Sh. Madan Lamba vs Shri Jagdish Lamba And Ors.
2002 Latest Caselaw 1510 Del

JUDGMENT

J.D. Kapoor, J.

1. These are eight suits arising out of eight awards made by the learned Arbitrators Sh.D.V. Taneja, Ex. Chairman of Central Bank of India and Sh.D.M. Harish, a leading advocate of Bombay on taxation side in respect of various properties. These awards pertainto family disputes between four brothers namely S/Shri Madan Lamba, Jagdish Lamba, Harish Lamba, Kailash Lambaand their family members who were carrying on various businesses under different names and style.

2. The learned Arbitrators entered into reference by virtue of agreement dated January 1982 and made their awards on 25.10.1986.These are non-speaking awards. It is alleged by the respondents that the parties have already taken possession of their businesses and properties in accordance with the consent award dated 21.10.1983 passed during arbitration proceedings. It is further alleged that except objector Madan Lamba all the three brothers namely Jagdish Lamba, Harish Lamba and Kailash Lamba and their family members have accepted all the awards.

3. Petitioners here in are Madan Lamba and members of his family namely his wife Sneh Lamba and two sons Raman Lamba and Suman Lamba. They have challenged the awards on multifarious grounds including the awardin Suit No.3371/1991 which, according to them, has been made without there being any "written agreement" between the parties.

4. Main attack of Mr.K.K. Jain, learned counsel for the petitioners/objectors to the award in S.No. 3371/1991 is that the Arbitrators have misconducted themselves in as much as there was no agreement at all for deciding the disputes as to properties (i) Hotel Diplomat at 9/39, Sardar Patel Marg, Chanakyapuri, New Delhi and (ii) Volga House, Mahalaxmi, Clerk Road, Bombay but still the Arbitrators went into these disputes and gave the award; that the arbitrators have wrongly stated in the award that written agreements including these properties were executed in January, 1982 whereas the fact remains that there has been no agreement at all between the parties in respect of aforesaid properties much less the written agreement.

5. According to Mr.Jain unless and until there is a written agreement between the parties for submitting themselves to arbitration the award is a nullity and since in respect of properties viz. Hotel Diplomatat Sardar Patel Marg and Volga House at Bombay there was no written agreement between the parties, the award given by the Arbitrator is liable to be set aside on account of non-jurisdiction as according to Section 2(a) of the Arbitration and Conciliation Act, 1996, "arbitration agreement" means a written agreement to submit present or future differences to arbitration whether anarbitrator is named therein or not.

6. Mr. Jain has placed reliance on Union of India Vs. G.S. Atwal & Co.(Asansole) wherein it was held that the arbitrability of the controversy of the claim being a jurisdictional issue the Arbitrator cannot clo the himself with jurisdiction to conclusively decide whether or not he had power to decide his own jurisdiction. It was further observed that to constitute an arbitration agreement there must be an agreement, that is to say that the parties must be ad idem.

7. In order to appreciate the contention of Mr. Jain in the correct perspective and to get teeth more deeply into reality relevant extracts of the proceedings culminating in Consent Award dated 21.10.1983 duly signed by all the parties need to be reproduced. These areas under:-

"3.Hotel Diplomat New Delhi Mr. Madan Lamba will take over 12.5% share and Mr. Kailash Lamba will takeover 37.5% share out of the 25% share each of Mr. Harish Lamba & Mr. Jagdish Lamba on the basis of valuation of Rs.80 lakhs (Rs.Eighty lakhs only) for hundred percent share and pay the amount due to them within six months.

The immovable property, namely, the land & building of the Hotel will continue to belong to the present co-owners and they were continue to be paid a rental of Rs.10,000/- per month. The firm will be converted into a Ltd. company when the shareholders will have proportional representation in management & benefits. Major expenditure will be incurred in consultation with Mr. Madan Lamba and in case of difference matter will be referred to arbitration."

. Clinching para of these proceedings which is penultimate para is as under:-

8. Accounts All the accounts between the parties will be settled on the aforesaid basis and after taking into consideration the various credit and debit balances by 31st December 1983. The net amounts found due to or by the parties will carry interest at the rate of 12% p.a. The documents of assignment, sale, reconstitution or dissolution of firms will be handed over to the parties taking over the business only on their making full payment. Mr.Kailash Lamba will make available his accountant for the purpose of working up the accounts solong as his services are found necessary.

The cut off date will be taken as w.e.f. 22nd October, 1983 in all the concerns covered by this award.

All disputes arising at any time will be referred to the arbitrators whose decision will be final. However, Mr.D.M. Harish will decide issues where parties do not consider reference to Mr. Taneja necessary. Mr. Jagdish Lamba will be paid a sum of Rs. one lac each by Mr. Kailash Lamba in November and December 1983. He will alsobe paid a sum of Rs. 50,000/- each by Mr. Madan Lamba in November and December, 1983."

8. It is contended by Mr. Jain that since the aforesaid two properties were not referred to the Arbitrators, any agreement made between the parties for referring the disputes arising between the parties to the Arbitrators does not amount to an "agreement in writing" and as such the parties cannot be said to have been ad idem and the award rendered by the Arbitratoris, therefore, a nullity.

9. It is further pointed out by Mr. Jain that the aforesaid terms of the Consent Award do not come within the meaning of "written agreement" as the said awardhas till date not been sought to be made rule of the Court. . In support of the proposition that in the absence of written agreement any award rendered by the Arbitrator is a nullity Mr.Jain has relied upon Sheo dutt Vs. Pandit Vishnudatta and another AIR 1955 Nagpur 116 wherein the application of the applicant under Section 33 of the Arbitration for declaring that reference to arbitration made on 19.7.1945 was a nullity and the award given in pursuance thereto was also a nullity was rejected by the learned trial Judge.It was held that where the parties are not `ad idem' about the dispute to be decided by the Arbitrators, there is novalidarbitration agreement and if the agreement is uncertain as to the exactdispute referred to arbitration, the award is bad. The award on the basis of an invalid reference is a nullity and can be challenged in an appropriate proceeding.

10. While refuting the contention of Mr. Jain that the award in respect of the properties at Sardar Patel Marg and Volga House in Bombay is not a result of a written agreement, Mr.V.P. Singh, the learned senior counsel appearing for the respondents has contended that the parties were ad idem with regard to the reference regarding these properties as would be evident from the proceedings of 21.10.83 signed by all the four brothers and to say that any agreement between the parties effected during the arbitration proceedings does not fall within the definition of "agreement in writing" contemplated by Section 2(a) of the Act is wholly unacceptable. Mr.Singh also placed reliance upon letters dated 27.9.84 from Mrs. Sneh Lamba wife ofMr.Madan Lambato the Arbitrator wherein she has acknowledged the fact that the disputes with regard to Hotel Diplomat at Sardar Patel Margand Volga Restaurant at Bombay are pendingbeforethe Arbitrators.Similar letters were also written by Raman Lambaand Suman Lamba, both sons of Madan Lamba tothe Arbitrators.Mr.Singh has also referred to letter dated 28.12.84 written by their lawyer to the Arbitrators which is to the same effect.

. Relevant extracts of the letter sent by Sneh Lambawhich are more or less representative in nature are as under:-

" You willrecollect that the question of partnership into a private limited company was never either the subject matterof the disputes or the reference to arbitration, the terms of which are embodied in the Arbitration Agreement by all the partners of Hotel Diplomat in January, 1982.

The Arbitration Agreement was entered into in terms of Clause 15 of the Deed of Partnership of Hotel Diplomat dated 6.12.81. The said clause permits arbitration of differences and disputes only in so far as they relate to "any disputes, doubt or difference" regarding"the construction of these presents or the saidpartnership's property, rights, credits, effect or to any of the partnership account, business or transaction".

In fact, the conversion of the partnership into a private limited company is the very antithesis of a partnership and accordingly beyond the scope of reference to arbitration and I have nointention of entering into such arrangements with any of my partners or outsiders. I would therefore request that further proceedings in the arbitration concerning M/s.Hotel Diplomat be taken only within the framework of the partnership and not with reference to any other framework."

11. Mr.Singh contends that above-referred series of communications exchanged between the parties manifestly demonstrate that the parties were ad idem in respect of these properties besides other properties.

12. On the contrary, it is contended by Mr.Jain that the letters written by Sneh Lamba and her two sons were in theircapacity as partners in business and not as owners in the property as the ownership of the premises vested in the four brothers and notin the partners ofthe partnership firm and therefore any letter written by them to the Arbitrators does not make the owners ofthe premises as parties ad idem.

13. I am afraid the posture adopted by Mr.Jain is self-defeating. Award dated 21.10.1983 wasa proposed Consent Award between the parties. It manifestly demonstrates that the parties were not only ad itembut also agreed to settle their disputes with regard tothe aforesaid two properties by way of arbitration. Contention of Mr.Jain is difficult to ram down the throat. It was on the basis of this document that the parties had been participating in the arbitration proceedings byway of number of meetings at various places and, therefore, the award in question does not suffer from the vice of non-jurisdiction. There isnot aniota of substance whatsoever in the contention of Mr.Jain that the award in respect of the properties at Sardar Patel Marg and Volga House at Bombay is not a result of written agreement.

14. There is no gainsaying the fact thatthe arbitration agreement must be in writing. The written agreement shows that the parties are ad idem whereas oral agreement does not fulfill the requirement of Section 2(a).Unless and until the parties are at ad item by way of written agreement the Arbitrator cannot arrogate the jurisdiction and any such award made by an Arbitrator is void ab initio. The Arbitrator is an instrument of the agreement and its existence stems from the arbitration agreement which should necessarily be a written agreement. Such an award stands on the same pedestal as the decision of a court which has no jurisdiction to try and decide the suit as any decree passed by a court that lacks jurisdiction is a nullity.

15. The interpretation of the words "written agreement" in Section 2(a) of the Act goes to the extent that such an agreement may not necessarily be signed by the parties. It is the tenor and intent reflected in various communications and the meetings betweenthe parties that becomes the determining criteria to find out whether there is written agreement between the parties to settle their disputes by way of arbitration or not. Such an agreement can even be made by the parties either during the arbitration proceedingsor meetings between them before or after reference of their disputes tothe Arbitrators.If the parties agree for decidingthe disputes by way of arbitration and such observationsare made by the Arbitrators in their proceedings this has to come within the meaning and ambit of "written agreement" as contemplated by Section 2(a) of the Act.

16. Again unless the parties are ad idemthe agreement even if it is written agreement is not invokable or applicable by way of arbitration.Dictionary meaning of the word `ad idem' is "the same point inagreement". The agreement has to be with respect to the question to be decided and not a general agreement for any dispute. To say that the proceedings of the Arbitrator referred by the respondents do not reflect that the parties were ad idem so far as the properties at Sardar Patel Marg and Volga Houseat Bombay were concerned asit was a general observation of the Arbitrator that any disputes arising between the parties shall preferably be adjudicated by them is an ostrich like approach. Aforesaid paras of the proposed Consent Award speak for themselves. They have removed air of uncertainty as to the controversy whether the parties were ad idem or not or whether there wasany written agreement vis-a-vis properties viz. Hotel Diplomat at Sardar Patel Marg and Volga House, Bombay.

17. Further, to say that these observations were made only when the parties were settling their disputes by way of arbitration in respect of properties other than the said two properties is wholly wrong as by no stretch of imagination the parties can be called not ad idem sofar as the written agreement executed between them during the arbitration proceedings is concerned.

18. Needless to say that unless and until there is an assertion on the part of one party and the refutation on the part of the other party the matter cannot be held to be a subject matter of reference for arbitration. Merely because the document is titled as Award doesnot mean that it has lost its character of "written agreement" or consent terms. These very terms have been referred in all the awards and have been acted upon. Had it been so the question of reference of all disputes arising atany time to the Arbitrators would not have arisen. The very fact that the parties agreed for reference tothe Arbitrators all disputes arising at any time withthe stipulation that Mr.D.M.Harish will decide issues where parties do not consider reference to Mr.Taneja necessary showsthat these were nothing but consent terms though have been couched in the title `Award'. Had boththe parties taken theseterms as an Award not onlythe Arbitrators would have filed them in the Court butthe parties too would have taken steps for making the award rule of theCourt.Thus, as per these documents,all kindsof disputes arising at any time were to be referred to the Arbitrators and in these documents the aforesaid two properties namely Hotel Diplomat at Sardar Patel Marg and Volga House at Bombay formed part of the consent terms and disputesarising there from were referrable tothe Arbitrators.

19. Next the validity of the award has been challenged by Mr.Jain on the premise that the arbitrators are guilty of misconduct by not taking proceedings jointly and also without consulting each other as on 29.09.2002 only one ofthe arbitrators viz. Shri D.V.Tanejawas present and, therefore, the award has been passed without due process of law. On 23.12.1984also only Sh.D.M. Harish was present. This, according to Mr. Jain, shows that both the arbitrators heard the parties if any, independentlyand not jointly and the decision taken by them is nota joint decision and is, in fact, a misconduct.

20. This objection has no substance whatsoever as it was agreed between the parties in the deed of reference that the arbitrators shall have the power to proceed in a summary manner and will not be bound to refer or require filing of claims or reply in writing or maintain any notes of the meetings or receive or record any formal evidence including perusing such documents and papers as they think fit and including oral submission of the partiesand witnesses, if any, and without any technical or legal formalities.This is apparent from clause 9 of the Deed of Reference of January 1982. It reads thus:-

"9. The Arbitrators shall havethe power to proceed in a summarymannerand will not be bound to record or requirethe filing of claims or replies in writing or maintain any notes or meeting or receive or mark any formal evidence and are authorised to conduct the proceedings with all summary powers including perusing such documents and papers as they think fit and including oral submission of parties and witnesses, if any, and without any technical or legal formalities."

21. Further no such objection was taken before the Arbitrators or otherwise. It amounts to waiver of right to take objection. Recording ofminutes by two Arbitrators is of no consequence whatsoever particularly in reference to clause 9 and moreover effective hearings did not take place on those dates. Counsel has failed to point out any other minutes or dates when the Arbitrators heardthe parties individually. It is notobligatory upon the Arbitrators to record the minutes of the meetings if they have to proceed in summary manner. Almost a similar situation arose in RamnathMisra Vs. Ramranjan Mishra 1922 Calcutta 181 wherein there were five Arbitrators who were acting jointlyunder the resolution. On one day, one of the personsheard the arguments while the other heard arguments for short time. Therewas also no evidence to show that the Arbitrators had signed the award. It was held that if a party to an arbitration proceedings fails to take an objection to the absence of one out of several arbitrators, he willbe deemed to have waived his right to take objection to the wholeof the irregularity caused thereby and the award must be filed.

22. Thus the objection that the awards were not signed, pronounced and made by both the Arbitratorsat one time is not sustainable because it is clear from the record that the Arbitrators made a joint award after due deliberations and consultations. The award itself states " WeD.N. Harish and D.V. Taneja do make and publish the following awards ....". After the awards were returned by the Bombay High Courtvide order dated 11.9.1990; the awards were filed by both the Arbitrators Along with their letter dated 1.11.1991 in each casein this Court.The opening word in each letter is " .... in the above case we the co-arbitrators gave the award on 25.10.1986." In the context of above statement of the Arbitrators it was immaterial and of no consequence even if the Arbitrators had signed the awards on different dates and at different places.

23. Sustainability of the award stems from the jointdeliberations and decision. Such deliberations neednot be at one place and at joint sitting. Deliberationscan be through any mode of communication. However proceedings in the presence of the parties have to be held in the joint sitting as there is distinction between proceeding and deliberation.Merely because the arbitrators sign the award on different dates and even at different places does not mean that they did not deliberate jointly.The only requirement is that the award should be based upon thecommon decision. Signatures of Arbitrators without any reservation connote joint deliberations and decision.

24. In Mukundalal Pakrashi Vs. Prakash Chandra Palrashi andanother one of the arbitrators signed one day later, it was held that the decision of the arbitrators was arrived atafter the jointdeliberations and the award was preparedin accordance with the said decision the mere fact that one of them signed one day later cannot renderthe award illegal.

25. Another concomitant objection Mr.Jain has raised is that since no Umpire was appointed before entering into reference as required under the Arbitration Act, arbitration proceedings are bad in law.In support of this contention, Mr.Jain has placed reliance upon Ram Kishore Vs.Raj Narain Dubey and others AIR 1963 Allahabad wherein it was held that in the absence of appointment of umpire which is mandatory provision of Schedule I of the Arbitration Act, 1940 the award is rendered invalid.

26. I do not find any substance in this contention as in this regard clause 2 of the First Schedule of the Act is not mandatory. At the most it is an irregularity whichmay be curable but not inexcusable. Clause 2 provides as under:-

"If the reference is to an even number of arbitrators, the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments.:

27. If a party continues participating even before the Arbitrators anddoes not take objection as tothe absence of the Umpire it is presumed that the partyhas waived his right to take objection as to the whole of the awardbeing irregular because of the non-appointment of the Umpire.

28. In M/s.Chowdhary and Gulzar Singh vs. M/s.Frick IndiaLtd 1978(2) 2nd 753 (Delhi) it was held thatthe scheme of the ArbitrationAct is thatwheretwo arbitrators are appointed they are to appoint an Umpire but in case the arbitrators fail to appointan Umpire, powers are given to the Court to appoint an Umpire at the instance of the parties under Section 8(1)(c) of the Arbitration Act. The period of one month mentioned in clause 2 ofthe First Schedule is, therefore, of no consequence.Section 8 of the Actprovides thatthe parties may serve the arbitrators with a written notice in filling the vacancy of an Umpire and if thearbitrators fail to comply with the written notice, the parties have a rightto approach the court for supplying the vacancy of the Umpire. In these circumstances, clause 2 of the First Schedule of the Arbitration Act is not mandatory and, therefore, the failure of the arbitrators to appoint an Umpire in accordance with the clause 2 of the First Schedule of the Act does not invalidate thearbitration proceedings or the Award.

29. Admittedlyin respect of remaining awards written agreements were executed between the parties in January, 1982 forreferring the disputes tothe Arbitrators.

30. Sofar these awards are concerned,the contention of Mr.Jain in short is that objectors were not given reasonable hearing during thearbitration proceedings inspite of written request made by Suman Lamba to the Arbitrators vide letters dated 27.9.1984 tothe effect that they do not consider themselves to be bound by any arrangement as may have been entered into by Sh.Madan Lambawho is not a party to the dispute. Similar letters were also written by Sh.Rajeev Sawhney, Advocate of heirs of Smt.Vidyawati to the effect that no notice has been received by any of the heirs though they are partners in VolgaRestaurant. In the letter it was specifically mentioned that copies of all the proceedings that have taken place till date be furnished and next date fixed for hearing be intimated.

31. According to Mr.Jain without givingthe reasonable opportunity to the parties of being heardany award made by the Arbitrators is bad in law as it violates the principles of natural justice. The statement ofthe Arbitrators in the award that the parties have been heard is incorrectand wrong statement as the actual fact is that the parties were not heard and only the brothers who represented themselves as head of the families were heard whereas the award has been rendered effecting the rights of the members of each family including the objectors. It is contended with vehemence by Mr.Jain that the allegation that the objectors Sneh Lamba, Raman Lamba and Suman Lamba afterhaving taken advantage of the award dated 21.10.83 cannot raise any objection is not correct as in the award SumanLamba Mrs.Sneh Lamba and Raman Lamba were even ousted from the partnership of Hotel Diplomat whereas in the award it is mentioned that the shareholders will have proportional share in the Hotel Diplomat to be converted into a Private Limited Company and will have a share in the management and benefit of the Hotel Diplomat but this was not done.

32. Correct position as reflected by several documents and award is like this. On 21.10.1983 allthe four brothers agreed for division of the assets ofthe partnership business, partnership firms andthe properties. On that day in respect of Hotel Diplomat whichis a partnership firm it was decided that the same be converted into a private limited company and if this is done then Mr. Madan Lamba will have 12.5 per cent share. This was objected to by the partners, namely, Sneh Lamba, SumanLamba and Raman Lamba vide their letter dated 27.09.1984. The relevant excerpts are as under:

"The conversion of the partnership into a private limited company is the very antithesis ofthe partnership and accordingly beyond the scope of reference to arbitration and I have no intention or entering into such an agreement with any of my partners or outsiders. I would, therefore, request that further proceedings in the arbitration consisting M/s hotel Diplomatbe taken only within the frame-work of the partnership and not with referenceto any other frame-work. I should also like to make it clear that I do not consider myselfboundby any arrangement as may have been entered into by my husband in this connection who is neither a party of reference nor a partner of hotel Diplomat nor has been authorised by me to enter into any such arrangement."

33. To the same effect are letters written by Raman Lamba, Suman Lamba and the notice dated 28.12.1984 sent by theirAdvocate. Keeping in view the above objectionthe arbitrators proceeded with the matter as per the deed of reference that is to decide the disputes ofthe partnership firm of Hotel Diplomat and did not consider the arrangement regarding conversion of partnership firm into a private limited company.This is the only objection by Sneh Lamba and Suman Lamba. Otherwise they did not have any objection to the proceedings being conducted in terms of the reference and Mr. Madan Lamba's representing them before the learned arbitrators.

34. It is evident that the objectorswere fully awarethat the proceedings were being conducted bythe arbitrators and they were being represented by Shri Madan Lamba. Thatis the reason that after this letter no further letter was written by them till the award was made on 25.10.1986. Thus by no stretch of imagination itcan be presumed that the objectors did not know aboutthe arbitration proceedings nor that they did not participate nor that no notice was issued to them in regard tothe arbitration proceedings particularly after having taken advantage of each and every aspect of the award and making representation to the arbitrators that they would not be boundby the decision based upon the statements made by their representative Shri Madan Lamba.

35. Each brother was representing all members of his family and to say that they were working adverse tothe interests ofthe members of their family is far fetched allegation. Moreover all membersof the respective families were throughout aware of the continuance ofthe arbitration proceedings. It appears that the heads of family discussed the proceedings with the respective members who reacted to the role played by their heads of the familiesand this reaction is demonstrated inthe aforesaid letters dated 27.9.84 and letter dated 28.12.1984.

36. Three branches of the family have acceptedthe awards and it is only Madan Lamba and his family members who have filed the objections.

37. Admittedly members of the respective families of the four brothers signed the agreement to referthe disputes to arbitration wherever they were involved in a particular business.Four branches of families asked for and appointed the head of the family to representthe family interest before the Arbitrators which was duly done. Notices of all proceedings were given to allthe brothers andnumberof proceedings were signed bythe headsof the respective families. This position has been accepted by three brothers who have accepted the award. Significantly since all the members of the family of Madan Lambahave been acting upon the internalarrangement reflected in the consent terms with regard to the various businesses of the family after 1983, it is no more open to them to say that they were not heard and they werenot giventhe reasonable opportunity of being heard inthe arbitration proceedings.

38. As regardsthe Volga Frozen Food property at Bombay letters dated 27.10.1983 and 6.3.1984 written by Madan Lamba to the Arbitrators itself demonstrate the fact that the parties were also ad idem in respect of this property. Following relevant extracts of annexure R-1 and annexure R-2 need to be reproduced:

Annexure R-1

" This is in reference to the discussion on two points in respect of change over arrangements of M/s.Volga Frozen Food & Ice Cream Company, Bombay with effect from 22nd October,1983. We had discussed and agreedthat separate books of accounts have to be maintained and separate Bank Account in the name of the firm is to be opened with authority in favor of Mr.Harish Lamba and Mr.Rakesh Lamba for operation of accounts.

With regard to the situationwhich might arise in case of some suppliers for not crediton account of non-payment of old or running dues,this was agreed that the new party may make the payment on behalf of the old party and adjust in final payment."

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Annexure R-2

I was in receipt of your letter dated 20thFebruary, 1984, addressed to Mr.D.M.Harish,copy to me stating "kindly refer to the meeting held on 21.10.1983 at 13, CCI Chambers inconnection with the disputes between us as per the award Mr.Madan Lamba had to pay a sum of Rs.50,000/- (Rupees fifty thousand only )to me by 31.10.1983. I regretto inform that the amount hasstill not been paid.

Herewith, I am enclosing two drafts of Rs.25,000/- each, one from Mr.Raman Lamba, DraftNo.0308178/6 dated 3.3.1984 for Rs.25,000/- and theother from Mr.Suman Lamba,Draft No.0308179 dated 3.3.1984 fo Rs.25,000/- as partpayment towards the purchase ofyourinterest inVolga Restaurant, New Delhi."

39. As is apparent from the aforesaidletterthe family of Madan Lamba was a beneficiary of the arrangement entered intoby the respective families as reflected in the consent terms of 21.10.83. Madan Lamba and his family members got all the advantage of the consent terms as notice and subsequent letters suggest as to howthe parties should manage the accounts after newarrangement came into existence.The letter further shows that Madan Lambahad already opened separate books of accountsfor M/s Volga Restaurant New Delhi since 22.10.83. So much so MadanLamba also vide above referred letter suggested to Kailash Lamba to open separate books of accounts as well as separate bank account in favor of Hotel Diplomatfor operation of accounts.

40. Allthese facts lead to mostineluctable conclusion that Mr.Madan Lamba took charge of Volga Restaurant New Delhi business completely as underthe consent terms this restaurant was to be run by him. Similarly because Hotel Diplomat was tobe run by Mr.Kailash Lamba and his family, Madan Lamba suggested maintenance of separate accounts for Hotel Diplomat so that no liabilities are fastened after 22.10.83 on other families.

41. The final award by the Arbitrators was made much lateri.e. on 25.10.86 and till then they did not raise any objection and rather availed of the benefit and acted upon the terms of consent award and to rake up the issue at this stage is not only an after thought but a feeble and unscrupulous attempt to scuttle and stultify the award and dig out the hatchet that was burried long ago.

42. The very fact that the objectors did not come up with the plea of not being served with the notice prior or subsequently till the filing of the objections shows that this plea is desperate attempt to wipe out the award emanating from the consent terms of the parties effected on 21.10.1983.

43. Theprinciples of natural justice are not to be interpreted in the manner as the counsel forthe petitioner seeks to. Once the parties appoint their representatives and not only participate inthe proceedings but also act upon the terms agreed before the Arbitrators and particularly when the relationship of the head of the family so appointed is that of the husband and the father who is in a better position to look afternot only his but their interests also, the allegations of violation ofprinciples of natural justice inasmuch as that they were not given notices by the Arbitrators at the time of proceedings do not stick at all.

44. Next objection isa legal objection and is common to all awards. According to Mr.Jain, the award is compulsorily registrable asit creates a right inthe immovable property of more than rupees one hundred value and in theabsence of registration the award is inadmissible and cannot be made a rule of the court. In this regard, he referred to Section 17 of the Registration Act. Relevant provisions are as under:-

17. Documents of which registration is compulsory. (1)The following documents shall beregistered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:-

(a). instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign,limitor extinguish, whether in present or in future, any right, title or interest, whether vested or contigent, of the value of one hundred rupees and upwards, to or in immovable property.

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(2) Nothing in clauses (b) & (c) of sub-section (I) applies to-

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(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign,limit or extinguish any such right, title or interest; or

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45. Extracts of the award in respect of Hotel Diplomat andVolga House germanefor deciding this controversy need to be reproduced as other awards are also placed in similar moulds. These are:-

S.No.3371/1991 "1. S/Shri Jagdish Lamba, Madan Lamba, Harish Lamba and Kailash Lamba as holders of the lease hold rights of premises No.9/39,Sardar Patel Marg, (Kitchner Road), Chanakyapuri, New Delhi and owners of the super structure built thereon shall grant to M/s. Hotel Diplomat, a Partnership firm with Shri Kailash Lamba and Shri Sanjiv as the Continuing Partner a lease/tenancy as per draft hereto annexed as Annexure`A' and initialled by us for the purpose of identification.

2. S/Shri Jagdish Lamba, Madan Lamba and Harish Lamba andKailash Lambashall continue as owners of superstructure and leasehold rights of 9/39, S.P.Marg (3) Shri Madan Lamba Shri Jagdish Lamba and ShriHarish Lamba shall also execute a Power of Attorney in favor of Shri Kailash Lamba/Shri Sanjiv Lamba to effectuate the purposes of the lease as per the draft hereto annexed and marked Annexure `B' and initialledby us for the purpose of identification."

46. Mr.Jain contends that the arbitrators have by awarding that the owners of the super-structure building in the property at Sardar Patel Marg shall grant toM/s Hotel Diplomat, a partnership firm with Shri Kailash Lamba and Shri Sanjiv Lamba as the continuing partner a lease tenancy as per draft hereto annexed and Shri Madan Lamba, Jagdish Lamba and Harish Lamba shall also execute a power of attorney in favor of Kailash Lamba and Sanjiv Lamba to effectuate the purpose of the lease havecreated an interest in the immovable property.

47. Mr.Jain has tried to draw strength from Lachhman Dass Vs. Ram Lal and another wherein Supreme Court held that the real purpose of registration is to secure that every person dealing with the property, wheresuch document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected. Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of the section, its non-registration would be no bar to its being admitted in evidence.........

48. It is beyond the pale of controversy thatany document creating interest or right in immovable property has to be compulsorily registered. Otherwise it is neither admissible nor receivable in evidence. Every such document needs to be scanned and scrutinized minutely as sometimes the covenants or titles of the documentare misleading as on surface it may create an impression that it has created an interest or right in the propertybut its closer perusal may lead to the conclusion that in actuality the adjudicated rights do require execution of an independent document through which alone interest or rightshall be created that mayrequire compulsory registration.

49. Objection in this regard appears to be brewd with confusion. On the face of the award it is apparent that by no stretch of imagination the award createsany interest in the immovable property nor does it create any leasehold rights in the property in question. It only directs certain parties to create such leasehold rights in favor of the continuing partners and for that purpose states that rights be created by executing documents enclosed with the award and annexed by the arbitrators as Annexure `A'. It is only Annexure `A' that will create the lease hold rights in favor of the continuing partners and that document alone shall be compulsorily registrable. An apt instance of the like nature may be cited.

50. In Mrs.Tehmi P.Sidhwa and others Vs. Shib Banerjee & Sons Pvt. Ltd. an arbitration award relating to the partition of immovable property of the value exceeding Rs. 100/- directed some of the parties to execute certain documents as may be necessary for declaring shares and for transferringthe property. Supreme Court held that such an award itself does not create or declare any right, title or interest in the immovable property but it merely created a right to obtain another document which will, when executed, create such right, title or interest. Such award was held to be falling under Section 17(2)(v) and not under Section 17(1)(b) and, therefore, was not registrable.

51. Thebasic judgment relied upon by the Supreme Courtin the aforesaid case is of Privy Council rendered in Rajangam Ayyur Vs. Rajangam Ayyar AIR 1922 PC266 wherein the partiesagreed to divide their properties according to certain specified shares. The award was to the effect: " A partition deed Exhibit AY in terms hereof shallbe executed and registered in the office ofthe Sub-Registrarof the place as also at Tinnevelly as early as possible; that until then this shall be itself in force." The Privy Council observed "Exhibit AY is not a document by itself creating assigning, limiting or extinguisihing any right, title or interest in immovable property; it merely creates a right to obtain any other document which will when executed create a right inthe person claiming thereliefand onthat ground their Lordships held that Exhibit AYdid not require registration and accordingly was admissible in evidence.

52. This view was fortified in Sheonarain Lalvs. Rameshwari Devi,(CA 296/1960 decided by the Supreme Court on 6.12.1962 by the Bench of five Judges. Clause 5 of the document under determination was as follows:

"Shri SheoNarainLal and his heirs should execute as early as possible a registered document in respect of the shop let out on rent to Beli Sao Sukhdeo Prasad, in favor of Prabhu Chand for which Shri Prabhu Chandwill have to pay nothing as consideration. He will pay only cost of stamp etc."

. It was held that such an award merely provides that some right in the shop should be created inthe future by means of a document to be executed by Sheonarain Lal and hisheirs.That document when executed would certainly operate to create a right in favor of Prabbhu Chandin immovable properties and extinguish the right of Sheonarain Lal and his heirs in the same properties.The position would have been otherwise if the arbitratorhad directed by the award that the property would go to Prabhu Chand without any further document.

53. As regards the objection that the covenant that MadanLamba and Jagdish Lamba shall relinquish their property rights in favor of Harish Lamba has created the interest of property in favor of Harish Lamba, therefore, the documentwas necessarily registrable, this pleahas been taken care of in the subsequent portion of the award which is to the following effect.

"The lessee shall execute at the cost of Shri Harish Lamba such documents as may be necessary for conferring on Shri Harish Lamba the rights as an exclusive Lessee/tenant of the premises under the Shaikhali Trust. S/Shri Madan Lamba, Jagdish Lamba and Kailash Lamba will execute in favor of Shri Harish Lamba Deed of Relinquishment as per ......"

. As is apparent from the aforesaid covenantthe documents conferringthe rights as exclusive lesseewas aloneregistrable as the said document creates a right in the immovable property andnot the direction ofthe arbitrator that Madan Lamba and Jagdish Lamba shall relinquish their property right in favor of Harish Lamba.

54. At this stage I deem it appropriate particularly to avoid repetition to refer to the remaining awards as in the opinion of Mr.Jain, these awards also create right in the immovable property. Relevant extracts of the Awards are as follows:-

        "I.     Suit No.3367/1991  
 

  
      M/s.Volga Ice Cream, Poona
 
       Partners
     

 
       (i)    Smt.Swaran Lamba  
 

        (ii)   Shri Sanjiv Lamba    

 
       (iii)  Shri Raman Lamba   

  
       (iv)   Shei Suman Lamba   

  
       (v)    Smt.Kamlesh Lamba
    

 
      (i) & (iv) shall retire from business

as of 31.3.84, Smt.Kamlesh Lamba will take over the running business w.e.f. 1.4.1984.

       II.    Suit No.3368/1991
   

 
      M/s.Volga Restaurant, Bombay.
   

 
       Partners
     

 

(i). Smt.Sneh Lamba W/o Shri Madan Lamba

(ii). Shri Jagdish Lamba

(iii) Shri Harish Lamba

(iv). Smt.Kammi Lamba W/o Shri Kailash

Lamba.

The partnership firm shall be dissolved w.e.f. 31.3.1986.

    

 
       III.   Suit No.3369/1991  
 
 

       M/s.Hotel Diplomat
 
       Partners
     

 
       (i)    Shri Jagdish Lamba   

 
       (ii)   Shri Harish Lamba   

 
       (iii)  Shri Kailash Lamba   

 

(iv) Shri Sanjiv Lamba S/o Sh.Kailash

Lamba

(v) Smt.Sneh Lamba W/o Sh.Madan Lamba

(vi) Sh.Suman Lamba S/o Sh.Madan Lamba

(vii) Sh.Raman Lamba S/o Sh.Madan Lamba

(viii) Sh.Rakesh Lamba S/o Sh.Harish Lamba

S/Shri Jagdish Lamba, Harish Lamba, Raman Lamba, Suman Lamba, Smt.Sneh Lamba and Sh. Rakesh Lamba shall retire from the partnership firm of M/s.Hotel Diplomat as on the close of business on 31.3.85. Shri KailashLamba and Shri SanjivLamba will take over the running business w.e.f.1st April, 1985 and shall be responsible for all the liabilities of the firm and shall be entitled to all the assets, properties, book debt, permits, licenses and goodwill of the firm.

       IV.    Suit No.3370/1991
   

 
      M/s.Volga Frozen Food & Ice Cream
      Company
 
       Partners
     

 
       (i)    Shri Madan Lamba   

 
       (ii)   Shri Jagdish Lamba   

 
       (iii)  Shri Harish Lamba   

 
       (iv)   Shri Kailash Lamba
   

 

S/Shri Madan Lamba, Jagdish Lamba and Kailash Lamba shall retire from the partnership firm on the close of business as of 31.3.84. Shri Harish Lamba shall take over the business w.e.f. 1.4.84 and shall be responsiblefor all the liabilities of the firm and shall be entitled to allthe assets,properties, book debts, permits, licenses and goodwill of the business.

       V.    Suit No.3372/1991
   

 
      M/s.Volga Restaurant, New Delhi
 
       Partners
     

 
       (i)    Shri Madan Lamba   

 
       (ii)   Shri Jagdish Lamba   

 

(iii) Smt.Kammi Lamba w/o Sh.Kailash Lamba

(iv) Sh.Ashok Lamba

(v) Shri Vijay Lamba

(vi) Shri Raj Lamba

(vii) Shri Deepak Lamba

(viii) Beneficiaries of Smt.Ananti Devi Trust

The above partners except Shri Madan Lamba shall retire from the partnership firm on the close of the business as of 31.3.86. Shri Madan Lamba will take over the running business w.e.f. 1.4.86 and shall be responsible for all the liabilities of the firm and shall be entitled to allthe assets,properties, book debts, permits, license and goodwill of the business.

       VI.    Suit No.3373/1991
   

 
      M/s.Volga Catering Services
 
       Partners
     

 
       (i)    M/s.Harish Lamba (HUF)   

 
       (ii)   Shri Kailash Lamba   

 
       (iii)  Smt.Sneh Lamba W/o Madan Lamba   

 

(iv) Sh.Raman Lamba S/o of Madan Lamba

(v) Smt.Swaran Lamba Wo Jagdish Lamba

Except Smt.Swaran Lamba all other partners will retire from thepartnership firm on the close of business as of 31.3.84. Smt.Swaran Lamba will take over the business of thefirm w.e.f.1.4.84 and shall be responsible for all the liabilities ofthe firm and shall be entitled to allthe assets,properties, book debts, permits, license, goodwill of the business.

VII. Suit No.3374/1991

Plot No.97-102, Kirti Nagar Warehousing Scheme

Lessees of the plot are S/Shri Madan Lamba, JagdishLamba, Harish Lambaand KailashLamba. According tothe award S/Shri Madan Lamba, Jagdish Lamba and Harish Lamba has to relinquish their shares in the aforesaid plotin favor of Shri Kailash Lamba."

55. Theabove awards manifestly demonstrate that frivolity iswrit large on the face of theobjection. None of the awards has created such interest or right in the immovable property ascontemplated by Section 17(i)(b) of the Registration Act requiringcompulsory registration. It appears this challenge is by a loosing person in the hope that by stroke of fluke it may find favor at some forum or the other and result in the rejection of the award wholly.

56. Another objection Mr.Jain has tried to bludgaon with the puff of his argument is thatsince the Arbitrators have made the awards after nearly 57 months from entering the reference and at no stage they sought any extension of time either from the court or through mutual consent of the parties the award is rendered nullity. According to Mr.Jain, the Arbitrator becomes functus officio if the award is not made within the prescribed period unless either the parties with mutual consent extend the time for making theawardor permission is sought and granted by the court and any awardmade beyond the prescribed period is non-existent and nugatory.

57. In the instant case, the Arbitrators entered into reference in January 1982 and made the award on 25th October, 1986. Though respondents havefiledan application (I.A.1173/2001) under Section 28 of the Act seeking extension of time detailing the reasons and grounds for extension of time yetin reply to the objections the respondents not only took the pleaof waiver but also requested for extension of time in the following words:-

"It is stated that by the conduct of the partiesthey are deemed to have given their consent even though no formal extension of time was requested for or recorded. It isstated that even otherwise this Hon'ble Court has power and jurisdiction to extend the time under Section 28 of the Arbitration Act."

58. It is contended by Mr.Singh, learned counsel for the respondents that conduct of the partiesshows that they had given their consent though no formal extension of time was requested or recorded.

59. While canvassing the proposition that a party is not estoppedeven by its conduct from challengingthe awardon the ground that it was made beyond time,Mr. Jain has placed reliance upon State of Punjab vs. Hardyal wherein it was held that the parties are not stopped by their conduct from challenging the award on the ground that it was made beyond time merely because of theirhavingparticipated in the proceedings beforethe arbitrator after the expiry of the prescribed period.

60. In the aforesaid case the arbitrator gavethe awardagainst the respondent on April 28, 1961 but after the expiry of the prescribed period.It was admitted by the respondent that he participated in theproceedings even after the expiry of the statutory period. The issues raised before the Supreme Court were - whetherthe objections were premature; whether the arbitrator misconducted himself or the proceedings or; whetherthe awardwas against the natural justice and whetherthe award was made after inordinate delay.

61. In the words of the Supreme Court the policy of the law seems to be that the arbitrationproceedings should not be unduly prolonged and, therefore,the arbitrator has to give the award within the prescribed time or in its discretion Court may extend the time as the Courthas been given the power to extend the timefor giving the award. Obviously the discretion of the Court in this regard has to be exercised in a judicial manner, so much so this power can be exercised even bythe appellate Court. The appeal in the aforesaid case remained pending in the Supreme Court since 1970 andwas decided on April 10, 1985.

62. In the conspectus of aforesaid facts, itwas held that no useful purpose would be served in determining whether the time should be enlarged in the circumstances of the case. It was in the face of inordinate delay in deciding theappealand making of the award afterthe expiry of the prescribed period that the Supreme Court held that in view of the policy of the law thatthe arbitration proceedings should not be unduly prolonged and in view of the fact that the parties having agreed to participate in the proceedings before the arbitrator without a demur it will be a fit case for extension of time.

63. Similar view was taken in Union of India Vs.M/s.Associated Producers Company 1991 (3) Delhi Lawyer 191 wherein Mr.Hardy had entered on the reference on September 12, 1972 and made the award on February21, 1973.Admittedly no application was made under Section 28 of the Act seeking extension of time. So much so during arguments norequest was made even orally. It was held that though there is a discretion that the courtmay extend the time suo moto but it depends upon each case to find out whether discretion for extending the timesuo moto is exercised judiciously or not. Neither any formal application seeking extension of time need to be made nor is there any provision for making such a request either during the proceedings or during the arguments.

64. There is unvarying current of unanimity that the awardis not liable to be set aside merely because it has not been rendered within the prescribed period. Limit of time has been prescribed in order to avoid undue procrastination as is usually occasioned in the court proceedings because of multifarious reasons, chief being the over-crowded dockets, complex legal proceduresand seeking redressal against the adverse orders at every step.This itself is a time consuming process.

65. Object of the law of alternative dispute resolution is to decide the disputes as expeditiously as possible. That is why the arbitration proceedingsare neither subjected to nor governedby the rigors of procedural codes or law of evidence. But it does not mean that the award if made beyond the prescribed period has to be declared as null and void.Facts of every case have to be scanned and scrutinizedwith a view to exercise discretion in favor of making of the award so thatthe disputes do not remain in limbo for ever and aggrieved partyis not left in the lurch. Otherwise the whole object of alternative process of resolving conflicts would get frustrated.

66. Conduct of the parties in participating inthe proceedings without any objection or demur is definitely one of the factorspropelling the discretion to be exercised in favor of award.If an application either in writing or orally is made at any stage by any ofthe parties for condoning the delay, discretion should be exercised in the affirmative rather than in the negative. Even if no such application is made, the court inthe interests ofthe parties and justice and toupholdthe object of arbitration should exercise the discretionsuo motu. Section 28 confers wide and inherent powers to condone the delay. It provides as under:-

28. Power to court only to enlarge time for making award-(1) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from to time for making the award.

(2) Any provision in an arbitration agreement whereby the arbitrators, or umpire may, except with theconsent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect."

67. To exercise the discretion in judicious and fair manner, facts need to be surveyed. The instant arbitration proceedings commenced in August 1982 andthe award was made on 25.10.1086. Adjournments after adjournments were taken mainly by the Objectors onone ground or the other. The award was first filed inthe Bombay High Court in November 1986 itself. However, as a consequence of objections and counter objections as to the jurisdiction of the Court, the Bombay High Court ruled on 11.9.1986 that the award has to be returned for being presented before the appropriate Court at Delhi for making it arule of the Court. The awards were filed in this Courton 1.11.1990. Till date, awards are awaiting decisions ofthis court. The application for extending the time was made on 5.2.2001. The fact that parties to arbitration proceedings have acted upon thearrangement mutually made by them without any demur or objectionand such an arrangement continued for a long period is also an important factor for extending the time.

68. Having subjected the parties to the painful rigours of participating in the proceeding, waitingfor examining the awards for the purpose of making them rule of the Court for 15 long years it would be too late in the day to tell them to go back to the arbitrator or declare the awards as nullity. It wouldoccasion monstrous injustice particularly in view of the fact thatthe objecting party had participated in the proceedingsnot only till their conclusion but till adjudication and even thereafter at no stage had raised objection as tothe delayoccasioned in the proceedings.Moreover the blame of delaying the proceedings mainly lies at the door of the petitioners.

69. Even otherwise it is well acknowledged that the Courtcan exercise powers to extend time under Section 28 of the Arbitration Act suo moto or even on oral request of a party. This proposition is supported by the following judgments.

(i)F.A.C.T.Ltd. Vs. Industry Side (P) LTD. 1988 Vol.I KLT 845

(ii) M/s.G.S.D.Construction Vs. State of Bihar and others AIR 1999 SC 1576

(iii) Nagar Palika, Mirzapur Vs. The Mirzapur Elec.Supply Co. Ltd.

(iv) Stateof Punjab Vs. Hardyal

70. In M/s.M.K.Shah Engineers & Contractors Versus State of Madhya Pradesh 1999(1) RAJ 437(SC), Supreme Court referred to Halsbury's Laws of England (Fourth Edition) Volume 2, paras 652, 654, wherein clause requiring a certain act to be completed within a specific periodand if that act is not done either the claim or the ability to commence an arbitration is barred is known as `Atlantic Shipping' clauses. SupremeCourt has said thatthe consequences of the expiry of a contractual limitation period may be avoided in three circumstances: (i) if the court exercises its discretion statutorily conferred on it to extend the period to avoid undue hardship;(ii) if the arbitration clause confers a discretion on the arbitrator to extend the period and the exercises it; (iii) If the conduct of either party precludes his relying on the time bar against the claimant.

71. Thus it cannot be gainsaid that the Courthas the power to extend the time of making the award atany stageof the proceedings including the appellate stage. Such extension of time is made on sufficient cause being shownby the party. The conduct of a party on whose account the proceedings have been delayed is one ofthe relevant considerations. The participation of the party opposing the extension of time in thearbitration proceedings is another relevant factor. As a last resort avoidance ofundue hardship becomes the sole groundfor extending the time suo moto.

72. In the instant case, the reasons for extension of time in short are that the parties throughout participated in the arbitration proceedings withoutany demuror objections which shows their implied consent in extending the timefor making the award bythe Arbitrators.The letters mentioned in para 5 ofthe application show that the objectors had been seeking adjournments on number of occasions.This also resulted in delay of proceedings. From any angle we may hold up the matter, the extension of time is the crying need, may be firstly by exercising the discretionstatutorily conferred by Section 28 of the Act;secondly to avoid unduehardship to the parties and thirdly because conduct of the petitioners/objects precludes them from raising such an objection.

73. In my view therecan be no better case of exercising discretion for extension of time than this. In no way exercise ofsuch a discretion would verge on unjudiciousness. Though a formal application was made in February 2001 but in reply dated 28.3.1994 tothe objections the respondents had in para 6 requestedfor extension oftime. Keeping in view the conduct ofthe parties particularly the objectors before the arbitrators, it should be deemed that they have given their consent even though no formal extension of time was requested for or recorded.

74. There are few more objections which are common to all the awards. Firstly themisconduct ofthe Arbitrators is, according to Mr.Jain further demonstrated demonstrated from the following facts: (i) That on receipt of notices of the awards dated 25.10.1986the objectors filed an application under Section 14(2) of the Arbitration Act, 1940( in short the "Act") to file awards in this court and telegram was given to the Arbitrators to this effect on 15.11.1986. Letters of confirmation were received on 16.11.1986. On 17.11.1986, this court issued notice to them to file the award. However,the awards were not filed in this court but filed in Bombay High Courton 21.11.1986; (ii) That filing of the award in Bombay High Court was challenged on the ground thatthe awards should have been filed before this court and not at Bombay High Court. Matter was heard and Arbitrators were directed to file the same in this court;(iii) That taking advantage ofthe fact that the matter has been pending in Bombay High Court, the respondents made changes in the partnership deeds and other documents when awards were being made rule of the court. Not onlypartnership deedswere changed by the opposite party even beforethe award was signed on 25.10.1986, the partnership deeds were changed in 1985 itself as if respondents knew that awards were going to be made in their favor.

75. I do not find any substance or merit inthe allegations of misconduct on the part of Arbitrators as filing of the award in Bombay High Court in no way could suit to Kailash Lamba. Rather written requests were made on 31.10.1986 by Harish Lamba and his family for filing of the awards in the Bombay High Court and accordingly these awards were filed in Bombay High Court. The telegram received by Mr.Madan Lamba did not show if any application was filed by him in this court. There was no misconduct on the part of Arbitrators in filing of award in Bombay High Court particularly when they had received written requests from Mr.Harish Lamba and others in this regard. Before notice couldbe sent by this court tothe Arbitrators they had already filed awards in Bombay High Court.

76. Another objection which appearsto be an after-thoughtis that theArbitrators held private meetings and enjoyed the hospitality of Sh.Kailash Lamba, for instance Mr.D.V.Taneja met Sh.Kailash Lamba and took his help in constructing house at Delhi and have therefore madethemselves disqualified tobe appointed as Arbitrators.The allegations are palpably false ashis name was suggested by S/Sh.Madan Lamba, Jagdish Lamba and accepted by others. Sh.Kailash Lamba had only commented on the placement and lay out of furnitures in the plan prepared by the Architects ofSh.D.V.Tanejaand recommended a revised lay out. This is nothing but a friendly advice being given by the Arbitrator. Conduct of the objectors rather exuded the confidence they reposed in the integrity of the Arbitrators.

77. Concomitant with this objection is the objection in Suit No.3369/1991 that the factum of Kailash Lamba having constituted a firm with his son Sanjiv Lamba showed a collusion betweenhim and the Arbitrators, it is contended that Mr. D.M.Harish was disqualified to act as an arbitrator ashe had been working as a consultant/advisor of Kailash Lamba and Harish Lamba. Objection is not sustainable and is wholly groundless in view of the fact that this allegation has not only been denied in the respondents' reply but the name of Shri D.M.Harish for appointment as an arbitrator was proposed by Madan Lamba and was accepted byJagdish Lambaand others. During the proceedings no objection regarding bias was raised by the objectors. The fact that Shri D.M. Harish was known to the family i.e. all the four brothers and had their confidence and as such was appointed as the Arbitrator cannot be lost sight of. It rather showsthe unstinted acceptanceof Sh.D.M.Harish, as Arbitrator by the parties. Letter dated 9.12.1983 sent by Mr.D.M.Harish to three brothers i.e. Madan Lamba, Jagdish Lambaand Kailash Lamba with a copy to Mr. D.V. Taneja andMr. Harish Lambashows that they asked for the settlement amongst the brothers and also to implement a part ofthe settlement consented on 21.10.1983.

78. Similar letters for giving effect tothe settlement of 21.10.1983 were written by Madan Lamba to Mr. D.M. Harish, Arbitrator and his other brothers on 27.10.1983. Moreover on 6.3.1984 Madan Lamba himself wrote to the Arbitrator that he would have no objection if the arbitrator asked theparties to implementthe settlement though in the absence of the pronouncement of the award. It is nothing but an attempt to clutch a flimsy straw by a drowning person.

79. It is further contended that theArbitrators have erroneously and wrongfully proceeded to club together the reference of Suit No.3314/1991 with othersix references which have no connection except S.No.3371/91 and further there are separate arbitration agreements for each reference and there are different parties in each reference, the parties were not presentbeforethe Arbitrators and at no stage desired joint reference. In the opinion of Mr.Jain the effect of clubbing of allthe references together is that the amount which is required to be paid under one of the awards to a party is not being given. The said amount is tried to be adjusted against the amounts payable to another party and such a situation cannot be countenanced at all.

80. The objection holds water like a sieve. Arbitrators have given set offs and advantages to each branch keeping in view the businesses of the branches of the family. For example, as per award Shri Madan Lamba as the continuing partner shall pay on or before 31st December 1986 certain amounts to a retiring partner. These are nothing but adjustments made keeping in view the various factors in the family businesses. For instance Mr. Madan Lamba has to be given the Volga restaurant at Delhiand he shallpay to the retiring partnersthe amounts mentioned in para 2. Thus, the referencesare interlinked and have connection with each other. This is so as stated in para 4 of the award in Suit No. 3372/1991 itself. Para 4 reads as under:

"The partiesare required to make payment underthis award and the other seven awardsshall be entitled to set offs the amounts receivable by them or by the members of their respective families against the amount payable by them and make payment of only the net amount due to a party or to hisor her family members."

81. This does not amount toclubbing. As is apparent from the disputes and differences relating to the partnership firm businesses were sointractably inter-connected that those have to be taken togetherand such a procedure was never objected to by the objectors and others and rightly so as this objection is nothing but an after-thought and is of no material relevanceand substance. The references were with regard to the family affairs and businesses of the parties and, therefore, the question of clubbing does not arise. Initially there were sevenreferences but in the meeting held in October 1993 the parties conformed to the award with regard to all the disputes and differences.

82. Next objection isthat Shri Harish Lamba in anticipation of the award had sold/leased the machinery belonging toM/s Volga Frozen Food Bombay and Ice Cream company and this shows collusion of the Arbitrators with Harish Lamba and Kailash Lamba. Objection stands onthe sandyfoundation and is without any basis because asper the consent terms all the brothers took charge ofthe respective businesses which they had agreed in the consent terms. In this context Shri Madan Lamba- the objector took over M/s Volga restaurant since 1983 and has been running the same to the exclusion of all others as is bornefrom the above referred letters. Notonly that, afterthis had been done by the parties in 1983,the objectors continued to participate in thearbitration proceedings and didnot at any stage object tothe arrangement that was being enforced.

83. Allother objections filed in different suits arising fromdifferent awards were not pressed. Even otherwise, these are en face sans substance and frivolous.

84. Proverbal last straw is the nature of awards. Theseare non-speaking awards settling the disputes amongst members of the family who chose their confidantes in whose integrity and impartiality, they had unflinching faith.

85. Non-speaking award stands on different pedestal than the reasoned award.

86. Thescope of challenge of non-speaking award is very limited. In a reasoned award one can know as to the reasons for accepting or rejecting the claims and counter claims of the parties. In a non speaking award it is difficult togauge the mental process of the Arbitrator whichguided him to allow or reject a particular claim or counter claim. But it does not mean that non-speaking awardis immune from scrutiny or challenge. If the error or omission to consider a vital or material document or objection that hits at the very fount of theproceedings is pronounced and apparent on the face, the award is liable to be setaside or tobe remittedfor re-consideration. Similarlyif theArbitrator travels beyond the terms of the agreement he renders his award not only as a nullity but nugatory and tautologous.

87. However, where the parties agree thatthe Arbitrators shall have the powers to proceed in a summary manner and will not be bound to record or requirethe filing of claims or replies in writing or maintainany notesof meeting or receive or mark any formal evidence and are authorised to conduct the proceedings withall summary powers including perusing such documentsand papers as they think fit and including oral submissions of parties and witnesses, the scope of interference of such an award isalmostnon-existent. It is the vice of perversity or apparent error on the face of award which alone makes non-speaking award bad in law.

88. In this regard, I deem it needless to refer to catena of authorities supporting the above view and refer to the observations made by the Supreme Court in Arosan Enterprises Ltd. Vs. Union of India & Another to the effect that in the event of there being no reasons in the award, question of interference ofthe courtwould not arise at all and even in the event there are reasons, the interference would still be not available within the jurisdiction of the court unless of course thereexist total perversity in the award or judgment is based on wrong proposition of law.

90. Another relevant observation made by the Supreme Court in State of Rajasthan Vs. Puri Construction Co.Ltd. wherein decision of the Supreme Court in Sudarshan Trading Co. Vs. Govt. of Kerala was relied upon, is quote worthy and is as under:-

"Since the arbitrator is a judge by choice of the parties, and more often than not, a person with little or no legal background, the adjudication of disputes by an arbitration by wayof an award can be challenged only within the limited scope of several provisions of the Arbitration Act and the legislature in its wisdom has limited the scope and ambit of challenge to an award in the Arbitration Act. Over the decades, judicial decisions have indicated the parameters of such challenge consistent with the provisions of the Arbitration Act. By and large the courts have disfavored interference with arbitration award on account oferror of law and fact on the score of misappreciation and misreading of the materials on record and have shown definite inclination topreserve the award as far as possible.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

It is necessary, however, to put a note of caution that in the anxiety torender justiceto the party to arbitratin, the court should notreappraise the evidences intrinsically with a clost scrutiny for finding out that the conclusion drawn from some facts, by the arbitrator is, according to the understanding of the court, erroneous. Such exercise of power which can be exercised by an appellate court with power to reverse the findingof fact, is alien to the scope and ambit of challenge of an award under the Arbitration Act."

91. In Raipur Development Authority Vs. Chokhamal Contractors the Constitution Bench took

the view that unless the parties expresslyagree the arbitrator is not required to give any reasons in support of his award.

92. In the instant case, the parties by virtueof clause 9 had expressely agreed that the Arbitrators shall have the powers to proceed in a summary manner and will not be bound to record or require the filing of claims or replies in writing or maintain any notes or meetingor receive or mark any formal evidence and are authorised to conduct the proceedings with all summary powers including perusing such documents and papers as they think fit and including oral submissions of parties andwitnesses. They also agreed by virtue of clause 14 that the award passed by the arbitrator shall be binding on them, their executors, administrators, legal representatives and successors in interest and shall not be challenged on any ground except fraud or collusion or error apparent on the face of theaward.This clause itself precludes the objectors from challenging the award as they do not suffer from any factual or legal infirmity nor have the Arbitrators acted contrary to the agreement or bargain between the parties.They admit no interdiction either on any factual or any legal issue.

. As a consequence, objections prove damp squib and are dismissed. Awards are made rule of the court. All the suits are decreed in terms of the awards. Decree sheet be drawn up accordingly.