Milind R. Khanolkar vs Peter A D'Souza & Ors
2009 Latest Caselaw 80 Bom

Citation : 2009 Latest Caselaw 80 Bom
Judgement Date : 14 December, 2009

Bombay High Court

Milind R. Khanolkar vs Peter A D'Souza & Ors on 14 December, 2009

Bench: Anoop V.Mohta

                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                      
            ARBITRATION PETITION NO.290 OF 2009




                                              
     Milind R. Khanolkar                             ..Petitioner

                 V/s.




                                             
     Peter A D'Souza & ors                           ..Respondents

     Mr.A.Y.Sakhare with Mr.M.Khandeparkar
     i/b.Kanga & Co., Advocate, for the petitioner




                                  
     Mr.Satish Mishra i/b.Mr.A.M.Saraogi, Advocate,
     for respondent No.2
                      
                        CORAM      :       ANOOP V. MOHTA, J.
                     
                        DATE       :       14TH DECEMBER, 2009

     JUDGMENT

Heard finally.

. The petitioner has invoked Section 34

of the Arbitration and Conciliation Act, 1996

(for short, the Arbitration Act) and thereby

challenged the Award dated 20th October,

2005/29th November, 2008. The facts as

recorded are as under :-

2. As alleged, the petitioner is the

citizen of India and a partner of M/s.Shilpa

Builders a partnership firm being Respondent

No.3 herein. Respondent No.2 is an Indian

Inhabitant and is also a partner of M/s.Shilpa

Builders being Respondent No.3 herein.

Respondent No.1 is not known to the petitioner

and not seen by the petitioner. Respondent

No.1, however, claims to have obtained an

Award against the Petitioner and Respondent

No.3 being Award dated 20th October, 2005/29th

November, 2008 which is challenged in the

present Petition.

3. The Petitioner is filing this Petition

for setting aside the purported Arbitration

Award dated 20th October, 2005 alleged to have

been signed on 29th November, 2008.

4. The Petitioner says that to his utter

shock he received on 2nd day of March, 2009 a

copy of the Affidavit of Shri S.V.Prakash the

Authorised Signatory of the said Shilpa Co-

operative Housing Society Ltd. in Execution

Application No.461 of 2008 in Award dated 20th

October, 2005. Reading the said Affidavit he

learnt that Respondent No.1 had filed an

application for execution of the Award dated

20th October, 2005 and has taken out Chamber

Summons No.13 of 2009 therein for Interim

reliefs. The petitioner says that the said

Award is false, forged and fabricated document

created in

collusion and conspiracy between

Respondent Nos.1 and 2 (No.2 acting for self

and as partner of the Respondent No.3) and the

said alleged Arbitrator, and the same is

liable to be set aside.

5. This is a peculiar matter whereby

after hearing both the parties in Chamber

Summons No.13 of 2009 the learned Single Judge

(Dr. Justice D. Y. Chandrachud) has passed the

following Order.

11.The facts that have come before the Court demonstrate that an arbitral award allegedly of 2005 is sought to be set up much after a registered deed of conveyance

was executed in favour of the co-operative society on 24th March, 2006. The alleged

arbitral award was sought to be set up not at the first

available opportunity when the Advocate for Shilpa Builders addressed a letter dated 16th July, 2008. It is in a letter

dated 03rd August, 2008 that reference to the arbitral award is to be found. Then again, there is an ambiguous statement that the award came

to be passed somewhere in 2005 or so.

ig The arbitral award purports to have been made on 20th October, 2005 and it has been submitted that the award

has been ante dated to a date prior to the execution of the registered deed of conveyance in favour of the society. As

already noted above, the ante dating is obvious because the

stamp paper on which the award is made is dated 29th November, 2008. An alleged agreement of 23rd October, 1981 is the basis

and foundation of the award. No arbitration agreement or minutes of meetings before the arbitrator are forthcoming. Evidently, limitation was not

even set up as a defense though the alleged arbitral proceedings commenced 27 years after the date of the alleged agreement. The form and structure of the Arbitration and Conciliation Act, 1996 have been palpably misused to set up a document with an object and intent to impede

the rights of a third party namely, the co-operative society who was not a party to

the alleged arbitral proceedings. The whole

process of arbitration in the present case is sham. The present case is an instance of one where a palpably

fabricated plea is sought to be set up to misuse the process of this Court in execution of a decree to affect the rights of a third

party. Such conduct has to be depreciated in the strongest

possible terms. It is unfortunate that pleadings solemnly affirming to the

regularity of such proceedings have been filed in this Court.

6. Appeal No.474 of 2009 was preferred by

respondent No.1 herein. There was no

challenge made by respondent No.2. The

observations in the Order so made as quoted

above, remained intact for all the purposes.