1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISC. APPLICATION NO. 38 OF 2003 Mr. Goolam E. Vahanvati, Advocate General for the State of Maharashtra, .. Applicant. Office at Annexe Bldg., High Court, Mumbai-32 V/s. Mrs. Monica Nazareth .. Respondent. Vishwadeep Hsg. Society, Vishwadeep Nagar, Reeswadi, Dhandpada Behind L & T Training Centre, Raigad 410 222 (Panvel), (Amendment carried out as per order dt.23.08.2007 in C.A.No.28/05. --- Smt. G. P. Mulekar, AGP for the State. None for the Respondent. --- CORAM : J. N. PATEL AND A. A. SAYED, JJ. DATED : 05TH NOVEMBER, 2009 JUDGMENT : (Per A.A.Sayed, J.) 1. The Applicant is Advocate General of the State of Maharashtra. By this Misc. Application, the Applicant prays that the Respondent may be permanently restrained by an order of this Court from filing 2 further dispute/cases before any Court, Tribunal or Authority pertaining to the parties and properties mentioned in Agreement dated 06.11.1990 without leave of this Court. 2. It is the case of the Applicant that he has received credible information and documents from Miss Bridget Souto, pertaining to several instances of vexatious and false litigations filed by the Respondent in civil courts against her, in violation of the family Arbitration Agreement which has been upheld by this Court as valid and binding and not open to challenge. Miss Bridget Souto and the Respondent are sisters and are the daughters of late Mrs. Adrina Dias e Souto, who expired on 18th Sept.1999. There was a family arbitration agreement to resolve disputes among them and other family members pertaining to certain properties which include two flats in Mumbai and certain immovable property consisting of land at Goa. By agreement dated 06.11.1990 and supplementary agreement dated 17.11.1990, the dispute between the parties was settled. The agreement also provide for reference to arbitration in case of any dispute arising under the agreement. As the Respondent did not fulfill her obligation under the agreement dated 06.11.1990, a claim petition came to be filed by her mother before the Arbitrator, who in exercise of the powers conferred on him by clause 19 of the agreement, nominated Mr.Justice A.D.Tated (Retired) as the sole arbitrator. The Respondent appeared before the learned Arbitrator and opposed the reference to arbitration alleging that the Agreement dated 06.11.1990 was obtained by fraud and coersion. Ultimately, an Award dated 14th May, 1991 came to be passed, holding that the agreement was valid 3 and the learned Arbitrator filed the Award in Bombay City City Civil Court on 19th July, 1991 for making the same the rule of the court. 3. Before filing of the Award, the Respondent had filed Arbitration Petition no. 115 of 1991 under section 33 of the Arbitration Act,1940 in this Court. By an order dated 9th January, 1992 this Court dismissed the petition. 4. Thereafter the Respondent on 27th January, 1992 filed proceedings in the Bombay City Civil Court, challenging the Award of the Arbitrator and once again challenged the agreement dated 06.11.1990. The said petition came to be disposed of. An Appeal came to be filed against the said order. During the pendency of the Appeal, a civil application and review applications also came to be filed by the respondent, seeking restraint orders, which were dismissed by various orders. The Appeal was also ultimately disposed of, wherein it was clarified that the validity of the agreement dated 06.11.1990 will not be open to challenge in view of the judgment of this court dated 9th January, 1992 in Arbitration Petition no. 115 of 1991. Thereafter in 1996, the Respondent filed another suit in this Court being Suit No. 1625 of 1996. A Notice of Motion was also taken out in the suit, in which this Court declined to grant any relief and the Respondent ultimately withdrew the suit in November, 1996. 5. In 1998, the Respondent filed case no. CCI/312/98 before the First Co-operative Court and prayed for interim relief which came to be rejected on 15.01.1999. An Appeal was also preferred to the 4 Maharashtra State Co-operative Appellate Court, Mumbai which also came to be dismissed. The Respondent thereafter filed a writ petition in this Court which also came to be rejected by order dated 5th July, 1999. In December, 1999 Miss Bridget Souto applied for probate of the Will of the late Mrs.Adriana Dias e Souto who had left her Will dated April,1996. The Will is stated to contain clauses which are a repetition of the family agreement dated 06.11.1990. The Respondent filed her caveat and the probate application was converted into Suit No. 99/2000. The Respondent took out a Notice of Motion for interim relief. It appears that the said suit and the motion were pending at the time when the present Application came to be filed. 6. In December, 2000 the Respondent filed another suit in the Bombay City Civil Court being S. C. no. 7570/2000 and took out Notice of Motion being Notice of Motion No. 165/2001 for injunction. By order dated 08.03.2001, the Notice of Motion came to be dismissed and an Appeal came to be filed against the said order in the Court which was disposed of by order dated 9th October, 2001. Then a contempt petition was also filed by the Respondent in April, 2002 in the Appeal which was also disposed of by this Court. The suit being S.C. Suit No 7570/2000 is still pending in the Bombay City Civil Court. 7. In the light of the above, the present Application has been filed for an order, declaring that neither the Respondent nor anybody claiming through her be permitted to initiate any proceedings against Miss Bridget Souto or any parties or properties covered under the 5 agreement dated 06.11.1990 under the provisions of Maharashtra Prevention of Vexatious Litigations Act, 1971. 9. By an order dated 4th September, 2009 passed in the present Application, it has been recorded that the notice issued to the respondent on 5th September, 2008 has returned with the remark “refused to accept service” which is treated as a good service and, therefore, the respondent is deemed to have accepted the notice. 10. There is no reply filed by the Respondent, controverting the facts stated in the present Application. Section 2 of the Maharashtra Vexatious Litigation (Prevention) Act, 1971, empowers this Court, on being satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, whether against the same person or against different persons, after hearing that person or giving him an opportunity of being heard, to order that no proceedings, civil or criminal, shall be instituted by him in any Court and that any legal proceedings instituted by him in any Court before the order shall not be continued by him, without leave of this Court. 11. Having regard to section 2 of the aforesaid Act and on going through the material on record we are satisfied that Respondent has habitually and without any reasonable ground instituted vexatious proceedings. In the circumstances, we allow the Application in terms of prayer clauses (a) and (b) of the Application. Prayer clause (a) and (b) read as under : 6 “ a) The Respondent may be permanently restrained by an order of this Court from filing further disputes/cases before any Court, Tribunal or Authority pertaining to the parties and properties mentioned in Agreement dated 6.11.1990 without the leave of this Hon’ble Court. b) that all pending legal proceedings instituted by the respondent herein in any Court/Competent Authorities be stayed and not proceeded with unless permitted by this Hon’ble Court.” 12. The Registrar (Judicial) of this court to ensure compliance of this order and intimate this order to the Registrar, City Civil Court and other Courts where proceedings have been filed by the Respondent. The Respondent Mrs. Monica Nazareth also be intimated this order. 13. The Application to stand disposed of accordingly. (J.N. Patel,J.) (A.A. SAYED,J.)