Respondent No.1, based upon the same has already acted and sold the property. When it comes to the Petitioner’s, obligation to perform as recorded above, he has raised all sort of objections including the submission with regard to the jurisdiction of the Arbitrator to pass such award. The law so declared is not in dispute. Arbp239.09 11 13 The facts are not sufficient to accept the case of the Petitioner, that the order is nullity and without jurisdiction and or in breache of any provisions of Succession Act, 1925, as contended. 14 In the present case, there is no question whether the particular Will is genuine or duly executed or particular bequest is good or bad. There was no even a case of grant of any probate or Will. The parties themselves, being only heirs and to resolve the disputes covering the other property which was not part of the Will, agreed and decided to settle through the known Arbitrators. I see, there is no bar to settle such matter through the Arbitrator. There was no dispute about the legality/ validity of the Will at all. There was no litigation/ Petition pending revolving around the Will. There is no perversity or illegality. The award is well within the framework of law and the record. 15 Resultantly, the Petition is dismissed with no order as to costs. 16 The learned counsel appearing for the Petitioner seeks six weeks time for preferring the Appeal. Accordingly, the effect and operation of this Judgment is stayed till 14th January, 2010. (ANOOP V. MOHTA, J.)