Manak Chand Jain vs Love Jain & Others
2009 Latest Caselaw 3330 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                OMP No.483/2009

%                                Date of decision:24.08.2009

                                                     ....Petitioner
MANAK CHAND JAIN

                       Through: Mr.R.K. Jain, Advocate.


                               Versus

LOVE JAIN & OTHERS                               ... Respondents
                       Through: None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                No

2.    To be referred to the reporter or not?         No

3.    Whether the judgment should be reported        No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. This petition under Section 34 of the Arbitration Act 1996 with

respect to arbitral award dated 04.05.2009 is for consideration for

admission.

2. The arbitrator has been impleaded as respondent No.3. The

arbitrator is not required to be so impleaded in these proceedings.

The name of respondent No.3 is struck off from array of parties.

3. One of the claims of the petitioner before the Arbitrator was

for possession of shop no. 1168/8, Kucha Mahajani, Chandni Chowk,

Delhi - 6. The Arbitrator has held the petitioner to be the owner of

the said shop and entitled to possession of the same. In fact, it is

stated "claim for possession of the shop is decided in favour of the

claimant". In spite of the said claim of the petitioner having been

allowed, objection are preferred with respect thereto also. It is

contended that the Arbitrator has, in the last line of the award,

stated "claim and counter claim are rejected. The parties are

directed to bear their own cost of the proceedings". It is thus

contended that in spite of having allowed the claim for possession in

the earlier paragraph, in the final paragraph of the award the claim

for possession has also be dismissed. In fact an application under

Section 33 of the Act is also stated to have been preferred before the

Arbitrator in this regard and which was disposed of by the Arbitrator

vide order dated 21.05.2009. The Arbitrator has clarified that the

last paragraph of the award is concerned with the claim no. 5 of the

claimant (petitioner) and counter-claim No.2 of the respondent no. 2

and counter-claim No.3 of the respondent no. 3 and has further

clarified that the last paragraph aforesaid relates to the said

claim/counter-claim only. Notwithstanding the aforesaid clarification

by the Arbitrator, the petitioner has still taken objection thereto. The

counsel for the petitioner has contended that in the absence of the

Arbitrator passing any direction against the respondents for delivery

of possession, the award is bad.

4. The language as described in the schedule to the CPC as to the

decrees of the court does not apply to the arbitral award. In my view,

the award is clear that the Arbitrator has allowed the claim for

possession. The remedy of the petitioner is by way of execution and

not by way of this petition.

5. The next objection is taken to the award qua mesne profits.

The petitioner had claimed mesne profits at the rate of Rs. 20,000/-

per month. The Arbitrator has awarded mesne profits @ Rs. 5000/-

per month. The Arbitrator while awarding mesne profits at the said

rate has considered the fact that in the area where the said shop is

situated, the system of pagri is prevalent and thus the rate of rent of

neighbouring shops is very less. The Arbitrator has also relied upon

the suggestion of the petitioner himself in the cross-examination of

the respondent, inter-alia, to the effect that the rate of rent of the

said shop was Rs. 5000/- per month. The Arbitrator has not found

any basis of the claim of the petitioner @ Rs. 20,000/- per month.

6. The argument of the counsel for the petitioner is that the

Arbitrator has not appreciated the evidence led by the petitioner.

This court in the exercise of jurisdiction under Section 34 is not to

appraise the evidence or to go into the question of insufficiency or

sufficiency of the evidence for the conclusion arrived at by the

Arbitrator. Even otherwise, nothing contrary to the substantial law

can be pointed out with respect to the said award.

7. The counsel for the petitioner has lastly contended that the

award dismissing the claim of the petitioner for rendition of account

is bad. Disputes and differences, inter-alia, had arisen out of a

partnership deed between the parties. It is the petitioner who had

issued the notice of dissolution of partnership. The Arbitrator has

held that the partnership stood dissolved with effect from

29.04.2006.

8. While the petitioner had claimed the relief of accounts and for

recovery of amount found due thereon, the respondents had made a

claim for recovery of Rs. 3,55,624.52 from the petitioner as amount

due as per the accounts of the partnership. The Arbitrator found that

the respondents were taking active part in the partnership business

and the petitioner being elder brother of respondents used to

withdraw the moneys from the account. The Arbitrator also found

that though the petitioner claimed his 50% share in the partnership

but nothing has been said by the petitioner in his examination in

chief on question of rendition of accounts and nothing could be

elicited by the petitioner from the cross-examination of the

respondents also. It was also found that account books had not been

filed by the parties.

9. The Arbitrator on the basis of total oral and documentary

evidence on record held that there was nothing to justify the entry in

the balance sheet of the firm produced by the respondents showing

the sum of Rs. 3,55,624.52 as due from the petitioner; that the

petitioner was having separate business and the business of the

partnership subject matter of the dispute was started by the

petitioner with his two younger brothers, probably with good

intention to settle them; in the absence of other evidence on the

record by the petitioner of his investment in the business, it could

not be said as to how much amount was due to the petitioner from

the respondent; there was no evidence about the stock of

partnership and no evidence with respect to the assets of

partnership, or the stock in hand. The Arbitrator has held that both

parties having not produced any evidence, it could not be decided as

to how much amount, if any, was due to the petitioner. Thus, the

claim of the petitioner as well as of the respondents in this regard

was rejected.

10. The counsel for the petitioner has firstly argued that the

Arbitrator ought to have first passed a decree/award for rendition of

accounts and appointed a Commissioner in this regard. This

contention of the counsel is not found acceptable. The Arbitrator is

not bound to follow the procedure as prescribed in the CPC. From a

reading of the award, it is clear that the Arbitrator gave ample

opportunities to the petitioner to establish by evidence as to the

amount, if any, due to him on dissolution of the partnership but the

petitioner failed to lead any evidence in this regard. Thus the

arbitrator dealt not only with the aspect of liability for rendering

accounts but also of accounts. The counsel for the petitioner also

does not contravene this. Neither in the petition nor in arguments

even, any instance whatsoever of evidence if any from which such

amount due could be determined has been citied. The counsel for

petitioner has urged that the Arbitrator has held that it was the

respondents who were carrying on business and keeping accounts;

since they have failed to produce accounts, adverse inference ought

to have been drawn and the version of the petitioner of the sum of

Rs. 25 lacs being due to him ought to have been accepted.

11. I have asked during the hearing from the counsel for the

petitioner whether the petitioner had taken any steps whatsoever of

proving stocks or transactions of the business by summoning the

income tax, sales tax record or any party with whom the firm may

have transacted the business, to show any amount was due to him.

The answer is in negative. In the absence of the same, it cannot be

said that the award is contrary to any substantial law or the public

policy, inter-alia on which ground alone the award can be set aside

under the Arbitration Act 1996.

12. The counsel for the petitioner has contended that it was a term

of the partnership deed that on dissolution, the accounts shall be

rendered. It is urged that the petitioner had also issued notice to the

respondents to produce the accounts. However, the said contention

also does not prevail with him. The only purpose of giving a notice is

that the petitioner could thereafter lead evidence aliunde to show

the amounts due to him. The petitioner having admittedly not led

such evidence cannot call upon this court to interfere in the award,

in any manner whatsoever.

13. No ground is found to issue the notice of the petition.

Dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) August 24th, 2009 rs