Raman Kapoor vs O.P.Kapoor & Ors.
2011 Latest Caselaw 5136 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI




%                                               Date of decision : 19.10.2011



                           FAO(OS) No. 429/2011



RAMAN KAPOOR                             ...      ...       ...         APPELLANT


                        Through : Mr.Sandeep Sharma, Advocate.


                                   -VERSUS-


O.P.KAPOOR & ORS.
                                                                ... RESPONDENTS

                        Through : Mr.Harish Malhotra, Sr. Adv. with
                                  Mr.Rajinder Aggarwal, Advocate.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE RAJIV SHAKDHER

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?                             NO

2.      To be referred to Reporter or not?                              NO

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


_________________________________________________________________________________________
FAO(OS) No.429 of 2011                                                       Page 1 of 7
 SANJAY KISHAN KAUL, J. (ORAL)

1. The family dispute relating to Kapoor family was referred to

the arbitration of Justice P.K.Bahri (Retired). The interim

award was passed on 01.06.2005 and the final award was

passed on 23.04.2009. Sh.O.P.Kapoor, the father, along with

his sons sought to assail the interim award relating to the

claims filed by the appellant. The final award was also

assailed by them. The appellant before us filed OMP

No.400/2009 seeking modification of the final award dated

23.04.2009 to a limited extent.

2. Another two OMPs were filed by the appellant seeking

interim measures consequent to passing of the interim and

final award.

3. All the aforesaid matters were taken up for hearing and as

per the submissions made on behalf of the appellant, OMP

No.400/2009 was not pressed qua the modification of the

final award and was accordingly dismissed vide the order

dated 08.06.2011. This order also deals with the other

OMPs. The order dated 08.06.2011 partially set aside the

interim award dated 01.06.2005 and since the final award

dated 23.04.2009 was founded on the interim award, the _________________________________________________________________________________________

same was also set aside insofar as it depended on the

findings of the interim award. This portion pertains to one of

the firms Kapoor Sons & Company.

4. The appellant has assailed the aforesaid order in FAO(OS)

Nos.373-374/2011. The said appeal was being adjourned on

account of settlement discussions, but the settlement

discussions were reported to have failed and thus the

matter has been set down for final hearing on 13.03.2012 by

an order passed today.

5. The appellant had filed an application under Section 151 r/w

Sections 152 and 153 and Order 47 Rule 1 of Code of Civil

Procedure, 1908 seeking correction of a typographical error

in the judgment dated 08.06.2011 while disposing of the

OMP No.400/2009. The appellant pleaded that the court had

wrongly recorded that the appellant did not press its

objection petition to the final award dated 23.04.2009. The

findings of the learned single Judge on this plea are as

under:

"This application is patently false. When the matter was heard, all the petitions were heard together and disposed of by a common judgment. The present application has been moved only as an afterthought. In fact, it was the argument of Mr. Sapra, learned senior counsel who appeared on behalf of the _________________________________________________________________________________________

petitioner, that though the petitioner has filed the aforesaid petition challenging the valuation, the petitioner is not pressing the same and is accepting the valuation as made by the learned Arbitrator.

It is unfortunate that this application has been moved by the petitioner, by making absolutely false averments. Pertinently, on the last date, counsel for the applicant on record Mr. Sanjay Bansal had not appeared and Mr. L.K. Garg had appeared and sought to make submissions. I may note that Mr.L.K. Garg had never before appeared in the aforesaid matter during the course of hearing. I put it to Mr.Garg that despite him having absolutely no personal knowledge of the matter, he was still making submissions without any basis. The matter was adjourned for today to enable, the counsel, who had appeared at the time when the matter was argued, to appear. Mr. Sanjay Bansal appears to day. Mr. Anil Sapra, learned senior counsel, is not present today as he is stated to be down with viral fever. I may note that Mr. Bansal does not display any conviction while appearing before me, and even today he is silent. Mr. Aggarwal is the one seeking to argue the matter.

The application is, accordingly, dismissed."

6. It is the aforesaid order dated 21.07.2011, which has been

assailed in the present appeal.

7. We have heard learned counsel for the parties. The

impugned order dated 21.07.2011 leaves us in no manner of

doubt that the appellant is trying to act clever by half and

moved the application, which was dismissed vide the

impugned order, only as an afterthought having seen the

_________________________________________________________________________________________

final verdict in the other OMPs in terms whereof the awards

have been partially interfered with. The learned single Judge

has noted that the senior counsel appearing for the

appellant had filed the OMP challenging the valuation, the

same was not pressed as the appellant was accepting the

valuation made by the learned Arbitrator. The learned single

Judge, who dealt with the matter, found that false

averments have been made and as to how different

counsels appeared on different dates not having personal

knowledge of what had transpired, has been noticed in the

impugned order.

8. We cautioned learned counsel for the appellant at the

inception itself that the application filed by the appellant

appear to us to be a complete abuse of process of court

which is aggravated by assailing the order in the present

appeal. Learned counsel for the appellant, however,

persisted in arguing the appeal and making his submissions

seeking to re-agitate the issue and contending that the

learned single Judge has misunderstood the stand of the

appellant.

_________________________________________________________________________________________

9. In our considered view, there is no question of

misunderstanding. The learned single Judge is quite

categorical in his finding in the impugned order as to what

had transpired.

10. We must note with regret what the appellant is doing. The

tendency of the parties to play ducks and drakes with court

proceedings has been increasing in the recent past. The

parties take chances and then seek to backtrack depending

on the fate of certain proceedings. Such a conduct can

hardly be encouraged by the courts.

10. We must note another aspect in the matter that while the

settlement discussions were on, the appellant rang up the

senior counsel for the respondents personally and

threatened him on the phone. Learned counsel for the

respondents states that he had brought this to the notice of

the learned counsel for the appellant, who had assured that

the appellant would not, in future, try to communicate with

learned senior counsel for the respondents. The factum of

such communication and the advice given by the counsel for

the appellant is not disputed by him. This only shows that

the present appeal is not a stray incident where the

_________________________________________________________________________________________

appellant has tried to plead falsehood and his conduct, even

otherwise, raises many question marks.

11. We are, thus, of the considered view that not only should the

appeal be dismissed as meritless, but the appellant must be

burdened with exemplary costs to send a signal that such

kind of litigation is not encouraged by the courts.

12. We, thus, dismiss the appeal with costs of ` 1,00,000/-.

SANJAY KISHAN KAUL, J.

 OCTOBER 19, 2011                                        RAJIV SHAKDHER, J.
 dm

_________________________________________________________________________________________