Bombay High Court
Jain Social Group Nashik And Anr vs Jain Social Groups International ... on 27 October, 2015
Bench: R.D. Dhanuka
ppn 1 arbp-1351.15 (j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.1351 OF 2015
1. Jain Social Group, Nashik )
having address at "Deepam," )
Shrihari Kute Marg, Near Chandak Circle )
Tidke Colony, Nashik - 422 002. )
Through its President )
Mr.Ajay Javherilal Bramhecha )
Aged 49 years, Occupation :Business, )
Residing at 7, Samruddhi Residency, )
Tilakwadi, Nashik - 422 002. )
2. Shri Mohan K.Bagmar
ig )
Aged 62 years, Occupation :Business, )
Residing at Matru Pitru Chaya, )
K.M. Bagmar Lane, Tilak Wadi, )
Nashik, Maharashtra - 422 002. ) .. Petitioners
(Orig. Claimants)
Versus
1. Jain Social Groups International Federation)
having address at 4/O-P, Vijay Chambers, )
4th floor, Tribhuvan Road, )
Opposite Dreamland Cinema, )
Mumbai - 400 004. )
2. Mr.Hareshbhai K.Vora )
Aged 62 years, Occupation :Business, )
Residing at 27, Arihant, New Jagnath Plot, )
Rajkot, Gujarat. )
3. Smt.Kiranben Ashok Jain )
Aged 50 years, Occupation :Business, )
Residing at 29, Rokadnath Society, )
Racecourse, Vadodara, Gujarat. ) .. Respondents
(Orig. Respondents)
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Mr.M.S. Karnik i/by Mr.Rahul Motkari for the Petitioners.
Dr.Birendra Saraf a/w Mr.Rohan Savant a/w Mr.Nikhil Rajani a/w
Mr.Nilesh Bamne i/by M/s.V.Deshpande & Co. for the Respondents.
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CORAM : R.D. DHANUKA, J.
RESERVED ON : 19th October 2015.
PRONOUNCED ON : 27th October 2015.
Judgment :-
. By this petition filed under section 34 of the Arbitration &
Conciliation Act, 1996 (for short "Arbitration Act") the petitioners have
impugned the arbitral award dated 17th July 2015 passed by the arbitral
tribunal dismissing the claim filed by the petitioners. Some of the
relevant facts for the purpose of deciding this petition are as under :
2. The petitioners were the original claimants whereas, the
respondents were the original respondents in the arbitral proceedings.
The petitioner no.1 is an association of persons consisting of Jain
individuals situated at Nashik and is operative in Nashik. The respondent
no.1 is a Federation of all the Jain groups located all over the world.
The petitioner no.1 is also a Member of the respondent no.1. The
respondent no.2 was the President of the respondent no.1 for the
period 2014-15. The respondent no.3 was the Vice President of the
respondent no.1 for the tenure of 2014-15. The petitioner no.2 is a
Member of the petitioner no.1. The respondent no.1 is governed by its
Constitution which is annexed at Exhibit-B to the petition.
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3. The Managing Committee of the respondent no.1 as per its
Constitution is as under :-
a) President.
b) President Elect-1.
c) President Elect-2.
d) Immediate Former President.
e) Vice President (total-5).
f) Vice President (Overseas).
g) Secretary General.
h) Secretary.
i) Joint Secretary.
j) Treasurer.
4. The tenure of the Managing Committee of the respondent
no.1 is for one year commencing from 1st April of every year upto
31st March of next year and the elections are held every year. However,
for the post of President and President Elect-1, no election was held.
Every year, the current President Elect-1 automatically becomes the
President of next coming year and the current President Elect-2
automatically becomes the President Elect-1 of next coming year.
5. It is the case of the petitioners that the petitioner no.1 had
nominated its former President i.e. petitioner no.2 as its representative
and accordingly, he was initially elected upon the Managing Committee
as Vice President for 5 terms and for the year 2013-14 for the post of
President Elect-2. It is also the case of the petitioner no.1 that for the
year 2014-15, the petitioner no.2 thus automatically became the
President Elect-1 and as per the Constitution and structure of the
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respondent no.1, the petitioner no.2 further automatically become
eligible as President for the year 2015-16 starting from 1 st April 2015
upto 31st March 2016.
6. It is the case of the petitioners that due to dirty politics
played by the respondent nos.1 to 3 alongwith the other individuals and
due to his dissatisfaction with the Managing Committee members, it
became difficult for the petitioner no.2 to work peacefully as President
Elect-1. On 21st August 2014, the petitioner no.2 tendered his resignation
from the post of President Elect-1 to the respondent no.2 being the then
President of the respondent no.1. It is the case of the petitioners that
due to the said incident, all the other Committee members from Nashik
region also tendered their resignations on the same day by writing
separate letters. On 21st August 2014, totally 12 members had resigned
from their respective posts. It is the case of the petitioners that all
these resignations were received by the respondent no.1 immediately
and till 9th November 2014, no action was taken upon the said
resignations by the respondent no.1 and were not accepted. All such
persons were working as the Managing Committee members on their
respective posts.
7. It is the case of the petitioners that all such Managing
Committee members, who had tendered their respective resignation,
however, due to persistence of the community members and in view
of the larger interest of the Jain community, all of them including the
petitioner no.2 addressed a letter dated 7 th November 2014 and withdrew
their resignation. The respondent no.2 being the then President of the
respondent no.1 was also informed about the withdrawal of such
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resignation by the petitioner no.2 and the other Committee members by
personal hand delivery of the letter dated 7th November 2014 and also
by e-mail.
8. On 9th November 2014, the Managing Committee members
of the respondent no.1 had alleged to have held a meeting in which the
resignation of the petitioner no.2 was accepted. In so far as the other
seven Managing Committee members who had tendered the resignations
along with the petitioner no.2 are concerned, their resignations were
rejected.
9. The respondent no.2 by his letter dated 20 th November
2015 informed the petitioner no.2 that his resignation had been accepted
on 9th November 2014. It is the case of the petitioners that the respondent
nos.1 and 2 did not send a copy of the Minutes of Meeting dated 9 th
November 2014 to the petitioners even till the proceedings were filed
by the petitioners before the arbitral tribunal. Only during the course of
the arbitral proceedings, the respondents had placed reliance on the
said Minutes of Meeting. The petitioner no.2 vide his letter dated 2 nd
February 2015 made a grievance to the petitioner no.1 about acceptance
of the resignation of the petitioner no.2.
10. The petitioners preferred an application on 19 th February
2015 to the respondent no.1 and sought appointment of an arbitrator for
resolving the dispute. The petitioner no.1 also addressed a letter on 4 th
March 2015 to the respondent no.1. The respondent no.1 through its
Secretary General issued a notice and agenda dated 5 th March 2015
calling for a meeting to be held on 11 th March 2015 for deciding the
ppn 6 arbp-1351.15 (j).doc
subject of appointment of an arbitrator and for resolving the dispute in
respect of the application dated 19th February 2015 made by the
petitioners. A copy of such agenda was not furnished to the petitioners.
It is the case of the petitioners that when the petitioner no.2 had gone
to attend the meeting of another sister association i.e. Jain Social
Groups Federation Foundation at the same venue and the same time,
he came to know about such meeting.
11. The petitioner no.2 accordingly attended the said meeting
at 12 noon on that day. In the said meeting, the said agenda was not
discussed and arbitrator was not appointed by the respondent no.1. It is
the case of the petitioners that the respondent no.1 issued another notice
and agenda dated 5th March 2015 under the signature of the then
President i.e. respondent no.2 which were received by the petitioner no.2
wherein it was stated that the respondent no.3 as the President of the
respondent no.1 will address her welcome speech and an opening remark
as a President for the year 2015-16 on 26th March 2015 at 6.00 p.m.
alongwith the other matters at Hyderabad.
12. On 18th March 2015, the petitioner no.1 also preferred an
Arbitration Case No.6 of 2015 in the Court of the Principal and District
Judge at Nashik. The said application was opposed by the respondents
by filing a reply dated 24th March 2015 on the ground that the
resignation letter dated 21st August 2014 was already accepted and
therefore, there was no question of withdrawing the resignation on 7 th
November 2014. The learned Principal and District Judge, Nashik
however in view of Clause 29 of the Constitution of the respondent no.1
about jurisdiction to Court at Mumbai, by an order dated 25 th March
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2015, disposed of the said application and granted liberty to the
petitioners to institute a case in appropriate Court.
13. The petitioners thereafter filed Arbitration Petition (L)
No.553 of 2015 in this Court. On 27th March 2015, this Court granted
ad-interim relief in favour of the petitioners directing that the
respondent no.1 shall not administer an oath to the respondent no.3 and
her team to take charge of the office of the President.
14. This Court by an order dated 23rd April 2015 disposed of
the said Arbitration Petition (L) No.553 of 2015 and by consent of the
parties, appointed an arbitrator with a direction to adjudicate the dispute
and differences between the parties and to pass an award within one
month from the date of the said order and continued ad-interim relief
granted on 27th March 2015 in the meantime. The petitioners submitted
their statement of claim before the learned arbitrator inter alia praying
for various reliefs including for a declaration that the appointment of
the respondent no.3 or any other person, except the petitioner no.2, as
President of the respondent no.1 for the year 2015-16 with effect from
1st April 2015 onwards was ex facie illegal and void ab-initio and that
the petitioner no.2 is the President of the respondent no.1.
15. The learned sole arbitrator rendered an award dated 5 th
May 2015 declaring that from 1 st April 2015 upto 9 th May 2015, the
petitioner no.2 was the President of the respondent no.1 and from 10 th
May 2015 upto 31st March 2016, the respondent no.3 was the
President of the respondent no.1. The learned sole arbitrator did not
decide the controversy about the legality of the withdrawal and
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acceptance of the resignation of the petitioner no.2. The petitioners
challenged the said award in this Court by filing the Arbitration
Petition (L) No.952 of 2015. By an order dated 8 th May 2015, this Court
disposed of the said Arbitration Petition (L) No.952 of 2015 and the
arbitral award dated 5th May 2015 was set aside and referred the
dispute to a panel of three arbitrators.
16. The arbitral tribunal was directed to pass a fresh award
without being influenced by the observations, findings and conclusion of
the learned sole arbitrator rendered in the award dated 5th May 2015.
The parties were granted liberty to file pleadings, documents and
evidence in addition to earlier pleadings. This Court directed the
arbitral tribunal to make an endeavour to pass an award within 60 days
from the date of first meeting. This Court also continued the ad-interim
relief granted on 27th March 2015 in the meantime and also for a
period of four weeks from the date of declaration of the award. Both the
parties filed their additional pleadings before the arbitral tribunal. The
respondent no.1 also filed their affidavit-in-reply.
17. On 17th July 2015, the arbitral tribunal made an arbitral
award and rejected the statement of claim filed by the petitioners. The
said arbitral award is impugned by the petitioners in this petition on
various grounds.
18. Mr.Karnik, learned counsel for the petitioners submits that
there is no provision in the Constitution of the respondent no.1 regarding
tendering and acceptance of the resignation. He submits that the
petitioner no.2 as well as seven other Committee members had tendered
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their resignation to the respondent no.1 on 21 st August 2014. He submits
that the said resignation tendered by the petitioner no.2 and the seven
other Committee members were not accepted by the respondent no.1
any time prior to 7th November 2014. He submits that vide letter dated
7th November 2014, the petitioner no.2 and the other seven Committee
members withdrew their resignation with immediate effect. It is
submitted by the learned counsel that the petitioner no.2 was informed
for the first time by the respondent no.1 vide their letter dated 20 th
November 2014 that the resignation of the petitioner no.2 was accepted
for the post of President Elect-1 with a great regret by the Office Bearers
and Board of International Directors in the meeting held on 9 th
November 2014. The petitioner no.2 was also conveyed that as per the
alleged desire of the petitioner no.2, the respondent no.1 has not accepted
the resignation of the other members of the Committee. It was
mentioned in the said letter that the resignation of the petitioner no.2 for
the post of President Elect-1 was accepted but his active contribution
for the enhancement of Jain Social Group movement would be highly
appreciated. He submits that since the petitioner no.2 had already
withdrawn his resignation vide letter dated 7 th November 2014, the
respondent no.1 could not have accepted the resignation of the petitioner
no.2 dated 21st August 2014 after withdrawal of the said resignation and
the same was improper and illegal.
19. It is submitted by the learned counsel for the petitioners that
the respondent no.1 did not admittedly accept the resignation of the
other seven Committee members in the said meeting which would
indicate that the act of the resignation of the withdrawal was not an
unilateral act and was required to be accepted or rejected subsequently
ppn 10 arbp-1351.15 (j).doc
by the respondent no.1 and until such decision was taken, the person
tendering the said resignation enjoys the said post. The petitioners have
referred to the judgment of the Supreme Court in the case of Power
Finance Corporation Ltd. Vs.Promod Kumar Bhatia, reported in (1997)
4 SCC 280 as well as the judgment of the Division Bench of this Court
in the case of Rakesh Rai Vs.M/s.National Aviation Company of India
& Anr., decided on 8th July 2013 in Writ Petition No.287 of 2003.
20. Learned counsel appearing for the petitioners submits that
the respondent no.3 could not have been appointed directly to the post of
President Elect-1 in place of the petitioner no.2 and consequently to the
post of the President. He submits that the appointment of the respondent
no.3 was totally illegal. He submits that though in the impugned award,
the arbitral tribunal has rendered a finding that in view of clauses 12(A)
(iii) and 12(B)(v) of the Constitution of the respondent no.1-Federation,
the respondent no.3 was not eligible for the post of President Elect-1 and
thereafter to the post of President, the arbitral tribunal rejected the
entire claim filed by the petitioners. He submits that the award shows
patent illegality. Though the finding of illegal appointment of the
respondent no.3 was rendered by the arbitral tribunal in the impugned
award against the respondent no.3 and in favour of the petitioners, the
entire claim of the petitioners came to be rejected illegally.
21. Learned counsel appearing for the petitioners also invited
my attention to the agenda dated 27th October 2014 which reads thus:-
"to decide the situation on receipt of resignation of Shri
Mohan Bagmar from the post of President Elect-1 & Office
Bearers of Nashik Zone."
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My attention is also invited to the Resolution dated 9 th
November 2014 passed by the respondent no.1 and in particular
paragraph 4 thereof stating that "after long discussion the resignation
of Shri Mohan Bagmar, President Elect-1 has been accepted with great
regret." In the said paragraph, it is also recorded that it is also decided
that the resignations of other Office Bearers of Maharashtra Region
Resignation have been not accepted & has given instruction to
Maharashtra Region to restore original posts to all Office Bearers who
have offered the resignation." It is submitted by the learned counsel for
the petitioners that it is thus clear that the resignation of the petitioner
no.2 was accepted for the first time only in the said meeting held on 9 th
November 2014 which was after withdrawal of such resignation of the
petitioner no.2.
22. Learned counsel for the petitioners submits that in the letter
of the respondent no.1 dated 20th November 2014, the respondent no.1
has referred to the resignation letter dated 21 st August 2014 and
withdrawal email dated 7th November 2014 which clearly indicate that
the respondent no.1 had already received email of 7 th November 2014
withdrawing the resignation dated 21st August 2014. He submits that
the respondent no.1, however, in the said letter alleged that there was a
subsequent telecommunication between the parties and in view thereof,
the respondent no.1 had accepted the said resignation of the petitioner
no.2 dated 21st August 2014 in the meeting held on 9th November 2014.
23. Learned counsel for the petitioners invited my attention to
the affidavit-in-reply filed by the then Secretary General of the
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respondent no.1 before the arbitral tribunal accepting the fact that even
after withdrawal of the resignation of the petitioner no.2, the Board of
Directors had accepted by majority the resignation after two days
which was done inadvertently. In the said affidavit-in-reply, it was
admitted that the issue of withdrawal of the resignation was considered
in the meeting held on 11th March 2015 and after a long discussion, it
was decided by all the members present in the said meeting that in
order to strengthen the Jain Social Group movement the matter should
be referred to four former Presidents to take the appropriate and
necessary decision about the subject within one week. However, since
no appropriate and necessary decision was taken by those members
within one week, the petitioners approached this Court. In paragraph 5
of the affidavit-in-reply, it was stated that the respondent no.1 was not
denying any of the claims of the petitioners which were rightful under
the Constitution and, therefore, whatever decision taken by the arbitral
tribunal would be acceptable by the respondent no.1.
24. It is submitted that though the said affidavit-in-reply was
filed by an authorised representative and the then Secretary General of
the respondent no.1 before the arbitral tribunal, the arbitral tribunal
considered the affidavit-in-reply dated 12th June 2015 filed by one
Mr.Haresh Vora, purportedly representing the respondent no.1 whose
term as President for the year 2014-15 had already come to an end. He
submits that the arbitral tribunal could not have ignored the affidavit-in-
reply already filed by the respondent no.1 which was forming a part of
the record and could not have considered the second affidavit-in-reply
which was inconsistent with the stand already taken by the respondent
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no.1 in the earlier affidavit-in-reply which was filed through the Secretary
General, the authorised representative of the respondent no.1.
25. Dr.Saraf, learned counsel appearing for the respondents, on
the other hand, submits that since there was no provision in the
Constitution of the respondent no.1 to accept the resignation tendered by
any members, the said resignation immediately came into effect upon
receipt of such resignation by the respondent no.1. He submits that
merely because the respondent no.1 passed a separate Resolution which
was in subsequent point of time after purported withdrawal of such
resignation of the petitioner no.2, the same was of no consequence. The
act of withdrawal of the resignation of the petitioner no.2 was an
unilateral act and thus the same came into effect immediately upon the
petitioner no.2 tendering such resignation. Learned counsel submits that
the arbitral tribunal has already considered this issue at length by
considering the provision of the Constitution of the respondent no.1 and
the award thus cannot be interfered with by this Court under Section 34
of the Arbitration Act. He submits that the impugned award is in
consonance with the principles of the law laid down by the Supreme
Court in the case of Moti Ram Vs.Param Dev & Anr., reported in AIR
1993 SC 1662 and in particular paragraphs 15, 20 and 21 thereof.
26. Reliance is also placed on the judgment of this Court in the
case of Prakash Mahadeo Khot & Ors. Vs.Maruti Dadu Khot & Ors.
reported in 2005(4) Bom.C.R. 568. He submits that if the resignation is
a bilateral act in the sense that an acceptance of the resignation is
necessary before it is effective, than only the person tendering resignation
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can withdraw it before its acceptance. The petitioner no.2 could not have
withdrawn such resignation under the Constitution of the respondent
no.1 as the said act was unilateral act and thus came into force
immediately. The respondent no.1 was not required to take any action
on such resignation letter.
27. In so far as the submission of the learned counsel for the
petitioners that the learned arbitrator could not have considered the
second affidavit-in-reply filed by the then President of the respondent
no.1 is concerned, he submits that since the earlier affidavit-in-reply/
statement of defence filed by the Secretary General of the respondent
no.1 who was not an authorised representative, the arbitral tribunal was
justified in relying upon the second affidavit-in-reply of the respondent
no.1.
28. In so far as the submission of the learned counsel for the
petitioners that the arbitral tribual having rendered the finding against
the respondent no.3 and in favour of the petitioners to the effect that the
appointment of the respondent no.3 was illegal and the arbitral tribunal
having rejected the claim filed by the petitioners is concerned, he
submits that the said finding of the arbitral tribunal is totally perverse
and contrary to the Constitution of the respondent no.1. He submits that
since the entire claim made by the petitioners came to be rejected by the
arbitral tribunal, the respondents could not impugn that part of the award
by filing a petition under Section 34 of the Arbitration Act. He submits
that his clients have no objection if only that part of the arbitral award
is set aside by this Court. Learned counsel appearing for the petitioners
did not agree to this suggestion and submits that said finding in favour
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of the petitioners cannot be set aside in view of the respondents not
having challenged the same.
29. In his rejoinder submission, the learned counsel for the
petitioners distinguishes the judgments relied upon by the learned
counsel for the respondents on the ground that in this case, the
resignation was a bilateral act which has been established in view of the
fact that the issues regarding letter of the resignation tendered by the
petitioner no.2 as well as the letter of withdrawal of the resignation
were discussed and were subject matter of agenda in the meeting held on
11th March 2015 and after detailed discussion, the resignation of the
petitioner no.2 was subsequently accepted in the said meeting. He laid
emphasis on the fact that the respondent no.1 refused to accept the
resignations of other seven members in the said meeting which also
would indicate that the resignation was not an unilateral act but was a
bilateral act. Learned counsel for the petitioners submits that none of the
judgments relied upon by the learned counsel for the respondents would
assist the case of the respondents but would assist the case of the
petitioners.
REASONS AND CONCLUSIONS :-
30. There is no dispute that in the Constitution of the respondent
no.1, there was no provision for tendering resignation by any of the
members or acceptance thereof by the respondent no.1. It is also not in
dispute that the petitioner no.2 had tendered resignation on 21 st August
2014 which was received by the respondent no.1. There is no dispute
that the petitioner no.2 had withdrawn the said resignation by his email
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dated 7th November 2014 which was received by the respondent no.1.
A perusal of the record indicates that alongwith the petitioner no.2, other
seven members also had tendered their respective resignation on 21 st
August 2014. All such seven members had withdrawn their resignations
letters vide email dated 7th November 2014 duly received by the
respondent no.1 on the same day.
31. A perusal of the Minutes of Meeting dated 9 th November
2014 and notice and agenda of the said meeting clearly indicates that the
respondent no.1 had proposed to take decision on the resignation of the
petitioner no.2 and other seven members in the said meeting. A perusal
of the Minutes of Meeting clearly indicates that the International
Directors of the respondent no.1 who were present in the said meeting
had long discussion on the resignation of the petitioner no.2 and only
after such a long discussion, the resignation of the petitioner no.2 had
been accepted and that also with a great regret. The said Resolution
further indicates that the resignation of the other seven members had not
been accepted in the said meeting. In my view, it is thus clear beyond
reasonable doubt that the resignation of the petitioner no.2 and the
other seven members were not accepted prior to the date of the said
meeting held on 9th November 2014. It is also clear beyond reasonable
doubt that before such decision was taken by the respondent no.1 in the
said meeting held on 9th November 2014, the petitioner no.2 as well as
the other seven members had already withdrawn their respective
resignation.
32. In my view, in view of the subsequent action on the part of
the respondent no.1 i.e. by placing the resignation in agenda for having
ppn 17 arbp-1351.15 (j).doc
discussion thereon in the meeting and thereafter having lengthy
discussion on the said resignation in the said meeting, it is clear that
issue of resignation is not an unilateral act but was a bilateral act. In my
view, it is not the case of the respondents that there was any provision
in the Constitution that the resignation tendered by any member would
come into effect immediately upon the receipt thereof by the
respondent no.1 and is not required to be accepted. In my view, the
judgment of the Supreme Court in the case of Moti Ram Vs.Param Dev
& Anr. (supra) and the judgment of this Court in the case of Prakash
Mahadeo Khot & Ors.(supra)
ig would not assist the case of the
respondents but would assist the case of the petitioners.
33. In my view, since the resignation was a bilateral act, the
respondent no.1 having accepted it after withdrawal of such resignation
by the petitioner no.2, the action on the part of the respondent no.1 in
accepting such resignation was illegal and was of no effect. The
impugned award shows patent illegality in rejecting the contention of
the petitioners and in accepting the contention of the respondents by
treating such resignation as an unilateral act and totally overlooking
subsequent admitted events having taken place. It is not the case of the
respondents that the resolution passed by the respondent no.1 is illegal.
The alleged telecommunication between the parties referred in the
letter dated 20th November 2014 of the respondent no.1 was neither
proved before the arbitral tribunal by the respondent no.1 nor the
arbitral tribunal has considered such alleged telecommunication in the
impugned award. Be that as it may, the said letter of the respondent
no.1 alleging that resignation of the petitioner no.2 was accepted in
ppn 18 arbp-1351.15 (j).doc
view of alleged telecommunication would also indicate that till such
alleged telecommunication, the respondent no.1 had not accepted such
resignation and the said resignation had not come into effect
immediately.
34. A perusal of the impugned award indicates that though the
arbitral tribunal has rendered a finding in favour of the petitioners and
against the respondent no.3 to the effect that the appointment of the
respondent no.3 was illegal, the arbitral tribunal did not grant prayer
(b) of the statement of claim. In my view, since the arbitral tribunal had
come to the conclusion that the appointment of the respondent no.3 itself
was illegal, the arbitral tribunal ought to have granted relief in terms of
prayer clause (b) of the statement of claim. The award shows patent
illegality and non-application of mind on the part of the arbitral tribunal
and clear perversity.
35. A perusal of the record also indicates that though the
respondent no.1 had already taken a particular stand in the arbitral
proceedings by filing an affidavit-in-reply through the Secretary General
of the respondent no.1 who was admittedly holding the said post and
was authorised representative of the respondent no.1, the arbitral tribunal
overlooked the averments made in the affidavit-in-reply and considered
the affidavit-in-reply filed by Mr.Haresh Vora who was not even the
President of the respondent no.1 on the date of filing of the affidavit-in-
reply. The respondents could not demonstrate as to why the Secretary
General of the respondent no.1 was not authorised by the respondent
no.1 to file such affidavit. In my view, the arbitral tribunal has totally
ppn 19 arbp-1351.15 (j).doc
overlooked and ignored the affidavit-in-reply already filed by the
respondent no.1 in the impugned award.
36. In my view, there is no merit in the submission of the
learned counsel for the respondents that merely because the respondent
no.1 had considered the resignation of the petitioner no.2 after receipt
of the letter dated 7th November 2014 purporting to withdraw the said
resignation dated 21st August 2014 and passing a Resolution after
such withdrawal is of no consequence. It is not disputed by the
respondents that the resignation tendered by other seven members on
21st August 2014 along with the petitioner no.2 and withdrawn on the
same day i.e. on 7th November 2014 though came into effect upon
tendering such resignation, the respondent no.1 could still reject such
resignation subsequently. In my view, the respondent no.1 could not
take different stand in respect of resignation of the petitioner no.2 than
what was taken in respect of other seven committee members whose
resignations were rejected. The fact that these resignations were
placed for discussion and for acceptance itself presupposes that the
same did not come into effect when tendered by the petitioner no.2
and other seven committee members.
37. In view of the respondent no.1 refusing to accept the
resignations of other seven members subsequently in the said meeting
held on 9th November 2014 would clearly indicate that the said
resignations did not come into effect immediately upon tendering the
same by the petitioner no.2 as well as by the other seven members. It is
not the case of the respondent no.1 that the resignations of the other
seven Committee members were wrongly refused in the said meeting
ppn 20 arbp-1351.15 (j).doc
held on 9th November 2014. The stand taken by the respondent no.1,
in my view, shows inconsistency and belies the fact that the issue of
resignations was a bilateral act.
38. In my view, the findings of the arbitral tribunal in the
arbitral award in so far as the appointment of respondent no.3 is
concerned has achieved finality and cannot be set aside.
39. I therefore pass the following order:-
(a) The arbitral award dated 17th July 2015 passed by the arbitral
tribunal annexed at Exhibit A to the petition is set aside except
the finding in so far as the appointment of respondent no.3 is
concerned;
(b) Arbitration Petition No.1351 of 2015 is allowed in aforesaid terms;
(c) There shall be no order as to costs.
R.D. DHANUKA, J.
