1 211,212,213.APP-547,548&549.05.doc
sbw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.547 OF 2005
IN
ARBITRATION PETITION NO.487 OF 2003
Durgaben Shantilal Mallesha ...Appellant
vs.
Sindhu Dhanaji Jagdale & Ors. ...Respondents
WITH
APPEAL NO.548 OF 2005
IN
ARBITRATION PETITION NO.486 OF 2003
Shantilal Saremalji Mallesha ...Appellant
vs.
Sindhu Dhanaji Jagdale & Ors. ...Respondents
WITH
APPEAL NO.549 OF 2005
IN
ARBITRATION PETITION NO.485 OF 2003
Shantilal Saremalji Mallesha ...Appellant
vs.
Sindhu Dhanaji Jagdale & Ors. ...Respondents
Mr. Swapnil Bangar a/w Ashok V. Jain i/b. M/s. A.V. Jain and Associates
for the appellant.
Mr. Rajan Pawar i/b. Kumudin Sambhaji Shinde for the respondent
nos.1 to 3.
CORAM : A.S.OKA, &
A. K. MENON, JJ.
DATE : 13 th APRIL, 2017 ORAL JUDGMENT (PER A.S.OKA, J.)
1. Called out for the final hearing. The parties to the appeals are the same. The orders impugned are of the same date. The main ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 2 211,212,213.APP-547,548&549.05.doc impugned order is the subject matter of challenge in Appeal no.548 of 2005 which is dated 11th April, 2005 in Arbitration Petition no.486 of 2003. The impugned orders in the other two appeals are based on the order impugned in Appeal no.548 of 2005.
FACTS IN APPEAL NO.548 OF 2005
2. The appellant in Appeal no.548 of 2005 invoked the arbitration clause in the agreement for sale dated 16 th March, 2000 allegedly executed by one Dhanaji Hiraman Jagdale who was the husband of the respondent no.1 and the father of the respondent nos.2 to 4.
3. According to the case of the appellant, the said Dhanaji Hiraman Jagdale died on 23rd July, 2001 leaving behind the present respondents as his legal representatives. A legal notice dated 28 th January, 2002 was issued by the Advocate for the appellant to the respondent nos.1, 2 and 4 calling upon them to execute the conveyance in his favour in terms of the agreement dated 16 th March, 2000. The respondent nos.1 and 2 replied to the said notice through an Advocate. By way of reply, the execution of the said agreement by the said Dhanaji Hiraman Jagdale was denied. That is how the appellant purported to invoke the arbitration ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 3 211,212,213.APP-547,548&549.05.doc clause in the agreement.
4. In the statement of claim filed by the appellant before the learned Arbitrator, in paragraphs 2 and 7, he accepted that the respondents herein are the legal representatives of late Dhanaji Hiraman Jagdale. The claim made in the statement of claim was for a direction to the respondents to execute a conveyance in terms of the said agreement.
5. The respondent nos.1 and 3 filed their joint statement of claim before the sole Arbitrator contending that the deceased during his lifetime have never agreed to sell the property subject matter of the agreement dated 16th March, 2000. Their contention is that the said agreement was forged after the demise of the said Dhanaji Hiraman Jagdale. In clause (8) of the reply/statement of claim, the said respondents called upon the appellant to prove his case. Similarly, the respondent no.2 also filed a reply/statement of claim denying that any such sale transaction was executed by the said Dhanaji. Even the said respondent contended that the said agreement has been prepared after the death of the said Dhanaji.
6. Before the sole Arbitrator, the appellant did not lead any ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 4 211,212,213.APP-547,548&549.05.doc evidence. The respondents did not lead any evidence. An award was made on 3rd July, 2003 by the sole Arbitrator declaring that the appellant was the bonafide purchaser of the property in question and directing the respondents to execute a conveyance. The Arbitrator directed that on the failure of the respondent nos.1, 2 and 3 to execute the conveyance, the respondent no.4 will stand appointed as the Commissioner to execute the conveyance on behalf of the other respondents.
7. The award was subjected to a challenge by the respondent nos.1,2 and 3 by filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short "the said Act"). The respondent no.4 supported the appellant. By the impugned order, the learned Single Judge has allowed the petition and has set aside the award.
FACTS IN APPEAL NOS.547 AND 549 OF 2005
8. As far as the Appeal no.549 of 2005 is concerned, it arises out of the Arbitration Proceedings initiated at the instance of the appellant for enforcing another agreement dated 16 th March, 2000 allegedly executed by Dhanaji. As far as the Appeal no.547 of 2005 is concerned, the Arbitration clause was invoked for enforcing a similar agreement allegedly executed on the same ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 5 211,212,213.APP-547,548&549.05.doc day by the deceased Dhanaji. The contention raised by the respondent nos.1 to 3 was of denial of the execution of the agreements. In Appeal no.547 and 549, the similar awards were made by the sole Arbitrator which have been set aside by the learned Single Judge by relying upon the order dated 11 th April, 2005 passed in Arbitration Petition No.486 of 2003 which is the subject matter of Appeal no.548 of 2005.
9. The impugned awards have been set aside on the following grounds:-
(i) Though the signature of deceased Dhanaji on the agreements was denied, no oral evidence has been adduced by the appellant to prove the same;
(ii) Deceased Dhanaji was not the sole owner of the property subject matter of agreements and therefore, without joining the legal representatives of one Vimal who had jointly purchased the lands subject matter of the agreements, a decree of specific performance could not have been passed.
10. The first submission of the learned counsel for the appellants is that the respondent nos.1, 2 and 3 ought to have proved their contention that the agreements did not bear the signature of ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 6 211,212,213.APP-547,548&549.05.doc Dhanaji and in fact the agreements were not executed by him. He submitted that the said respondents did not discharge the burden on them. The second submission is that the respondent no.4 was one of the heirs of Dhanaji who has in fact executed a conveyance in favour of the appellants. Next submission is that as one of the legal representatives of Dhanaji had admitted the execution of the agreements by Dhanaji, there is no need for the appellants to prove the execution of the agreements by Danaji. Further it is submitted that earnest money was paid to deceased Dhanaji by cheque is evidenced by the agreements. Lastly, the learned counsel appearing for the appellants tried to rely upon the compilation of documents tendered in Appeal no.547 of 2005. On a query made by the Court, he fairly stated that the documents forming part of the compilation were neither produced before the Arbitrator nor before the learned Single Judge.
11. We have considered the submission. Not only by way of filing the statement of claim before the Arbitrator but by way of reply to the legal notice which was issued by the appellant, the respondent nos.1 to 3 denied the execution of the subject agreements by Dhanaji and contended that the said agreements ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 ::: 7 211,212,213.APP-547,548&549.05.doc have been created after the demise of Dhanaji, and therefore, the agreements are forged. The appellants could not have succeeded before the learned Arbitrator without proving the execution of the three agreements by the said Dhanaji. Admittedly, the appellants did not lead any evidence. Even assuming that the respondent no.4 admitted the execution of the agreements, the said admission was not binding on the respondent nos.1 to 3.
12. In view of the detailed submissions made by the learned counsel appearing for the appellants, we have also perused the awards of the learned Arbitrator which were challenged before the learned Single Judge. On careful perusal of the awards, we find that there is no finding recorded by the learned Arbitrator that by adducing legal evidence, the execution of the agreements by Dhanaji was proved by the appellants.
13. As the appellants were interested in enforcing the execution of the agreements, the burden was on them to prove the execution of the agreements by Dhanaji. Without proving the execution of the agreements, the appellants could not have succeeded. Therefore, we do not agree with the submission that a negative burden was on the respondent nos.1 to 3 to prove that the said Dhanaji had not signed the said agreements. ::: Uploaded on - 12/05/2017 ::: Downloaded on - 27/08/2017 23:07:30 :::
8 211,212,213.APP-547,548&549.05.doc
14. In the impugned orders, the learned Single Judge has specifically observed that though the execution of the agreements by the Dhanaji was denied, yet no attempt was made by the appellant to prove that the agreements were in fact singed by Dhanaji. Admittedly, the appellants did not lead any oral evidence.
15. Therefore, we find absolutely no error in the view taken by the learned Single Judge.
16. The appellants are not entitled to rely upon the documents in the compilation as the same were neither produced before the Arbitrator nor before the learned Single Judge. Even the documents in the compilation will not advance the case of the appellants any further as the appellants have failed to adduce evidence and to discharge burden on them to prove the execution of the agreements by Dhanaji.
17. Hence, there is no merit in the appeals and the same are accordingly disposed of.
18. No order as to costs.
(A. K. MENON, J.) (A. S. OKA, J.)
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