Delhi High Court
Hazrat Maulana Arshad Madani And ... vs Maulana Quari Mohammad Usman And ... on 22 January, 2010
Author: Rajiv Shakdher
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 14.01.2010
Judgment delivered on: 22.01.2010
IA No. 1123/2009 (under Section 5 r/w Section 8 of Arbitration & Conciliation Act, 1996 by
defendant.no.1) in CS(OS) No. 1970/2008
HAZRAT MAULANA ARSHAD MADANI & ORS ..... PLAINTIFFS
Vs
MAULANA QUARI MOHAMMAD USMAN & ORS ..... DEFENDANTS
Advocates who appeared in this case:
For the Plaintiffs : Mr Kailash Vasudev, Sr Advocate, Mr Harish Malhotra, Sr Advocate with Mr
Rakesh Kansal & Mr S Mehdi Imam.
For the Defendants: Mr Anoop G Chaudhary, Sr Advocate with Mr Sunil Malhotra, Mr Tayaib Khan
& Mr Abhishek Puri for defendant no.1.
Mr Siddharth Yadav, Advocate for defendant no.2.
Mohd Moonis Abbasi for counsel for Mr Saud Ahmed Syed for defendant nos 3
to 18.
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ? Yes
2. To be referred to Reporters or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
RAJIV SHAKDHER, J
1. This is an application filed by defendant no.1 under Section 5 read with Section
8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to in short as ‗the
Arbitration Act'). The only relief that the defendant no.1 has sought is as follows:-
" That this Hon‟ble Court may be pleased not to intervene in the
dispute and entertain the suit (C.S.(OS) No. 1970/2008) as it is
beyond the jurisdiction of this Hon‟ble Court....."
2. Briefly, the facts in so far as those, which are relevant for the purposes of
disposal of this application, are as follows:
CS(OS)1970-2008 Page 1 of 11
2.1 Plaintiff no.1 alongwith plaintiff nos 2 to 18 claim to be the president and the
members of the working committee of Jamiat Ulama-i-Hind (in short ‗JUH')
respectively. It is to be noted that it is not disputed that JUH is an unregistered society.
Plaintiff no.1 has averred broadly in the plaint that after the death of Maulana Sayed
Asad Madni R.A. in February, 2006, plaintiff no.1 was elected to the post of the
President of JUH.
2.2 The immediate predecessor of plaintiff no.1, i.e., Maulana Sayed Asad Madni
R.A. had continued as a president of JUH for a period of more than 32 years since
August 1973 till 06.02.2006. After initial posturing between plaintiff no.1 and
defendant no.2 in the contest for the post of President of JUH, defendant no.2 withdrew
from the contest. For this purpose, reliance is placed on the letter dated 16.04.2006
(Annexure P1). It is averred that plaintiff no. 1 in these circumstances was appointed
as a President of JUH for the remaining term which expired in December, 2006.
2.3 It is also averred that in so far as 2007-08 was concerned, pursuant to an
election process initiated in February, 2007 which was completed in July, 2007 after
giving due regard to the provisions of Section 51(a) of the JUH Constitution; plaintiff
no.1 was declared the President. In support of this submission, reliance is placed on the
letter dated 19.07.2007 evidently issued by defendant no.2 as well as a press release of
even date i.e., 19.07.2007 being Annexures P2 and P3.
2.4 It is the stand of plaintiff no.1 that at the relevant time defendant no.2 was the
General Secretary of JUH. It has also been averred that on taking over as the President,
plaintiff no.1, as mandated under the provisions of Section 46 of the JUH Constitution,
proceeded to nominate new members to the working committee of JUH. This, plaintiff
no.1 has averred, was achieved at the meeting held on 06.03.2008 whereby, 16 persons
were nominated to the working committee. It is further the stand of plaintiff no.1 that
since a new working committee was positioned on 06.03.2008 in consonance with the
provisions of Section 45 of the JUH Constitution the earlier working committee stood
CS(OS)1970-2008 Page 2 of 11
dissolved. This led to a dispute, according to the plaintiffs, as the members of the
erstwhile working committee did not approve of the actions of plaintiff no.1.
3. There is, at this juncture, a dispute as to the situation which actually obtained on
the ground. Let me, therefore, also refer to the stand of defendant No.1. Defendant
no.1 has taken a stand in his written statement that on 06.03.2008 a resolution was
passed by the working committee whereby, plaintiff no.1 who, according to defendant
no.1, was the ―Interim President‖ was removed and instead, defendant no.1 was
appointed as an Interim President in his place. (See paragraph 21 of the written
statement filed by defendant no.1) It is the stand of defendant no.1 that at the said
meeting of the working committee a decision was taken to convene a meeting of the
Central Managing Committee/General Body on 26.03.2008.
3.1 Being aggrieved, plaintiff no.1 through one of his supporters, who was a
member of the Central Managing Committee, instituted a suit in Lucknow. In response
thereto, defendant nos. 1 and 2 filed a writ petition before the Lucknow Bench of the
High Court of Allahabad. It is the stand of defendant no.1 that the said writ petition
came to be admitted on 20.03.2008, while the notice to the respondents in the writ
petition was made returnable in the second week of April, 2008. However, in the
interregnum, the High Court of Allahabad directed that the trial court shall defer the
suit till last week of April, 2008. It appears that the writ petitioners sought a
clarification from the High Court of Allahabad as to whether the meeting of the Central
Managing Committee/General Body could be convened on the date already fixed i.e.,
26.03.2008. It is averred that clarification as sought was granted albeit on 26.03.2008,
the date fixed for meeting. Since it was not possible to convene the meeting on the
same day i.e., 26.03.2008, the meeting of the Central Managing Committee was
postponed to 05.04.2008.
3.2 In the meanwhile, perhaps due to intercession of well meaning persons Maulana
Marghoobur Rahman, Rector of the Darul-Uloom-Deoband, who was also the member
of the JUH at the relevant point in time, offered to resolve the dispute between the two
warring groups.
3.3 It would be relevant to note at this stage that plaintiff No.1 had moved this court
on 20.03.2008 by way of a suit bearing no. 519/2008. Amongst various reliefs sought
one relief pertained to seeking declaration that the meeting dated 06.03.2008 conducted
by defendant no.1, whereby a motion of no confidence was allegedly moved against
plaintiff no.1, be declared void. The said suit, according to defendant no.1, came to be
listed on 24.03.2008 when, it was adjourned to 24.04.2008. It is the say of defendant
no.1 that the adjournment was accorded by the Court on an ‗oral‟ request made on
behalf of plaintiff no.1 that „arbitration proceedings‟ were in progress, and that he
would like to await the decision of the Arbitrator.
3.4 It is, however, important to note that defendant no.1 has clearly averred in
paragraph 29 of its written statement that the court in its order of 24.03.2008 has made
no such observation. This averment being relevant, I propose to extract it hereinbelow
for the sake of convenience:-
"29. That the plaintiffs had filed a suit in the Delhi High Court on
20.03.2008 which was listed for hearing on 24.03.2008. On
24.03.2008 the plaintiff no.1 sought adjournment on the oral plea,
through not recorded by the Court, that there was an arbitration
proceeding in the progress and he would like to wait for the decision
of the arbitrator. The case was adjourned to 24.04.2008."
3.5 Only to complete the narration of facts a second suit being CS(OS) No.
685/2008 came to be filed in the name of JUH through plaintiff no.1. The Court
initially granted an order in favour of the plaintiffs therein vide its order dated
11.04.2008. However, by an order dated 25.08.2008 the plaint was returned. In this
suit as well, amongst other reliefs, a declaration was sought that the meeting dated
06.03.2008, as also meeting dated 05.04.2008, conducted by defendant no. 1, whereby
allegedly a no confidence motion was brought against plaintiff no.2 (plaintiff no.1
herein) was void ab initio. This Court, however, by its order dated 25.08.2008 was
pleased to reject the plaint. The operative part of the order reads as follows:-
"28. In this case, the plaintiff‟s application, IA 6338/2008, under
Order 1 Rule 8 generally mentions about the District Committees
having authorized him to file the suit on behalf of Jamat. However,
the membership of those committees remains undisclosed; the
membership of the Jamat, whose interests are allegedly affected due
to the impugned resolution, has not been shown. According to the
suit, the Jamat has a membership base of one crore. These lacunae
are, in the opinion of this court, incurable.
For the above reasons, it is held that the suit is not maintainable. IA
6047/08 and IA 6348/2008 accordingly deserve to succeed and are
allowed. The plaint is accordingly rejected; the interim orders are
vacated. All pending applications are disposed of accordingly. In the
circumstances of this case, parties shall bear their costs."
4. It is in the background of the aforesaid broad facts that the present suit was
moved by plaintiff no.1 on 19.09.2008.
4.1 In the present suit as well, the plaintiffs have laid a challenge, amongst others,
to the proceedings of 06.03.2008 and 05.04.2008 conducted by defendant Nos.1 and 2
to which reference has been made hereinabove.
5. With this backdrop Shri Anoop G. Choudhary, the learned senior counsel for
defendant No.1/applicant has made the following submissions in support of the relief
sought in the captioned application:-
(i) there is an arbitration agreement obtaining between the defendants and
the plaintiffs. A reference in this regard was made to the averments
made by defendant No.1 in paragraph 29 of his written statement;
the relevant portion of which has been extracted hereinabove;
(ii) the failure on the part of the plaintiffs to specifically deal with the said
averments, that whether or not there is in existence an arbitration
agreement -- should necessarily lead to an admission that there is an
arbitration agreement in existence;
(iii) apart from the above, the contents of letter dated 24.03.2008, evidently
written by plaintiff No.1 to Maulana Marghoobur Rahman, the
Rector [which is appended as Annexure D-1 to the rejoinder filed on
behalf of plaintiffs to the application of defendant No.1 under Order
7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred
to as the ‗CPC')] would demonstrate existence of an arbitration
agreement. The submission being that in the English translation of
the said letter there is a reference to the fact that Maulana
Marghoobur Rahman, was engaged in an arbitration with the parties;
(iv) the letter dated 29.03.2008 (appended at page 104 of the documents filed
by the defendants) written by Maulana Marghoobur Rahman, to
defendant no.2 would show that an interim award had been made by
Maulana Marghoobur Rahman which was binding on the plaintiffs;
and,
(v) lastly, since letter dated 24.03.2008 was accompanied by a statement of
claim a vague denial of the averments made in the aforementioned
paragraph 29 of the written statement would necessarily lead to the
conclusion in terms of the provisions of Section 7(c) of the
Arbitration Act and Order 8 Rule 6 of CPC that an arbitration
agreement obtained between the parties.
6. As against this, Mr.Harish Malhotra along with Mr.Kailash Vasudev, Senior
Advocates made the following submissions:-
(i) in order to trigger the provisions of Section 8 of the Arbitration Act, the pre-
requisite contained therein have to be fulfilled:
(a) there ought to be an arbitration agreement in existence;
(b) the party seeking reference should file a copy of the agreement in original; and
(c) lastly, the party seeking reference is required to file an application under
Section 8 read with Section 5 of the Arbitration Act prior to the institution of the first
statement on the substance of the dispute.
In other words it was their submission that what had been agreed to between the
two warring groups was a conciliation under the aegis of Maulana Marghoobur
Rahman.
(ii) Furthermore, it was the contention of the learned senior counsels that defendant
No.1/applicant was required to move the captioned application in the first instance even
before defendant no. 1 had filed his first statement on the substance of the dispute, that
is, the written statement. It was contended that in the present case there cannot be a
dispute that written statement was filed by defendant No.1/applicant prior to moving
the instant application.
(iii) In so far as defendant No.1/applicant's reliance on the letter dated 24.03.2008
was concerned, of which much had been made out based on the translation filed by the
plaintiffs, they submitted that it was not accurate. It was their contention that original
letter was written in Urdu. In the original letter Maulana Marghoobur Rahman was
referred to as the ―Hakam‖. The literal meaning of which is a ‗Mediator'; and not
arbitrator as erroneously referred to in the translation filed by them. It was their
contention that defendant no. 1/applicant could not impose an arbitration where there
was none agreed to between the parties, based on an erroneous translation. The learned
counsels in order to buttress their submission referred to the letter dated 29.03.2008,
which the learned senior counsel for defendant no. 1/ applicant, had alluded to as an
interim award. My attention was drawn to the fact that the so called interim award
made a reference to conciliation proceedings and not arbitration.
7. I have heard the learned counsel for the parties. I am of the view that the
present application is not maintainable for the reasons given hereinbelow:
7.1 The fact of the matter is that somewhere in March, 2008, Maulana Marghoobur
Rahman, interceded in the disputes obtaining between the plaintiffs and the defendants.
This led to exchange of correspondence on the subject between Maulana Marghoobur
Rahman and plaintiff no. 1. One such letter, on which reliance is placed by defendant
no.1, is dated 24.03.2008. There is no dispute that the following lines in the translated
version of the letter dated 24.03.2008 filed by the plaintiffs find a mention:-
―But fact of the matter is that I am the first party who had welcomed
your effort to Arbitrate (Musalahat). Since you are honest, intelligent
and trustworthy, therefore I have complete faith in you. But I do not
trust this aforesaid committee constituted by you. Therefore, I once
again request you to assume the role of arbitrator (Hakam).‖
7.2 A perusal of the extract would show that in the translation filed by the plaintiffs
there is a reference to the word ‗arbitrate' and the expression ‗role of arbitrator'. It is
not disputed that the Urdu expression used is ‗Hakam'. The literal meaning of the word
‗Hakam' is ―an umpire, arbitrator, mediator‖ (See ―A Dictionary of Urdu Classical
Hindi and English by John T. Platts Edition 2000 A.D. at page 480). To shed light on
the matter vide order dated 07.01.2010, I directed that an official translation of letter
dated 24.03.2008 be carried out. The relevant extract from the official translation read
as follows:
―As a matter of fact, it was I who had welcomed your effort to
arrive at a compromise (Musalahat) because you are honest, intelligent
and trustworthy, therefore I have full trust on you as before but not in
the aforesaid committee. Therefore, I once again request you to assume
the role of a Mediator (Hakam). ―
7.3 A perusal of the letter would show that there is much to be said as to whether
parties were ad-idem as to the exact status and the role which was conferred on
Maulana Marghoobur Rahman. A perusal of the letter dated 24.03.2008 would show
that because of the sterling reputation of Maulana Marghoobur Rahman, plaintiff no. 1
wanted him to intercede in the matter and towards this end suggested that he should
take the assistance of, a retired Judge in whom both the parties have faith as also,
representatives of both parties. On the other hand, defendant No.1/applicant has taken
the stand that the plaintiffs had agreed to the appointment of Maulana Marghoobur
Rahman, as an arbitrator to adjudicate upon the disputes which had arisen between the
parties.
7.4 In my view, an arbitration agreement is no different from any other agreement.
For an agreement to be valid in the eyes of law the parties should have arrived at a
consensus on which they were ad-idem. If one party had in their mind an adjudicatory
process which was different than what the other party had in mind, then the parties had
not arrived at a consensus ad-idem. In my view the agreement, even if arrived at
between the parties, would fail on this short ground. A holistic reading of the letter
suggests that parties were not ad-idem as indicated above as to the methodology to be
followed for resolution of the disputes between them. There is no gainsaying that
Section 7 of the Arbitration Act provides for an arbitration agreement being culled out
based on correspondence exchanged between the parties; as all that the law requires is
the existence of an agreement in writing; it need not necessarily be signed. However,
as observed by me above in view of lack of consensus on what was agreed to between
parties - the provisions of Sections 8 and 5 of the Arbitration Act, cannot be invoked.
8. The other submissions with regard to the applicability of the provisions of
Sections 5 and 8 of the Arbitration Act need not really be commented upon by me.
8.1 Since, extensive submissions were made by the learned senior counsel,
Mr.Anoop G.Chaudhary with regard to the fact that the arbitration agreement must
necessarily be construed as having been in existence between the parties based on the
fact that an objection was taken in paragraph 29 of the written statement which was not
specifically denied in the replication filed by the plaintiff. According to me this
submission is not quite accurate for the following short reasons: A perusal of the plaint
would show that not in one place but at several places the plaintiff has repeatedly
alluded to the fact that they had agreed to a mediation. In this context see averments
made in paragraphs 9(xxv), 9(xxviii)(c), 9(xxviii) (e) and 9(xxviii)(h) of the plaint .
Prolixity in submission is not the mandate of the provisions of Order 8 Rule 6 of the
CPC. Pleadings should be able to demonstrate with clarity the stand of each party.
Lack of repetition cannot be construed as an admission. In these circumstances, to
suggest that the plaintiffs admitted that there was an arbitration agreement obtaining
between them is completely inaccurate. In paragraph 29 of the preliminary
submissions in the written statement of defendant No.1/applicant, reference is made to
the proceedings of the court held on 24.03.2008 in suit No.519/2008, when evidently
the matter was adjourned on an ‗oral' submission made by plaintiff No.1 that matter
should be stood over on account of pendency of the arbitration proceedings. The
plaintiff No.1 in his replication to the averments made in paragraph 29 has stated as
follows:-
―29. Contents of para 29 are matter of record. The plaintiff No.1
would, however, crave leave of this Hon'ble Court to rely upon the orders
passed by this Hon'ble court.‖
8.2 In my view, on reading the plaint and the replication together, it is quite clear, in
so far as, the plaintiffs are concerned that the role and the status conferred on Maulana
Marghoobur Rahman, was that of a mediator. Plaintiff No.1, therefore, in the
replication stated that the record of proceedings dated 24.03.2008 in suit No.519/2008
would be relied upon. As is evident from the stand taken in the written statement,
defendant No.1 also says that there was only an oral submission. It is well settled that
the record of the court is final unless corrected by an appropriate proceedings taken out
in the concerned court. No such proceedings were admittedly taken out. The
replication, in my view, not even by implication takes a contrary stand. This
submission is thus untenable, and is accordingly rejected.
9. It was next contended that the letter dated 29.03.2008 written by Maulana
Marghoobur Rahman, to defendant no.2 constitutes an interim award. The letter being
both short as also crucial, for the sake of convenience, I propose to extract the same:
―I received your letter. I am deeply pained to learn that these
unfortunate actions have been taken before pronouncement of decision
by the conciliator. As per your writing, I do not want to weaken one
party to the dispute. You are allowed to commence a meeting of the
Central Managing Committee of Jamiat Ulama-i-Hind but out side of
Masjid Abdun Nabi. I hope you will abide by my instructions.‖
9.1 A bare reading of the letter would show that it alludes to ‗conciliation' and not
‗arbitration'.
10. The submission of the plaintiffs/non-applicants that the captioned application
ought to be rejected solely on the ground that it was not moved prior to filing of the
written statement is in my view untenable. The reason being: Section 8 of the
Arbitration Act does not use the expression ‗written statement'; it refers to „first
statement on the substance of the dispute‟ of the case. In the instant case the objection
to the suit is admittedly taken in the form of a preliminary objection contained in the
written statement prior to the averments made in the very same written statement on the
substance of the dispute. Therefore, to say that the captioned application ought to be
rejected on this ground alone does not find favour with me. See observations in Aspire
Investments Private Ltd vs M/s Nexgen Edusolutions Priavte Ltd I.A. No. 5332/2009
dated 20.11.2009.
12. In view of the discussions above I am not inclined to entertain the application.
The application is accordingly dismissed.
RAJIV SHAKDHER, J
JANUARY 22, 2010
mb/da
