Durgaben S. Mallesha vs Sindhu Dhanajhi Jagdale And 2 Ors
2017 Latest Caselaw 1705 Bom

                                                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

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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

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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

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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

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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

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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

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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.

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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.)