1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION ARBITRATION ARBITRATION ARBITRATION PETITION PETITION PETITION NO.11 OF 2007 NO.11 OF 2007 NO.11 OF 2007 Vinodkumar Vinodkumar Vinodkumar Sampatkumar Jain Sampatkumar Jain Sampatkumar Jain ...... Petitioner Petitioner Petitioner vs vs vs Nareshkumar Nareshkumar Nareshkumar Sampatkumar Sampatkumar Sampatkumar Jain.. Jain.. Jain.. Respondent Respondent Respondent Mr.S.Sen Mr.S.Sen Mr.S.Sen with with with Mr.Amit Jamsandekar i.b M/s D.H.Law Mr.Amit Jamsandekar i.b M/s D.H.Law Mr.Amit Jamsandekar i.b M/s D.H.Law Associates Associates Associates for Petitioner for Petitioner for Petitioner Mr.S.K.Jain Mr.S.K.Jain Mr.S.K.Jain for Respondent for Respondent for Respondent CORAM CORAM CORAM : ANOOP V.MOHTA, J : ANOOP V.MOHTA, J : ANOOP V.MOHTA, J RESERVED RESERVED RESERVED ON: ON: ON: 5th April, 2007 5th April, 2007 5th April, 2007 PRONOUNCED PRONOUNCED PRONOUNCED ON: ON: ON: 4th June, 2007 4th June, 2007 4th June, 2007 JUDGMENT 1.1.1. The petitioner has invoked section 34 of the The petitioner has invoked section 34 of the The petitioner has invoked section 34 of the Arbitration Arbitration Arbitration and Conciliation Act, 1996 and by and Conciliation Act, 1996 and by and Conciliation Act, 1996 and by this this this petition challenged the award dated 10th petition challenged the award dated 10th petition challenged the award dated 10th October,i October,i October,i 2006 2006 2006 passed by the sole Arbitrator in a passed by the sole Arbitrator in a passed by the sole Arbitrator in a dispute dispute dispute arising out of property i.e.Flat Nos. 62 arising out of property i.e.Flat Nos. 62 arising out of property i.e.Flat Nos. 62 and and and 63, 6th Floor, Block No.9 in Sham Nivas 63, 6th Floor, Block No.9 in Sham Nivas 63, 6th Floor, Block No.9 in Sham Nivas Cooperative Cooperative Cooperative Housing Society, Bhulabhai Desai Housing Society, Bhulabhai Desai Housing Society, Bhulabhai Desai Road, Road, Road, (the flat). (the flat). (the flat). 2.2.2. The petitioner and the respondent are real The petitioner and the respondent are real The petitioner and the respondent are real brothers. brothers. brothers. By an agreement dated 25th June, 1979 By an agreement dated 25th June, 1979 By an agreement dated 25th June, 1979 both both both of them jointly purchased the flat from one of them jointly purchased the flat from one of them jointly purchased the flat from one Mrs Mrs Mrs Roshan Sadarangani for a total consideration Roshan Sadarangani for a total consideration Roshan Sadarangani for a total consideration of of of Rs.2,75,000/-. As dispute arose, the Rs.2,75,000/-. As dispute arose, the Rs.2,75,000/-. As dispute arose, the respondent respondent respondent (original claimant) filed a suit (original claimant) filed a suit (original claimant) filed a suit bearing bearing bearing No. 354 of 2005 in the High Court at No. 354 of 2005 in the High Court at No. 354 of 2005 in the High Court at 2 Mumbai Mumbai Mumbai for a declaration that he has 50 % right, for a declaration that he has 50 % right, for a declaration that he has 50 % right, title title title and interest in the flat. Therefore, and interest in the flat. Therefore, and interest in the flat. Therefore, prayed prayed prayed for partition. In Notice of Motion No. for partition. In Notice of Motion No. for partition. In Notice of Motion No. 19 19 19 of 2006, as agreed, the Court, as consented by of 2006, as agreed, the Court, as consented by of 2006, as agreed, the Court, as consented by the the the parties, referred the matter to the sole parties, referred the matter to the sole parties, referred the matter to the sole Arbitrator. Arbitrator. Arbitrator. 3.3.3. The parties appeared before the Sole The parties appeared before the Sole The parties appeared before the Sole Arbitrator Arbitrator Arbitrator and filed their respective claims and and filed their respective claims and and filed their respective claims and counter counter counter claims/rejoinders. claims/rejoinders. claims/rejoinders. The parties have also The parties have also The parties have also filed filed filed the respective compilation of documents. the respective compilation of documents. the respective compilation of documents. The The The respondent did not lead oral evidence. The respondent did not lead oral evidence. The respondent did not lead oral evidence. The petitioner petitioner petitioner led evidence. After considering the led evidence. After considering the led evidence. After considering the rival rival rival case, the Arbitrator framed points for case, the Arbitrator framed points for case, the Arbitrator framed points for determination. determination. determination. Those are : Those are : Those are : i)i)i) Whether Whether Whether the respondent proves the respondent proves the respondent proves that that that there was a family there was a family there was a family arrangement arrangement arrangement in the month of in the month of in the month of November-December November-December November-December 2000 as 2000 as 2000 as alleged alleged alleged ? ? ? ii) ii) ii) Whether Whether Whether the respondent proves the respondent proves the respondent proves that that that the claimant gave up all the claimant gave up all the claimant gave up all his his his rights and shares in the rights and shares in the rights and shares in the flat flat flat in question in favour of in question in favour of in question in favour of the the the respondent as alleged ? respondent as alleged ? respondent as alleged ? iii) iii) iii) Whether Whether Whether the the the Claimant is entitled Claimant is entitled Claimant is entitled toto to any mesne profits as claimed any mesne profits as claimed any mesne profits as claimed? 3 iv) iv) iv) Whether Whether Whether the respondent is the respondent is the respondent is entitled entitled entitled to to to deletion of the name deletion of the name deletion of the name of of of the claimant from the share the claimant from the share the claimant from the share cerrificate cerrificate cerrificate as claimed in the as claimed in the as claimed in the counter counter counter claim ? claim ? claim ? v) v) v) Whether Whether Whether the Claimant is entitled the Claimant is entitled the Claimant is entitled toto to any relief, If so, what ? any relief, If so, what ? any relief, If so, what ? vi) vi) vi) Whether Whether Whether the respondent is the respondent is the respondent is entitled entitled entitled to any relief ? If so, to any relief ? If so, to any relief ? If so, what what what ? ? ? vii) vii) vii) What What What Award ? Award ? Award ? The The The operative part of the above Award is operative part of the above Award is operative part of the above Award is as as as under : under : under : "17. 17. 17. Considering the Statement of Claim filed, Considering the Statement of Claim filed, Considering the Statement of Claim filed, the the the Written Statement and Counter-Claim, the Written Statement and Counter-Claim, the Written Statement and Counter-Claim, the Rejoinder Rejoinder Rejoinder of the Claimant and Reply of the of the Claimant and Reply of the of the Claimant and Reply of the Claimant Claimant Claimant to the counter-claim of the Respondent, to the counter-claim of the Respondent, to the counter-claim of the Respondent, the the the arguments and submissions of the learned arguments and submissions of the learned arguments and submissions of the learned Advocates Advocates Advocates as also the authorities cited and the as also the authorities cited and the as also the authorities cited and the documentary documentary documentary evidence on record as also the oral evidence on record as also the oral evidence on record as also the oral evidence evidence evidence of the respondent and appreciating and of the respondent and appreciating and of the respondent and appreciating and appraising appraising appraising the evidence on record, I make the the evidence on record, I make the the evidence on record, I make the following following following Award: Award: Award: 4 (a) (a) (a) ordered ordered ordered and declared that the and declared that the and declared that the Claimant Claimant Claimant had and continues to had and continues to had and continues to have have have 50 50 50 % undivided share, right, % undivided share, right, % undivided share, right, title title title and interest in the flat and interest in the flat and interest in the flat bearing bearing bearing Nos. 62 and 63 on the Nos. 62 and 63 on the Nos. 62 and 63 on the 6th 6th 6th floor of Block No.9 in floor of Block No.9 in floor of Block No.9 in building building building known as Shyam Nivas known as Shyam Nivas known as Shyam Nivas belonging belonging belonging to the Shyam to the Shyam to the Shyam Cooperative Cooperative Cooperative Housing Society Housing Society Housing Society Limited, Limited, Limited, situated at Bhulabhai situated at Bhulabhai situated at Bhulabhai Desai Desai Desai Road, Mumbai - 400 036 Road, Mumbai - 400 036 Road, Mumbai - 400 036 alongwith alongwith alongwith the Respondent; the Respondent; the Respondent; (b) (b) (b) ordered ordered ordered and declared that the and declared that the and declared that the Claimant Claimant Claimant has not given up his 50 has not given up his 50 has not given up his 50 % undivided share, right, title undivided share, right, title undivided share, right, title and and and interest in the Flat bearing interest in the Flat bearing interest in the Flat bearing Nos. Nos. Nos. 62 and 63 on the 6th floor 62 and 63 on the 6th floor 62 and 63 on the 6th floor of of of Block No.9 n the building Block No.9 n the building Block No.9 n the building known known known as as as Shyam Nivas belonging to Shyam Nivas belonging to Shyam Nivas belonging to the the the Shyam Cooperative Housing Shyam Cooperative Housing Shyam Cooperative Housing Society Society Society Limited, situated at Limited, situated at Limited, situated at Bhulabhai Bhulabhai Bhulabhai Desai Road, Mumbai 400 Desai Road, Mumbai 400 Desai Road, Mumbai 400 036 036 036 in favour of the respondent; in favour of the respondent; in favour of the respondent; (c) (c) (c) ordered ordered ordered that the Claimant is that the Claimant is that the Claimant is entitled entitled entitled to to to have partition of the have partition of the have partition of the flat flat flat bearing Nos. 62 and 63 on bearing Nos. 62 and 63 on bearing Nos. 62 and 63 on the the the 6th floor of Block No.9 in 6th floor of Block No.9 in 6th floor of Block No.9 in the the the building building building known as Shyam Nivas known as Shyam Nivas known as Shyam Nivas 5 belonging belonging belonging to the Shyam to the Shyam to the Shyam Cooperative Cooperative Cooperative Housing Society Housing Society Housing Society Limited, Limited, Limited, situated at Bhulabhai situated at Bhulabhai situated at Bhulabhai Desai Desai Desai Road, Mumbai - 400 036 by Road, Mumbai - 400 036 by Road, Mumbai - 400 036 by metes metes metes and bounds in two equal and bounds in two equal and bounds in two equal parts parts parts in enforcement proceedings in enforcement proceedings in enforcement proceedings of of of this Award; this Award; this Award; (d) (d) (d) The The The Respondent is ordered and Respondent is ordered and Respondent is ordered and directed directed directed to pay to the Claimant to pay to the Claimant to pay to the Claimant mesne mesne mesne profit at the rate of profit at the rate of profit at the rate of Rs.1,00,000/- Rs.1,00,000/- Rs.1,00,000/- per month with per month with per month with effect effect effect from 23rd December, 2005 from 23rd December, 2005 from 23rd December, 2005 till till till the the the date hereof amounting to date hereof amounting to date hereof amounting to Rs.9,50,000/- Rs.9,50,000/- Rs.9,50,000/- (Rupees Nine lacs (Rupees Nine lacs (Rupees Nine lacs and and and fifty thousand) and further fifty thousand) and further fifty thousand) and further from from from the date hereof at the rate the date hereof at the rate the date hereof at the rate of of of Rs.1,00,000/- per month till Rs.1,00,000/- per month till Rs.1,00,000/- per month till handing handing handing over possession of 50 % over possession of 50 % over possession of 50 % undivided undivided undivided share, share, share, right, title and right, title and right, title and interest interest interest in in in the flat bearing Nos. the flat bearing Nos. the flat bearing Nos. 62 62 62 and 63 on the 6th floor of and 63 on the 6th floor of and 63 on the 6th floor of Block Block Block No. 9 in the building No. 9 in the building No. 9 in the building known known known as as as Shyam Nivas belonging to Shyam Nivas belonging to Shyam Nivas belonging to the the the Shyam Cooperative Housing Shyam Cooperative Housing Shyam Cooperative Housing Society Society Society Limited situated at Limited situated at Limited situated at Bhulabhai Bhulabhai Bhulabhai Desai Road, Mumbai - Desai Road, Mumbai - Desai Road, Mumbai - 400 400 400 036. 036. 036. (e) (e) (e) The The The Counter claim of the Counter claim of the Counter claim of the 6 Respondent Respondent Respondent is rejected. is rejected. is rejected. " 4. Admittedly, the flat was jointly purchased by Admittedly, the flat was jointly purchased by Admittedly, the flat was jointly purchased by the the the parties by an agreement dated 25th June, parties by an agreement dated 25th June, parties by an agreement dated 25th June, 1979. 1979. 1979. The society has also transferred share The society has also transferred share The society has also transferred share certificate certificate certificate bearing No.85 for 5 shares in the bearing No.85 for 5 shares in the bearing No.85 for 5 shares in the joint joint joint names names names on 3rd July, 1979. Both the brothers on 3rd July, 1979. Both the brothers on 3rd July, 1979. Both the brothers and and and family members were residing together in the family members were residing together in the family members were residing together in the said said said flat living together till 1983-84. The flat living together till 1983-84. The flat living together till 1983-84. The petitioner petitioner petitioner and all his family members shifted to and all his family members shifted to and all his family members shifted to another another another flat which was purchased jointly in the flat which was purchased jointly in the flat which was purchased jointly in the name name name of Sampatlal Jugraj Jain (HUF) and other of Sampatlal Jugraj Jain (HUF) and other of Sampatlal Jugraj Jain (HUF) and other family family family members including the petitioner. members including the petitioner. members including the petitioner. Thereafter, Thereafter, Thereafter, the petitioner along with his family the petitioner along with his family the petitioner along with his family members members members further shifted to another flat at Surya further shifted to another flat at Surya further shifted to another flat at Surya Kiran, Kiran, Kiran, Kemps Corner sometime in month of August, Kemps Corner sometime in month of August, Kemps Corner sometime in month of August, 2000. 2000. 2000. The original claimant-respondent was not The original claimant-respondent was not The original claimant-respondent was not residing residing residing at the relevant time in the flat. But at the relevant time in the flat. But at the relevant time in the flat. But the the the petitioner alongwith his family members were petitioner alongwith his family members were petitioner alongwith his family members were residing residing residing in the flat. As the petitioner refused in the flat. As the petitioner refused in the flat. As the petitioner refused toto to realise his 50 % undivided share in the flat realise his 50 % undivided share in the flat realise his 50 % undivided share in the flat, by by by letter dated 1st October, 2005 the respondent letter dated 1st October, 2005 the respondent letter dated 1st October, 2005 the respondent requested requested requested the the the petitioner to give consent for sale petitioner to give consent for sale petitioner to give consent for sale of of of the said flat and/or to buy the 50 % share in the said flat and/or to buy the 50 % share in the said flat and/or to buy the 50 % share in the the the flat. But, there was no response from the flat. But, there was no response from the flat. But, there was no response from the petitioner. petitioner. petitioner. Therefore, another notice was issued Therefore, another notice was issued Therefore, another notice was issued on on on 19th October, 2005. The petitioner admitted, 19th October, 2005. The petitioner admitted, 19th October, 2005. The petitioner admitted, inin in the reply, 50% share of the respondents. By the reply, 50% share of the respondents. By the reply, 50% share of the respondents. By referring referring referring to some discussion and consent, as to some discussion and consent, as to some discussion and consent, as alleged, alleged, alleged, the respondent ’s right had been the respondent ’s right had been the respondent ’s right had been mutually mutually mutually settled and thereby denied the claim of settled and thereby denied the claim of settled and thereby denied the claim of 7 the the the respondent. The respondent resisted and respondent. The respondent resisted and respondent. The respondent resisted and denied denied denied all contentions and understandings and all contentions and understandings and all contentions and understandings and reiterated reiterated reiterated his 50 % share and title over the his 50 % share and title over the his 50 % share and title over the property. property. property. Thereafter, the respondent filed the hereafter, the respondent filed the hereafter, the respondent filed the suit. suit. suit. 5.5.5. The Hon’ble Arbitrator has noted that both The Hon’ble Arbitrator has noted that both The Hon’ble Arbitrator has noted that both the the the brothers on 20th September, 2004 jointly brothers on 20th September, 2004 jointly brothers on 20th September, 2004 jointly requested requested requested the Secretary of the society for the Secretary of the society for the Secretary of the society for issuance issuance issuance of no objection certificate for sale of of no objection certificate for sale of of no objection certificate for sale of the the the flat. They again admitted that they had flat. They again admitted that they had flat. They again admitted that they had purchased purchased purchased the said flat jointly and further that the said flat jointly and further that the said flat jointly and further that they they they are in occupation of the said flat. The are in occupation of the said flat. The are in occupation of the said flat. The society society society replied and asked for more details and replied and asked for more details and replied and asked for more details and further further further informed that the land on which the said informed that the land on which the said informed that the land on which the said block block block has been constructed is leasehold. The has been constructed is leasehold. The has been constructed is leasehold. The maintenance maintenance maintenance bill are in the name of the bill are in the name of the bill are in the name of the respondent. respondent. respondent. The electricity connection at the The electricity connection at the The electricity connection at the said said said flat is in the joint names of the parties. flat is in the joint names of the parties. flat is in the joint names of the parties. The The The petitioner never claimed that he has been in petitioner never claimed that he has been in petitioner never claimed that he has been in exclusive exclusive exclusive possession of the said flat since possession of the said flat since possession of the said flat since 1979-80 1979-80 1979-80 but in view of the family arrangement but in view of the family arrangement but in view of the family arrangement claiming claiming claiming the exclusive right and title in the the exclusive right and title in the the exclusive right and title in the said said said flat. flat. flat. But, the petitioner failed to But, the petitioner failed to But, the petitioner failed to discharge discharge discharge the burden of proving the alleged the burden of proving the alleged the burden of proving the alleged family family family arrangement. No other family members arrangement. No other family members arrangement. No other family members wereexamined wereexamined wereexamined to substantiate the alleged family to substantiate the alleged family to substantiate the alleged family arrangement. arrangement. arrangement. As recorded in September/October, As recorded in September/October, As recorded in September/October, 2004 2004 2004 both the brothers by written letter both the brothers by written letter both the brothers by written letter requested requested requested the society to issue no objection the society to issue no objection the society to issue no objection 8 certificate certificate certificate for transfer of the said property. for transfer of the said property. for transfer of the said property. There There There is no other material brought on record by is no other material brought on record by is no other material brought on record by the the the petitioner supporting that he paid a sum of petitioner supporting that he paid a sum of petitioner supporting that he paid a sum of Rs.45,00,000/- Rs.45,00,000/- Rs.45,00,000/- to Rs.50,00,000/- in cash to the to Rs.50,00,000/- in cash to the to Rs.50,00,000/- in cash to the respondent respondent respondent except putting the said question in except putting the said question in except putting the said question in cross-examination. cross-examination. cross-examination. No receipt in respect of the No receipt in respect of the No receipt in respect of the alleged alleged alleged payment was produced. The respondent payment was produced. The respondent payment was produced. The respondent has has has purchased some other property and/or purchased some other property and/or purchased some other property and/or physically physically physically left the flat. That does not mean left the flat. That does not mean left the flat. That does not mean that that that the respondent has given up his 50 % the respondent has given up his 50 % the respondent has given up his 50 % undivided undivided undivided right right right or title in the flat in question. or title in the flat in question. or title in the flat in question. The The The material is sufficient to support the case material is sufficient to support the case material is sufficient to support the case that that that both the brothers are joint owners of the both the brothers are joint owners of the both the brothers are joint owners of the said said said flat. flat. flat. 6.6.6. On question of feasibility to have partition On question of feasibility to have partition On question of feasibility to have partition of of of the said flat in two equal parts, in presence the said flat in two equal parts, in presence the said flat in two equal parts, in presence of of of both the parties, their respective advocates both the parties, their respective advocates both the parties, their respective advocates informed informed informed to the Arbitrator that the carpet area to the Arbitrator that the carpet area to the Arbitrator that the carpet area of of of the the the said flat is 1300 sq.ft approximately with said flat is 1300 sq.ft approximately with said flat