1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 148 OF 2009 Manharlal Narbheram Parekh, of Bombay, Indian Inhabitant and as a Karta of Manharlal N. Parekh (HUF) having his address at 16, Surya Apt., V.P. Road Corner, Andheri (W), Mumbai 400 058 .... Petitioner Vs. Shri Vijayraj Singhji, son of Late His Highness Dr.Virbhadrasinghji Krishnakumarsinghji Gohil, being the heir and legal representative of Late His Highness Dr. Virbhadrasinghji Krishnakumarsinghji Gohil and heir and legal representative of Smt. Brijraj Nandini Deviba, an adult of Bombay residing at Nilambag Palace, Bhavnagar, Gujarat-364 002. .... Respondent Mr. H. G. Thakkar, Sr.Advocate with Ms.Milli Thakkar i/b. Mr. R. V. Thakkar for the petitioner. Ms. Rajani Iyer, Sr.Advocate with Mr.Sanjay Kothari with Mr.Avinash Joshi i/b. M/s.Mulla & Mulla for the respondent. CORAM: ANOOP V. MOHTA, J. DATE : 6TH JULY, 2009. ORAL JUDGMENT: 1 The petitioner has filed this petition under Section 9 of the 2 Arbitration and Conciliation Act, 1996 (the Act) in a pending arbitration proceeding, seeking the reliefs of appointment of a Receiver on Plot Nos. 1, 2, 3, 4, 5 and 6 in the Neelam Baug, Palace Ground, C.T.S. No.5684, Bhavnagar, Gujarat. (Exh. K) with all powers under Order XL, Rule 1 of the Code of Civil Procedure, 1908 (CPC), including demarcation of 2400 sq.yards of land as mentioned in clause 1 of Agreement dated 28.11.1977 (the agreement), executed between the petitioner and Dr. Virbhadrasinghji Krishnakumarsinghji Gohil (the deceased) and to restrain the Respondent from selling, transferring or alienating or disposing of the said land in any manner; and direction to deposit a sum of Rs.4,32,00,000/- being value of the above areas/plots as alleged and all other ancillary and connected reliefs. 2 Respondent is the son and the only heir and legal representative of the deceased and Smt. Brijraj Nandini Deviba, Respondent No.1 earlier, now the deceased. The petitioner extended his full cooperation, assistance and services to enable (the deceased Dr. Gohil) to sell his remaining land, by executing 108 separate sale deeds in favour of M/s. Adarsh Co-operative Housing Society Limited (the society). 3 After several protracted negotiations and discussions with regard to the payment towards the remuneration/ commission for the land sold to the society, it was agreed that the deceased would remunerate or 3 compensate the petitioner with a lumpsum amount of Rs.2,00,000/- (Rupees two lakhs only). Ultimately all these culminated into the agreement. 4 The relevant clauses of the Agreement dated 28/11/1977 are as under: “1. That DR. VIRBHADRASINGHJI KRISHNAKUMAR SINGHJI GOHIL of Bhavnagar has agreed to remunerate to the said SHRI MANHARBHAI NARBHERAM PAREKH and SHRI MANHARBHAI NARBHERAM PAREKH has agreed to receive by arrenging to allot six plots or pieces of land admeasuring approximately 400 sq. yds. Each, so as in all not to be less than 2400 sq.yds. In Adarsh Co-operative Housing Society Ltd., Bhavnagar or in a suitable plot in the adjoining area of Nilam Baug Palace Grounds, Bhavnagar. 2. That it is hereby clarified that if the amount due from Messrs.Adarsh Co-operative Housing Society Limited is actually not received, the amount of remuneration or consideration agreed to as above to be paid to Shri Manharbhai Narbheram Parekh would not become payable. 3. That each allotment of plots/parcels of land admeasuring in all to 2400 sq.yds. has to be made only when the amount payable by Messrs. Adarsh Co-operative Housing Society Limited is actually received by Dr. Virbhadrasinghji. 4. That it is further agreed that if for any reason a compromise is reached between Messrs.Adarsh Co-operative Housing Society Limited and Dr.Virbhadrasinghgi of Bhavnagar with regard to the consideration agreed to be paid by Messrs.Adarsh -cooperative Housing Society Limited to Dr4.Virbhadrasinghji. Shri Maharbhai Narbheram Parekh will be kept informed and that the remuneration and/or consideration agreed to be paid as aboe will be paid fully if the amount is received fully and/or will be paid proportionately if the amount is received proportionately, subject to the stipulation that 4 Shri Manharbhai Narbheram Parekh will be kept informed on the position may arise on this count.” 5 On 26.07.1994 Dr. Gohil (the deceased) expired. On 18.08.1994 his widow and son made an application to the City Survey Office for the correction of the property records being the only surviving members of the Hindu Undivided Family (HUF) of the deceased. 6 There arose dispute between the parties. There is an arbitration clause in the agreement. 7 The petitioner had moved an application under Section 9 of the Act relying on the above clauses for the various reliefs and the protection. This Court, after hearing both the parties, on 21-2-2005 by interpreting the above clauses rejected the petition by observing “No attempt has been made by the petitioner to find out from Adarsh Co-operative Housing Society as to whether they have made payment to the respondents. In the petition, a statement has been made that a member of that society has told the petitioner that the payment has been made to the respondents, but the name of that person is not disclosed. ..... In my opinion, the proper course of action for the petitioner was to approach that Co-operative Society so as to find out whether the payment has been made by them. In the absence of any communication from the society, it is not possible to believe that there is reasonable ground for the petitioner to assume that Adarsh Co-operative 5 Housing Society has made payment to the respondents. The petitioner does not have a prima facie case, therefore, the petitioner is not entitled to any interim order that has been claimed in the petition. The petitioner is therefore, disposed of.” 8 This order attained finality as an appeal preferred by the petitioner was also dismissed on 05/04/2005. 9 There was no stay or injunction of any kind, therefore, the various transactions took place of the immovable properties of the respondents. Even otherwise, the claim of the petitioner is only to the extent of 2400 sq. yards area on the land at Bhavnagar. 10 An arbitration petition was filed and by an order dated 13.07.2005 an Arbitrator was appointed. The matter is pending before the Arbitral Tribunal. 11 Admittedly, the parties appeared and proceeded before the Arbitral Tribunal so constituted. The petitioner’s affidavit of evidence was filed on 7.1.2006. The widow of Dr. Gohil expired on 5.2.2007. A Probate Petition filed on 1.10.2007. The Will was proved. The Probate has been granted by order dated 15/04/2007-19/04/2008. 6 12 The petitioner moved an application under Section 17 of the Act some time in May, 2008 before the Arbitral Tribunal. After considering the material available on record read with the submission made by the parties, the learned Arbitrator has granted ad-interim order on 10.6.2008, the operative part is as under: “(a) The Respondent, his agents, servants and representatives are hereby restrained by an order and injunction from alienating, encumbering, disposing, selling or creating any third party rights with respect to the property called Neelam Baug, Palace Ground, C.T.S. No. 5684, lying, being and situate at Neelam Baug, Palace Ground, Village Vadva, Bhavnagar, to the extent of 2,400 square yards out of the plots as more particularly described in Exhibit “P” to the application.” The Arbitrator has quantified and marked six plots while granting the above order. 13 The petitioner, in spite of this, has filed the present petition for the relief as noted above for appointment of Receiver, solely on the ground that the respondents are transferring the properties and creating third party rights therefore, if no protection is granted or if no Receiver is appointed, the whole purpose of the Arbitral Tribunal would be frustrated. It is also contended that they were surprised to receive a document dated 19.10.2006 whereby the plots in question are referred and recorded as HUF property. They got the knowledge of this document some time in July, 2008. The petitioners accordingly have placed on record the details of the 7 various transactions including the properties/plots of the lands in question ranging from year 2004 to 2008. 14 The learned Arbitrator has already passed the order of injunction pending the Arbitration. The said order and the reasonings so given are undisturbed till this date, though there is an appeal preferred by the Respondents and the same is still pending. There is nothing on record to show that in spite of that order the Respondents trying to create third party right or interest in the property in question. The transaction so referred and as already noted ranges from the period form 2004 to 2008, the submission that those transactions readwith order already passed, are sufficient to invoke these provisions for appointment of Receiver as prayed, is unacceptable. The averments, with regard to the apprehension and even otherwise, as required to pass under Order 40 Rule 1(2) of the Code of Civil Procedure (for short, “CPC”), are insufficient on all counts. 15 Admittedly, the whole case is revolving around the clauses reproduced above. Apart from reading/ interpreting all those clauses, the various factual aspects need to be proved. Such clauses, therefore, cannot be read/ interpreted independently at this stage to pass order, as prayed. The clauses itself provides various contingencies and, therefore, unless those are complied with and or fulfilled and proved, the claims as raised and the prayers so made in the present petition under Section 9 of the Act, 8 pending the trial before the Arbitral Tribunal, are difficult to grant. 16 The order dated 21st February, 2005, which has attained the finality, though based upon the initial stage of the proceedings yet cannot be overlooked to grant relief as prayed. This is also for the reason that at that time the trial was not commenced and presently trial is pending. Therefore, unless decided finally based upon the the evidence/ material placed and relied on, by both the parties no interim order as sought in the present matter can be granted. 17 Admittedly, the Arbitral Tribunal, after considering the rival contentions, has already passed the injunction order as referred above, even by identifying the properties. The agreement nowhere provides for such identification or description except the area i.e. 2400 sq. yards. Apart from this, there is a clear statement made by the learned counsel appearing for the Respondent and also in the written notes that they are not in any manner alienating or creating any rights in or over the area aggregating to 2426.375 sq. yds. comprising of plot No. 1 (6.27.894 sq.yds.), Plot No.2 (556.135 sq. yds.), Plot No.3 (717.594 sq.yds.) and Plot No.6, (752 sq. yds.). As it is for the benefit of the minor daughter of the Respondent. 18 The facet of filing/ raising the claims some time in the year 2004 though basic agreement is of the year 1977 and specially after the death of 9 deceased is also a matter which just cannot be overlooked while considering the submission based upon the averments and material placed on record for grant of such order of appointment of Receiver. Unless it is adjudicated, I am not inclined to accept the submission that a strong case has been made out. 19 The Judgments relied upon, in the present facts and circumstances, of the case are not sufficient to pass any order as claimed. The law is not in dispute. The facts and circumstances are distinct and distinguishable. There is no emergency or danger of very serious nature that the party cannot wait and/or there is an element of danger for immediate relief as prayed. 20 The various facets; including the status of the property, HUF or individual, whether the deceased had right to create and or execute such agreement, whether the L.Rs. are bound by the agreement, whether the partition/ oral partition/ transactions/ transfer of the property is valid including the registration of those documents, are pending for the deliberation. Any decision or any observation with regard to the same in the present proceeding under Section 9 of the Act, at this stage, would affect the pending trial before the Tribunal. In absence of any specific reason and or any drastic change of circumstances, there is no case to grant any order as prayed. 10 21 Both the parties have cited various judgments in support of their respective contentions, and made their respective submissions even on the merits of the matter, pending the trial before the Tribunal. Having once observed that the trial is pending before the Arbitral Tribunal, there is no question to consider the submission with regard to the respective pleadings and or documents and or interpretation of the documents and or to give any observations or findings based upon those notes of evidence. 22 Admittedly, there is no restrainment order and any such order, during this period and specially from 1977 till 2004 and even after 2004 till 2008, except the order of injunction passed by the Tribunal. Any transaction even if they have entered into by creating documents including, oral partition, unless declared null and void and/or set aside by the Court at this stage, the presumption also goes in favour of those documents. 23 The Petitioner’s submission, as made, still it cannot go beyond 2400 sq. yards. Therefore, the transactions even if made, just cannot be the reason to accept the case, that it will affect the rights of the Petitioner. 24 As noted, the said agreement is of dated 28/11/1977. The consequences of that agreement unless decided finally, it is difficult to accept the case of the Petitioner that the suit is for enforcement of agreement for immovable property, that finding just cannot be given at this 11 stage, as the matter is already pending before the Arbitral Tribunal. That documents itself shows that it was agreed/ executed towards the recovery of remuneration of Rs.2 lacs, as promissory notes and cheques were dishonoured. Therefore, six plots as referred above and its estimated valuation of the property of 2400 sq. yards amounting to Rs.4.32, need to be protected/ secured is also unacceptable. 25 The Arbitral Tribunal to deal with the matter on its own merit, even if any observations are made in this Section 9 Petition. 26 Resultantly, in view of above, the Petition is dismissed. No order as to costs. (ANOOP V. MOHTA, J.)