Delhi High Court
Pradeep Kumar & Ors vs Bijendra Kumar & Ors on 9 July, 2009
Author: Mukul Mudgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 182/2007
% Decided on: 9th July, 2009
PRADEEP KUMAR & ORS ..... Appellant
Through: Mr. Javed Ahmad, Advocate
versus
BIJENDRA KUMAR & ORS ..... Respondent
Through: Mr. R.S. Kela, Advocate
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1. Whether the Reporters of the local newspapers be allowed to see the
Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported in the Digest? No
J U D G M E N T (ORAL)
MUKUL MUDGAL, J.
1. This appeal challenges the judgment dated 25th April, 2007 passed by
learned Single Judge by which the objections preferred by the respondent Under
Section 34 of the Arbitration and Conciliation Act, 1996 (for short the „Act‟)
were dismissed being beyond the period of limitation as per Section 34 of the
Act.
2. The genesis of the objections on merits preferred before the learned
Single Judge was that the agreement dated 3rd July, 2004 did not contain an
arbitration clause. In support of the appeal against the judgment of learned
Single Judge, the appellant filed the agreement dated 3rd July, 2004. However,
a perusal of the award shows that the award was passed on an agreement dated
6th October, 2004, copy of which was handed over to the Court by the learned
counsel for the appellant. Even before this Court the objections are only based
upon the agreement dated 3rd July, 2004. Significantly, the relevant agreement
dated 6th October, 2004 on the basis of which the learned Arbitrator gave the
award was not filed. All the grounds taken in the memo of appeal related to the
applicability of the agreement dated 3rd July, 2004. We have also seen
averments in ground „J‟ where it has been contended that the agreements dated
3rd July, 2004 and 6th October, 2004 produced by the respondent before the
Arbitrator were forged and fabricated as the signatures of the appellant were
missing on the relevant papers of the agreement. When the agreement dated 3rd
July, 2004 was pointed out to the counsel for the appellant, signatures of the
appellants at page 29 were admitted. However, he said that this agreement was
not relevant as this agreement did not contain the arbitration clause. In our view,
the appeal of the appellant is liable to be dismissed on the ground of making
wrong averments and in particular keeping back the relevant agreement dated
6th October, 2004. The said agreement forms the basis of the arbitration award
and appellant was duty bound to this Court to have filed the said agreement
instead of only filing the agreement of 3rd July, 2004.
3. On 17.02.2009 the following order was passed in the present case:-
"The Learned Single Judge has rightly drawn the
presumption of service keeping in view the original postal
receipts filed on record. However the counsel for the
respondent seeks to rebut the aforesaid presumptions. It is
open to the appellant to file evidence to rebut the
presumption of service drawn by the Learned Single
Judge.
We are of the view that for the continuance of the
Interim Order dated
14th August, 2007 the appellant be directed to deposit 50
per cent of the decretal amount in this court not later than
20.03.2009.
List on 26th March, 2009."
However, we need not go into this issue as we are inclined to dismiss the
appeal for suppression of vital facts and making incorrect/false averments.
4. Accordingly, we are satisfied that the appeal deserves to be dismissed
for suppression of vital facts and making incorrect/false averments in the
appeal. During the course of the hearing, agreement dated 6th October, 2004
and the objections filed against the award were handed over in the Court which
are taken on the record of this court. The appeal is dismissed accordingly. The
pending application also stands disposed of.
MUKUL MUDGAL, J
NEERAJ KISHAN KAUL, J
JULY 09, 2009
Mr/RS
