Dr. Hemant Kumar Rohatgi & Anr. vs South Delhi Maternity & Nursing ...
2012 Latest Caselaw 5540 Del

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : September 14, 2012

+                        FAO(OS) 444/2012

      DR. HEMANT KUMAR ROHATGI & ANR.                ....Appellants
                   Represented by: Mr.Manish Vashisht, Mr.Sameer
                   Vashisht, and Mr.Dhruv Rohatgi, Advocates.

                                  versus

      SOUTH DELHI MATERNITY & NURSING
      HOME PVT. LTD. & ORS.                           ...Respondents
                    Represented by: Mr.T.K.Ganju, Sr.Advocate
                    instructed by Mr.Aquib Ali and Mr.Aditya Ganju,
                    Advocates.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. Dr.Hemant Rohatgi and his wife Mrs.Swati Rohatgi are one group. Dr.Brij Mohan Rohatgi, now deceased and represented through his son Jaideep Rohatgi, (Mr.Jaideep Rohatgi in his own right), Mrs.Urvashi Rohatgi and Mrs.Sulabh Rohatgi are one group. They are family members and are also close relations of Justice (Retd.) Awadh Behari Rohatgi. The litigating parties constituted a partnership firm on February 27, 1976 which acquired perpetual leasehold rights in a commercial plot under DDA and later on converted the partnership into a company. The respective parties held the shares of the company as per a percentage noted in paragraph 3 of the impugned order.

2. The groups fell apart. Winding up of the company was sought. The matter was ultimately referred to the sole arbitration of Justice (Retd.) Awadh Behari Rohatgi who pronounced the award on December 08, 2001 as per which the appellants were held entitled to be paid a sum of `450/- per share held by them.

3. Learned counsel for the appellants concedes that since the appellants had agreed to transfer their shares in favour of the other group, the only issue which had to be decided by the Arbitrator was the value of the shares.

4. The company formed by the parties, not being a listed company, and the only asset being the land in question which was acquired from DDA and a building constructed thereon, it was obvious that the job of the Arbitrator was to simply value the asset and thereafter determine what would be the value of each share of the company.

5. Now, valuation of land and a building is always a difficult job in India, because we all know that land deals have a fair element of underhand transactions.

6. One good thumb rule would be to let the parties bring a bidder who would pay the best or give an option to the other party to take the share of the opposite party with respect to the price offered by the party concerned i.e. if 'A' says that the price of land is `2 lakhs, to which his partner 'B' does not agree, the best thing would be is to compel 'A' to buy the share of 'B' at `2 lakhs being the price of the joint land. Solomon's way of justice would be that if a cake has to be cut into two equal portions which have to be shared by the parties, to let one out of the two parties cut the cake with the option to the other to take the first piece. It is obvious that he who would cut the cake

cannot complain that the other person has taken the larger share for the reason he would cut the cake into two equal portions.

7. The impugned award notes that the price quoted by the appellants was offered by the learned Arbitrator to be the price at which the property could be sold provided the appellants brought a buyer and they did not do so.

8. While laying a challenge to the award the appellants have not been able to show to the learned Single Judge, nor to us, any error which warrants interference keeping in view the limited scope of judicial interference in awards.

9. It is not the case of the appellants that a wrong principle of valuation has been adopted. What is urged before us is that while determining the net value of the immovable asset, the learned Arbitrator has taken into account a house tax liability of around `16 lakhs, which was quashed. But the plea ignores the fact that this happened much after the award was pronounced. WP(C) No.1828/1994 challenging the assessment order dated February 02, 1994 was allowed on October 28, 2010, and thus it cannot be said that the learned Arbitrator has acted contrary to a known fact. That apart, it has to be kept in mind that the respondents had to pay over `33 lakhs to DDA as conversion charges, which were not treated as a liability on the asset.

10. Learned counsel for the appellants states that the value of the property has risen astronomically since the dispute was referred to arbitration and since when the award was published in the year 2001. But this is not a ground on which an award can be set aside.

11. We concur with the view taken by the learned Single Judge that objections filed to the award dated December 08, 2001 under Section 34 of the Arbitration & Conciliation Act 1996 have to be dismissed.

12. We dismiss the appeal in limine leaving the parties to bear their own costs.

CM No.16053/2012 Since the appeal stands disposed of, instant application seeking stay of the impugned order till disposal of the present appeal, stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 14, 2012 dk