FA/4034/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4034 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ========================================================= SURESH SHIVKUMAR JOSHI AND OTHERS - Appellants Versus RANJAN RAMESHCHANDRA JOSHI AND OTHERS – Respondents ========================================================= Appearance : MR HARESH J TRIVEDI for the Appellants. MR AR MAJMUDAR for Respondent : 1, 1.2.1, 1.2.2,1.2.3 None for Respondents : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 16/04/2008 ORAL JUDGMENT 1. This appeal is preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (for FA/4034/2007 2/8 JUDGMENT short, “the Act”) by which the judgment and order dated 21-10-2003 passed by the learned Civil Judge (Senior Division), Vadodara in Civil Miscellaneous Application No. 233 of 1991 is under challenge. 2. Learned Advocate Mr. H. J. Trivedi for the appellants submitted that the judgment and order passed by the learned Judge is not based on evidence on record. The learned Judge ought to have taken into consideration the market-value of the properties in question and the report of the Government Approved Valuer before rejecting the application preferred by the appellants. Before making the award passed by the Arbitrator the Rule of the Court, the registration of the same was necessary as the value of the properties is more than Rs. 100/-. The learned Judge has committed serious error in not taking into consideration the fact that while dividing the immovable properties amongst the family members, the tenanted properties came to the share of the appellants and, therefore, it lost the marketability and value in the market. Thus, the learned Advocate submitted that the order passed by the learned Judge requires to be quashed and set aside on all these grounds. 3. As against the above mentioned submissions, learned Advocate Mr. A. R. Majmudar for respondent No. 1-heirs submitted that if the case does not fall within the purview of Section 34 of the Act, then the same cannot be interfered with. The learned Advocate FA/4034/2007 3/8 JUDGMENT submitted that Section 34 of the Act provides the grounds under which the Arbitral Award can be set aside and as the appellants could not make out any of the grounds for setting aside the award before the learned Judge, the learned Judge rightly rejected the application preferred by them. 4. Learned Advocate Mr. A. R. Majmudar for respondent No. 1-heirs has placed reliance on the following judgments to substantiate his defence:- (i) Union of India Vs. Virani Construction Company and Another, 2008 (1) GLR 105. The learned Advocate has cited this judgment in support of the submission that the award passed by the Arbitrator can be set aside by the Court only on the grounds mentioned in Section 30 of the Arbitration and Conciliation Act, 1940, and since the Court has extremely limited jurisdiction to interfere with the Arbitral Award, the Court cannot proceed to determine as to whether the conclusion arrived at by the Arbitrator is right or wrong or based on assumptions. (ii) Ishwarbhai Purshottambhai Patel Vs. Chandrakantbhai Purshottambhai Patel And Another, 2006 (4) GLR 3447. This judgment is cited by the learned Advocate in support of the submission that the Arbitral Award effecting right, title and interest in the immovable properties would not require compulsory FA/4034/2007 4/8 JUDGMENT registration in view of the provisions contained in Section 17 (2) (vi) of the Registration Act read with Section 36 of the Arbitration and Conciliation Act, 1996. The award can be executed in the same manner as the decree of a Civil Court. (iii) State of Rajasthan Vs. Puri Construction Company Limited, (1994) 6 SCC 485. Considering the provisions of Section 30 of the Arbitration and Conciliation Act, 1940 in this judgment, the Apex Court held that legal misconduct of an Arbitrator is a valid ground to set aside the order passed by the Arbitrator. The award cannot be set aside merely on the ground of misreading, misconstruction or misapplication of material on record of the case nor can it be set aside merely because on Court's own assessment, an alternative view is possible. (iv) M/s Sudarsan Trading Company Vs. Government of Kerala And Another, (1989) 2 SCC 38. In this judgment, the Apex Court considered the provisions of Section 30 of the Arbitration and Conciliation Act, 1940 and held that the award in excess of jurisdiction is open to judicial review by appreciating evidence not appearing on the face of the award and in appropriate case, award is liable to be set aside by the Court, but in case of award within the jurisdiction, mode of exercise of the jurisdiction is not open to judicial review. In such FA/4034/2007 5/8 JUDGMENT a case, the Court cannot interpret the contract and taken another possible view. (v) B. V. Radha Krishna Vs. Sponge Iron India Limited, (1997) 4 SCC 693. In this case, the Apex Court, while considering Section 30 of the Arbitration and Conciliation Act, 1940 held that the High Court has no jurisdiction to set aside the award by substituting its own view in place of the Arbitrator's view as if it was dealing with an appeal. (vi) M/s. Gas Authority of India Ltd And Another Vs. M/s Keti Construction (I) Ltd And Others, 2007 AIR SCW 3142. The learned Advocate has cited this judgment in support of his submission that even the plea of lack of jurisdiction is required to be taken at the first instance and not in the proceedings under Section 34 of the Act. (vii) M/s. Markfed Vanaspati & Allied Industries Vs. Union of India, 2007 AIR SCW 5910. In this judgment, while considering the provisions of Section 34 of the Act, the Apex Court held that the scope of interference in a non-speaking award is extremely limited. The Court cannot probe into the mental process of the Arbitrator. The Court should endeavour to support a non-speaking FA/4034/2007 6/8 JUDGMENT arbitration award provided it adhered to the parties' agreement and was not invalidated due to arbitrator's misconduct. Arbitration is a mechanism or a method of resolution of dispute that unlike Court takes place in private, pursuant to agreement between the parties. The parties agree to be bound by the decision rendered by a chosen arbitrator after giving hearing. The endeavour of the Court should be to honour and support the award as far as possible. Thus, the learned Advocate submitted that in view of the ratio laid down in the above mentioned judgments, no interference is called for in the appeal preferred by the appellants and the appeal deserves to be dismissed. 5. Heard learned Advocate Mr. Haresh J. Trivedi for the appellants and learned Advocate Mr. A. R. Majmudar for respondent No. 1 – heirs at length and in great detail. Though served, none appears for respondent Nos. 2 and 3. I have also perused the oral and documentary evidence led by both the sides before the Trial Court as well as the judgment and order passed by the learned Judge. 6. Taking into consideration the submissions canvassed by the learned Counsel of both the sides and on perusal of the order passed by the learned Judge, it is evident that there was no error of fact or law and no mistake was committed by the Arbitrator and, therefore, the learned Judge has rightly held FA/4034/2007 7/8 JUDGMENT that the award passed by the Arbitrator does not call for any interference. The contention raised by the learned Advocate that the value of the properties is more than Rs. 100/- and, therefore, the registration of the award is necessary has no substance in view of the judgment rendered in Ishwarbhai Purshottambhai Patel Vs. Chandrakantbhai Purshottambhai Patel And Another (supra). It is also strenously contended by the learned Advocate that the learned Judge has not taken into consideration the report of the Government Approved Valuer before rejecting the application preferred by the appellants, but considering the reasonings assigned by the learned Judge in the order dated 21-03-2003, no interference is called for by this Court in an appeal preferred by the appellants as scope of this Court is very narrow and limited in appeal. The contention raised by the learned Advocate that while dividing the immovable properties amongst the family members, only tenanted properties came to the share of the appellants and, therefore, the properties lost the value in the market has also no substance in view of the detailed reasons assigned by the learned Judge in the order. This is because the award cannot be set aside on the ground of misreading, miscontruction or misapplication of the material on record of the case or even because on the Court's own assessment and alternative view is possible. Thus, no error apparent on the face of record or mistake is committed by the learned Judge, which, in my considered view, calls for any interference in an appeal preferred by the FA/4034/2007 8/8 JUDGMENT appellants. The learned Judge has considered the submissions canvassed by both the sides and the evidence on record in its true perspective and since sufficient reasons are assigned by the learned Judge for rejecting the application, this appeal is liable to fail. 7. For the foregoing reasons, the appeal fails and is dismissed. [H. B. ANTANI, J.] /shamnath