Satish Chandra Goel vs Suresh Chand Goel And Ors.
1996 Latest Caselaw 43 Del

JUDGMENT

Devinder Gupta, J.

(1) By this application by Smt. Rani Goel, hereinafter referred to as "the applicant" seeks to have the order passed on 14th February, 1992 set aside.

(2) The facts in brief are that on 29th April, 1991, Shri Satish Chandra Goel, petitioner filed an application under Section 17 of the Arbitration Act, 1940 praying that award made on 24th September, 1990 by the sole Arbitrator Shri Yogesh Kumar Jain be made a rule of Court. It was alleged in the application that parties were the successors-in-interest of late Lala Ram Chander. After the death of Lala Ram Chander, there had been some disputes amongst the successors-in-interest with respect to inheritance of Joint Hindu Family Properties. Disputes as per the arbitration agreement dated 8th August, 1990 were referred to the sole arbitration of Shri Y.K. Jain, who was arrayed as respondent No. 6 in the application. It was stated that an award had been made on 24th September, 1990 by the Arbitrator, partitioning the properties left by late Lala Ram Chander. After making of the award Shri Kamal Chand Goel, the fourth son of Lala Rani Chander died on 27th November, 1990 leaving behind his widow Smt. Rani Goel and one son Rajiv Goel. According to Satish Chandra Goel, he had received the original award from the Arbitrator, which was being filed with the application with a prayer for making the same a rule of the Court.

(3) The application came up before the Registrar on 21th May, 1991 when notice was directed to be issued to the Arbitrator directing him to file the arbitration proceedings in Court, on or before 23rd September, 1991 the next date. On the date fixed, a statement was made by Shri Arun Aggarwal, Advocate, appearing for the Arbitrator that there no arbitration proceedings were with the Arbitrator. On the same date notice of the filing of award was directed to be issued to the parties. On behalf of Satish Chandra Goel, notice was accepted by Shri P.K. Jain, Advocate. Notice was thus directed to be issued to respondents 1 to 5 only including the applicant herein. On 28th January, 1992, Mr. Arun Aggarwal, Advocate, put in appearance on behalf of respondents 1 to 5, who made a statement that he had no objection to the award. The Deputy Registrar, directed the case to be posted in Court on 14th February, 1992. None appeared on 14.2.1992, therefore the Court proceeded to make an order that since there was no object ion to the award, the same is made a rule of the Court. In these circumstances, dec ree in terms of the award was drawn up.

(4) The instant application, purporting to be one under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure was moved by Smt. Rani Goel on 15th March, 1994, inter alia, alleging that after the death of her husband Kamal Chand Goel, she along with her only son Rajiv Goel had been in use and occupation of the part of the Joint Hindu Family properties. Her husband was a member of the Joint Hindu Family, namely. Ram Chander & Sons, who owned several movable and immovable properties. Satish Chandra being the elder brother other husband had been managing the properties. There was tikka ceremony in the family of her brother, as the daughter of her brother was going to be married on 20th February, 1994. In connection with that ceremony she left her house to her brother's house, after locking the portion in which she was residing, namely, House No. 2745 to 2748, Gali Arya Samaj, Bazar Sita Ram, Delhi. On 19th February, 1994, when she came back to her house for taking some articles, which were required by her for the purpose of attending the marriage, she found that the entry through the staircase for reaching to the portion occupied by her was being closed by raising a wall by Shri S.C. Goel and a security guard had been posted. The matter was reported to the police. It was during that period when intervention had been made by the police that she came to know that certain award had been made on 24th September, 1990 by one Shri Y.K. Jain, Advocate and of the fact that the award had been made rule of the court on 14th February, 1992. A counsel was contacted.who on inspection of the record, found that the award made and published by Shri Y.K.Jain, Advocate on 24th September, 1990 was filed in Court by Shri S.C. Goel in April 1991 without any authority and the filing of the award was also beyond period of limitation. No notice of filing of the award had been served upon her or on her son, who had been arrayed as parties. On 23rd September, 1991, Shri Arun Aggarwal, Advocate had appeared as an Advocate for the Arbitrator and on tin' next date Shri Arun Aggarwal Advocate made a statement purporting to be on behalf of the Respondents that he had no objection for making the award a rule of the Court. It is stated in the application that neither she was served with any no! ice of the Court, nor she had ever authorised Shri Arun Aggarwal to appear on her behalf. In the application filed under Order 9 Rule 13 Civil Procedure Code . the applicant has also raised objections that the award could not have been made a rule of the Court for number of grounds. Order dated 14th February, 1992issoughttobcsetasideprimaril\ on the ground that she had not been served with any notice of the filing of award and had not authorised Shri Arun Aggarwal to put in appearance on her behold This application was contested by the other parties, namely, the Petitioner and respondents 1, 2 and 5.

(5) It is stated on behalf of respondents 1, 2 and 5 that after notice of the filing of the award was served, a reply dated 31st January, 1992 was filed by Shri Arun Aggarwal, Advocate on behalf of respondents 1 to 5 including the applicant. The said reply along with affidavit of respondent Suresh Chand Goel and power of attorney (Vakalatnama), duly signed by all the respondents including the applicant were filed in Court on 31st January, 1992 vide Diary No. 3090 and it was on the basis of such authority that Shri Arun Aggarwal, Advocate appeared in Court before the Deputy Register on 28th January, 1992 and gave statement that he had no objection to the award and requested that the suit be posted before the Court for appropriate orders. Same is the case of Shri Suresh Chand Goel. The petitioner as well as other respondents have also questioned the bonafide of the applicant in making this application on number of other grounds, such as, award having been acted upon; husband of the applicant having taken advantage of the award and the fact that the applicant had knowledge of the making of the award by tile Arbitrator, filing of award in Court by the Petitioner and of the proceeding for making award a rule of Court.

(6) After the pleadings on the application were complete, learned Counsel for the petitioner Shri Satish Chandra Goel on 24th February, 1.995 produced a copy of the reply, purported to have been filed on behalf of respondents 1 to 5 in Court on 31.1.1992, to the application moved by the petitioner, for making the award rule of the Court. After the said copy was produced on record, the applicant was confronted with her purported signatures on the reply at five different places. She denied helving signed the said reply. In this background parties were heard on merits of the application for recalling the aforementioned order by which the award was made rule of the Court.

(7) Considerable arguments were addressed on behalf of the non-applicants, namely, petitioners, and respondents 1, 2 and 5. Their contention have been that in pursuance to the arbitration agreement a reference was made to the sole Arbitrator, who made the award which was a consent award. The award was accepted by all the parties, including the husband of the applicant. Unfortunately, it could not be made rule of the Court during the life home of the husband of the applicant. The award had also been acted upon and since it a the case of award having been accepted by the parties, there was no question of recalling the order by which award was made a rule of Court. Their further contention has been that though notice of filing of the award was not served 'on the applicant, she had know ledge of the same and had fully instructed a Counsel, signed Vakalatnama and the reply which were filed in the Registry, but these could not be put on record. In these circumstances, it was contended that there is no lawful justification in recalling the order. Reliance is also placed on a number of decisions in support of the first submission. Learned Counsel for the applicant vehement ally contended that it was a case in which applicant had not been served at all with the notice of filing of award and since there was no service and there was no material on record that she ever instructed a Counsel, the order was liable to be recalled and petition was liable to be decided in accordance with law.

(8) Having considered the averments made at the Bar and the point arising for determination in the application, I am not inclined to consider and adjudicate upon the submissions made on behalf of non-applicants that since the award has been accepted or acted upon the order making the award a rule of Court need not be recalled. All these questions can be urged and agitated during the course of proceedings for making of the award rule of the Court, in case the impugned order is recalled and not at this stage. The fact that award ha been acted upon is not a matter relevant for decision of the application made by the applicant for recalling the order. For recalling the order, the only relevant consideration would be whether the applicant was ever served with the notice of filing oft lie award and whether she had ever instructed the Counsel to put in appearance in Court, after receipt of the said notice. Even if she had not been served whether she had knowledge of making of the award and had instructed a Counsel to make a statement in Court.

(9) The first aspect of service of notice is an admitted tact that she was not served with notice of filing of award. The record also reveals that notice of the filing of the award was not served upon the applicant. The notice, which was purported to have been sent to the applicant as well as to her son, who has since expired, was neither served upon her nor on her son, nor it was affixed at the given address. The report on the notice says that she was not available on the given address. The fact thus remained that she was not served with the notice of the award. On the second aspect also that she had instructed a Counsel, it is not possible to accept the arguments made on behalf of the petitioner and respondents 1,2 and 5 that she had instructed a Counsel to make a statement. No effort has been madly by the petitioner and/or respondents 1, 2 and 5 to place on record an affidavit of Shri Arun Aggarwal, Advocate that he was instructed by the applicant to put an appearance in the proceedings for making the award a rule of Court. His power of attorney is also not on record. The applicant has also denied her signatures on ( i )py of reply,purported to have been filed on 31.1.1992 in Court. Moreover, it is highly improbable that Shri Arun Aggarwal, Advocate who had already put in appearance on 23rd September, 1991 on behalf of the Arbitrator would either accept a brief on behalf of respondents I to 5 or file his Vakalatnama in the same proceedings. In case Vakalatnama and the reply, copy of which has been filed by the Petitioner in these proceedings, were filed in the registry on 31.1.1992, it cannot be accepted that without any vakalatnama Shri Arun Aggarwal would make a statement on 28.1.1992 The copy of reply and affidavit in support thereof are not bearing any date. Copy of index attached thereto bear a date 29.1.1992. In these circumstances it has to be inferred that as on 28.1.1992 Shri Arun Aggarwal had no authority on behalf of the applicant. Consequently, it has to be held that the applicant never instructed Shri Arun Aggarwal, Advocate to put in appearance on her behalf. Since applicant had not been served with the notice of filing of the award, the order passed on 14th February, 1992 deserves to be recalled. Be it stated that in the application moved under Order 9 Rule 13 Civil Procedure Code . grounds have been taken by the applicant, which if accepted would be sufficient on which the award might not be made a rule of the Court. One of the factors which will require determination would be whether Shri S.C. Goel was ever authorised by the Arbitrator to file the award in Court, namely, whether filing of the award in Court is on proper authority. The second factor would be whether the application for making the award rule of the Court was made within period of limitation. Apart front the other grounds of challenge to the award on merits for which also the applicant has made grounds in this application.

(10) In view of the above, the application is allowed and the order passed on 14th February, 1992 is recalled.