Surinder Kaur Bhalla vs Bawa Ashpal Singh Bhalla
1990 Latest Caselaw 408 Del

JUDGMENT

R.L. Gupta, J.

(1) Plaintiff who is the mother of the defendant has filed the present suit for a declaration that she is the sole owner of House No. A-1/154, Safdarjung Enclave, New Delhi and that her son the defendant has no title or proprietory right in the aforesaid property. The allegations are that her deceased husband was granted perpetual lease of land of the plot underneath this house by the President of India vide the perpetual lease deed dated 9th August, 1964. The deceased raised construction over this plot and thereafter was in occupation and management of this house during his life time. He died on 11th June, 1986. On 1st August, 1985 the deceased executed a Will of his properties, both moveable and immoveable (including the house in dispute). It is further alleged that after the death of the husband, the defendant became inimical to the plaintiff and started harassing her. According to the Will she is the sole owner of the aforesaid property. Some of its clauses are enumerated in para 6 of the plaint. For some time before the filing of the suit, defendants is alleged to be openly threatening the plaintiff that he would sell away or mortgage the house to some person to the detriment of the plaintiff, thereby casting a cloud on the title of the plaintiff; hence this suit.

(2) On being served, defendant moved this application under Section 34 of the Indian Arbitration Act staling that after the death of his father an agreement was entered into between the parties appointing S/Sh. Surjit Singh Bhalla and Ranjit Singh Bhalla as Arbitrators. There is' no reference to the arbitration clause in this application. However, a copy of arbitration agreement has been filed as an Annexure to this application. Besides this arbitration agreement a copy of another agreement between the parties has also been filed which shows that some of the disputes between the parties pertaining to this house as well as some business firms of the deceased were settled between the parties by the aforesaid arbitrators. Both the agreement as well as separate arbitration agreement are dated 20th April, 1987. Clause 11 of the agreement further states that the parties have signed a separate agreement by which they have agreed to appoint the same persons as Arbitrators. Relevant portion of the separate agreement is as follow : "Where as disputes and differences arose on 19-4-87 between Mrs. Surinder Kaur Bhalla (plaintiff) w/o Late Bawa Manak Singh Bhalla, r/oA-l/154, Safdarjung Enclave, New Delhi, party of the first part and Shri Ashpal Singh Bhalla (defendant).................. And whereas these differences and disputes were amicably settled between the parties with the arbitration of S/Sh. Surjit Singh Bhalla and Ranjit Singh Bhalla. Now, therefore, the said parties hereby agree to appoint the following their arbitrators and further agree to refer all their future disputes and differences to the below named two arbitrators who shall enter into reference whenever any dispute occurs between the parties to the agreement. The parties to the agreement further agree that the award given by the arbitrators on any dispute or difference so arisen shall be final and binding on both the parties.........................................."

(3) In view of the aforesaid agreement the defendant prayed in this application that the proceedings in the present suit may be stayed.

(4) By means of reply the plaintiff said that no such valid agreement was there between the parties. Besides that the subject matter of the dispute was in no way concerned with any such agreement. The plaintiff further said that her rights as owner of the suit property and the subject matter of the present suit were not and could not be subject to any so called arbitration agreement. The plaintiff has narrated further circumstances and events to show how her deceased husband was unhappy with the life style of the defendant and why he decided to deprive him of any benefit in his estate. But I think the narration of those circumstances are not relevant to the merits of this application and, therefore, those circumstances need not be extracted in this order. The further thing relevant to this application which is stated by the plaintiff is that the so called arbitrators did not intervene in the problems raised by the defendant. Rather Surjit Singh Bhalla who happens to be her brother-in-law (Dewar) on being asked to intervene threatened the plaintiff on telephone not to write any letter to him or else she will face dire consequences. The aforesaid agreement which is described as a family arrangement by the plaintiff is further stated to have been signed by her under coercion and compulsion because she wanted peace for herself. She was asked to put her signatures at about 1.00 Am when she was in completely shattered health. According to that arrangement the defendant was to pay Rs. 57,000.00 to her in monthly Installments of Rs. 10,000.00 but he paid only Rs. 27.000.00 . Another cheque of Rs. 3,000.00 issued by him to her was dishonoured. The defendant is alleged to have wrongly taken over the business of Himalaya Timber Traders after snatching keys of the firm from her and literally pushed her out. She has narrated further grievances also.

(5) I have heard arguments advanced by learned counsel for the parties and have given my careful consideration to all the circumstances involved in this application. Photo copy of the agreement filed by the defendant along with this applications support the averments of the plaintiff that he was to pay her Rs. 57,000.00 in monthly Installments of Rs. 10,000.00 . This fact is not denied on behalf of the defendant because he did not file any rejoinder to the reply. Even during the course of the arguments learned counsel for the defendant did noc deny this fact. There was a portion of premises A/2154. D, Gupta Road, Paharganj, New Delhi wherein Saw Mill under the name and style of Himalaya Timber Traders was running and which was stated to be placed as the disposal of the plaintiff exclusively. The plaintiff in this reply has alleged that she has been pushed out from that portion also. Therefore, it will be seen that even substantial disputes which were settled by the arbitrators between the parties have not been honoured by the defendant. In the back ground of these circumstances can it be said that even if it be held that all the future disputes were to be referred to the arbitration of the aforesaid two persons, the defendant will honour the decision given them. I am of the opinion that when such are the circumstances, it can be said that the only intention of the defendant for applying for stay of the suit is to compel his old mother to refer the disputes to the aforesaid arbitrators and then openly dishonour any decision which may be given by arbitrators. The conduct of the defendant, therefore, is not honouring the previous decision of the arbitrators persuades me to infer that the prayer of the defendant in this application is simply fraudulent because his past conduct shows that he does not honour any decision given by the arbitrators. Moreover, as alleged by the plaintiff in the reply, even one of the arbitrators threatened her with dire consequences if she dared to write to him for settlement of her disputes with her son. Therefore, the entire conspectus of the circumstances of this case does not justify the grant of stay of the present proceedings under Section 34 of the Indian Arbitration Act. I may also note that even the so called reference in future to any disputes that may arise is rather vague because the magnitude of any such differences is not clarified in this agreement. Therefore, I am of the view that defendant is not entitled to ask for stay of suit in this case.

(6) I may also note that before commencements of arguments efforts were made by the Court to bring about a settlement between the parties because they are mother and son. Moreover, the mother is quite aged. Statements had almost been agreed to be recorded. The only point of difference where the talks failed or the defendant refused to make a statement was that he wanted to say that plaintiff is only limited owner of the suit property during her life time. On the other hand, plaintiff and her counsel suggested that instead of the above language, the plaintiff may be admitted by the defendant to be a limited owner of the suit property as per the Will. The defendant refused to make that statement in spite of the fact that even in para9ofthe agreement dated 20.4.1987 arrived between the parties with the intervention of the arbitrators, it is recorded that the house property situated at A-1/154, Safdarjung Enclave, New Delhi shall be governed as per the terms of the Will executed by late Bawa Manak Singh Bhalla on 1st August, 1985. lnpara5(ii)of the Will it is clearly stated that if the plaintiff survived the testator she will be the owner of this house Along with certain other properties. A daughter of the testator Along with her husband and children stays in the front portion of the first floor of this house. She being very obedient and serviceable to the old man, he made her the owner of that portion of the house. But so far as the plaintiff is concerned, he seems to have bestowed upon her a life estate only because he clearly stated in para 7(i) that after his death and that of his wife, his son (defendant) and his two minor sons will become the joint owners of this house except the front portion in possession of the daughter. Therefore, knowing it full well that his mother, that is the plaintiff, is given only life estate in the house, he still refused to say that the plaintiff is the limited owner of the suit property as per the Will. Therefore, it is clear that the defendant has no intention even to accept those areas in respect of which the disputes have already been settled by the arbitrators. So can it ever be believed that he will even honour those settlements which may be made by the arbitrators in future. Therefore, I am of the opinion that the intention of the defendant in asking for a stay of the suit is simply fraudulent and there is no guarantee that he will respect the verdict of the arbitrators, in fact, in the meantime, it may be possible that he disposes off the suit property, as apprehended by his mother, and sow further thorns on the path of the plaintiff by creating many more interests.

(7) It is not the intention of Section 34 that as soon as an arbitration agreement is pleaded, the Court must stay its hands. In spite of the arbitration clause, it is still the discretion of the Court to stay or refuse to stay the proceedings. Where the Court gathers that reference to arbitration is sought merely to harass the adversary, and that too an old mother, without there being actual intention to honour the award of the arbitrators, the refusal to exercise discretion in such circumstances would be amply justified.

(8) In view of all the circumstances of this case, referred above, the Court is not inclined to stay the proceedings. The application is, accordingly, rejected.

(9) The defendant shall file written statement within three weeks and replication, if any, within three weeks thereafter. May be listed before Deputy Registrar on 31st October, 1990.