Case: Sohan Lal Gupta(Dead) Thr.Lrs Vs. Smt. Asha Devi Gupta

objections for setting aside the award; having regard to the various developments which took place since the passing of the award. The prayer made in the said application reads as under: "That the objections raised on behalf of Shri Ghanshyam Das Gupta, the respondent No. 7 herein may be allowed to be withdrawn in respect of Awards dated 29th June, 1976 and 30th June, 1976 passed by Sole Arbitrator Shri P.J. Bhide and the said Awards be made the rule of the Court;" 40. Thus, the fact remains that unequivocally Ghanshyamdas Gupta had withdrawn his objections. He now seeks to resile therefrom by filing an application i.e. I.A. No. 19 of 2003 wherein he has prayed for discharge of his advocate. 41. Keeping in view the statements made by Ghanshyamdas Gupta in the said interim application, we are of the opinion that at this stage, he cannot be permitted to change his advocate, particularly in view of the fact that he stuck to his earlier stand for several years. 42. In view of the aforementioned, no orders are passed on I.A. Nos. 1 and 19. 43. Furthermore, in this case Ghanshyamdas Gupta expressly relinquished his right by filing an application stating that he would withdraw his objection. Such relinquishment in a given case can also be inferred from the conduct of the party. The defence which was otherwise available to Ghanshyamdas Gupta would not be available to others who took part in the proceedings. They cannot take benefit of the plea taken by Ghanshyamdas Gupta. Each party complaining violation of natural justice will have to prove the misconduct of the arbitrator tribunal in denial of justice to them. The appellant must show that he was otherwise unable to present his case which would mean that the matters were outside his control and not because of his own failure to take advantage of an opportunity duly accorded to him. [See Minmetals Germany Gmbh vs. Ferco Steel Ltd. [(1999) 1 All ER (Comm) 315]. This Courts decision in Renusagar Power Co. Ltd. vs. General Electric Co. [AIR 1994 SC 860 ] is also a pointer to the said proposition of law.44. Keeping in view the facts and circumstances of this case, we are of the opinion that Ghanshyamdas Gupta cannot be said to have been refused a fair opportunity of participation in the arbitration proceedings.45. So far as the other ground is concerned, which found favour of the High Court, namely, that the arbitrator had asked the parties to issue a letter to him that his award shall not be questioned would render the award a nullity inasmuch the same was not acted upon and in fact no letter was issued. The arbitrator must have done so keeping in view the peculiar nature of the disputes and to see that all the disputes come to an end.OTHER INTERLOCUTORY APPLICATIONS: 46. Several interlocutory applications have been filed, some of which are required to be dealt with. I.A. No. 15 in C.A. No. 2809 of 1979: 47. I.A. No. 15 has been filed at the instance of one of the parties herein for staying the auction of the properties belonging to M/s. Omrao Industrial Corporation Private Limited, Kanpur and Oil Corporation of India Private Limited, Kanpur. The auction of the properties was stayed by this Court by an order dated 20.1.2003. 48. The said auction was being held at the instance of Bank of Baroda in terms of a recovery certificate issued by the Debt Recovery Tribunal. The said proceeding was initiated by the Bank for enforcement of an equitable mortgage as also of guarantee. The dispute by and between a third party and a company has nothing to do with the question as to whether an award made by the arbitrator should be set aside or not. Whatever be the little connection, the same cannot be permitted to be agitated in this appeal. The parties must take recourse to such remedies which are available to them in law. The interim order dated 20.01.2003 is vacated. I.A. No. 17 in C.A. No. 2809 of 1979: 49. An application has also been filed for appointment of a receiver by the legal heirs of Respondent Nos. 12 to 15. Having regard to the fact that as a limited question arises for our consideration in these appeals, it may not be proper for us to pass any order on the said application. If any necessity arises, parties can file appropriate application for initiating appropriate proceedings before the appropriate forum. I.A. No. 3 in C.A. No. 2809 of 1979: Contempt Petition No. 484 of 1998: 50. Applications have been filed for initiating proceedings for contempt of this Court for alleged violation of this Courts orders dated 21.9.1979, 16.8.1982 and 20.10.1982. According to the applicant, Appellant No. 2 and 9 and respondent Nos. 1 to 4, 7, 19, 22 and 28 have violated the said orders by surrendering the tenancy rights purported to be in violation of order dated 16.8.1982. It is further alleged that several other appellants and respondents have similarly violated the interim orders passed by this Court. No order appears to have been passed on the contempt petition. A direction was merely issued that this matter ay be considered at the time of final hearing. 51. Keeping in view the fact that the appeal remained pending for a long time, it is not advisable that this Court now adjudicate upon the factual disputes. We, thus, do not intend to pass any order on the said applications. 52. We may, however, observe that an appropriate proceeding may be initiated by the parties concerned before the executing court, if any occasion arises therefor. I.A. No....... in C.A. No. 2809 of 1979 for substitution of L.Rs. of Deceased Respondent No. 5: 53. The I.A. is allowed. I.A. No...........in C.A. Nos. 2809-10 of 1979 for withdrawal of V/A on behalf of Appellant Nos. 9 and 10: 54. No orders are necessary to be passed. 55. For the reasons aforementioned, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]41. Keeping in view the statements made by Ghanshyamdas Gupta in the said interim application, we are of the opinion that at this stage, he cannot be permitted to change his advocate, particularly in view of the fact that he stuck to his earlier stand for several years.Furthermore, in this case Ghanshyamdas Gupta expressly relinquished his right by filing an application stating that he would withdraw his objection. Such relinquishment in a given case can also be inferred from the conduct of the party. The defence which was otherwise available to Ghanshyamdas Gupta would not be available to others who took part in the proceedings. They cannot take benefit of the plea taken by Ghanshyamdas Gupta. Each party complaining violation of natural justice will have to prove the misconduct of the arbitrator tribunal in denial of justice to them. The appellant must show that he was otherwise unable to present his case which would mean that the matters were outside his control and not because of his own failure to take advantage of an opportunity duly accorded to him. [See MinmetalsGermany Gmbh vs. Ferco Steel Ltd. [(1999) 1 All ER (Comm)315]. This Courts decision in Renusagar Power Co. Ltd. vs. General Electric Co. [AIR 1994 SC 860 ] is also a pointer to the said proposition of law.44. Keeping in view the facts and circumstances of this case, we are of the opinion that Ghanshyamdas Gupta cannot be said to have been refused a fair opportunity of participation in the arbitration proceedings.45. So far as the other ground is concerned, which found favour of the High Court, namely, that the arbitrator had asked the parties to issue a letter to him that his award shall not be questioned would render the award a nullity inasmuch the same was not acted upon and in fact no letter was issued. The arbitrator must have done so keeping in view the peculiar nature of the disputes and to see that all the disputes come to an end.