Sh. Mahesh Narain (Deceased) ... vs Sh. Subhash Chand Chadha & Anr.
2017 Latest Caselaw 2978 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.181/2007

%                                                       3rd July, 2017

SH. MAHESH NARAIN (DECEASED) THROUGH LRs
                                             .....Appellant
                  Through: Mr. Raman Kapur, Senior
                           Advocate with Mr. Aviral
                           Tiwari, Advocate and Mr.
                           Dhiraj Sachdeva, Advocate.
                          versus

SH. SUBHASH CHAND CHADHA & ANR.                        ..... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This First Appeal under Section 37 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as „the Act‟) is filed by

the appellant/objector Mr. Mahesh Narain against the impugned

judgment dated 23.12.2006 passed by the court below, whereby the

court below has dismissed the objections of the appellant and upheld

the „Award‟ of the Arbitrator dated 12.10.2003.

2. I note that the appellant expired during the pendency of

these proceedings and he has been substituted by his legal heirs, and

therefore reference of the appellant/objector in this judgment; wherever

the context so requires; will include reference to the legal heirs of the

appellant/objector.

3. Right at the outset, I would like to put on record that the

so called „Award‟ dated 12.10.2003 is not an award in the sense of

term as is legally understood. Actually, the Award dated 12.10.2003 is

said by the Arbitrator and the respondent no.1 to be a consent

agreement between the parties and just two words in the middle of the

same are additionally written to call it an Award with the signatures of

the Arbitrator. This Award will be referred to hereinafter as the first

Award. The so called consent agreement in the form of consent Award

is of just about six lines and rest of the page of the so called Award are

the subsequent facts which took place thereafter i.e from 12.10.2003 to

17.10.2003. Also, as stated below, the Arbitrator thereafter got an

„Award‟ typed on a stamp paper dated 24.12.2003 but dated the

„Award‟ as 12.10.2003. In fact the Arbitrator on 24.12.2003 suo moto,

in the absence of the parties to the „Award‟ got the same registered

before the Sub-Registrar. This formal Award is the second Award.

4. In order to understand what is being observed with respect

to the so called Award dated 12.10.2003, and as has been aforestated in

this judgment, let me reproduce the so called first Award dated

12.10.2003 in its scanned form, and which is as under:-

5. Why the so called first Award dated 12.10.2003 has been

scanned by this Court and not typed is because it was required to note

the peculiarity of the expression "Award Pronounced" being written by

hand of the Arbitrator somewhere in the middle of the page with his

signatures, as also the fact of matter as regards the crucial language in

the first five lines of this first Award with respect to the consent

agreement being entered into showing different writing/language of the

words "which he accepts" and which three words are in different hand

writing than the hand writing in which the five hand written lines

which are written on the document dated 12.10.2003. The first five

lines in hand in the first Award are followed by the signatures of the

appellant with the date of 12.10.2003. To further clarify, it is required

to be stated that the appellant Mr. Mahesh Narain had filed objections

to the Award by contending that the so called first five lines of the

consent agreement and the consent first Award was never an Award

and these five lines were only in the nature of a proposal, and that too

initiated by the Arbitrator and not by the appellant Mr. Mahesh Narain,

and after the proposal emanating from the Arbitrator in these five lines,

the language was manipulated by adding words "which he accepts", for

the same to become a so called consent agreement resulting in the

consent first Award. It is argued by the appellant that once only the

five lines are read which are in the hand writing of the appellant Mr.

Mahesh Narain and with his signatures thereafter dated 12.10.2003 at

point „X‟, it becomes clear that there is clear cut tampering because

words "which he accepts" are not in the hand writing of the appellant

Mr. Mahesh Narain but are of someone else and that the five lines

which were signed by the appellant on 12.10.2003 was only and

merely but a proposal, that too not of the appellant but only of the

Arbitrator, that a particular passage in the property of the appellant will

be sold by the appellant to the respondent no.1 herein, that is Mr.

Subhash Chand Chadha. This passage is shown in orange color in the

map annexed to the second Award which was passed subsequently by

the Arbitrator and which is said to be dated 12.10.2003. This formal

second Award is only a consent Award based on the consent agreement

dated 12.10.2003 which has been reproduced above and it is not a

typical Award of an Arbitrator which decides on merits the issues

between the contesting parties.

6. Let me at this stage reproduce the so called second Award

dated 12.10.2003 because this second Award said to be dated

12.10.2003 is actually on a stamp paper of a subsequent date

24.12.2003, and this second Award as stated above was got registered

before the Sub-Registrar by the Arbitrator himself on 24.12.2003. This

second Award alleged to be dated 12.10.2003 on the stamp paper of

24.12.2003 and registered before the Sub-Registrar on 24.12.2003 by

the Arbitrator, reads as under:-

" AWARD The dispute having arisen between Shri Mahesh Narain s/o Shri Seth Krishna Narain, R/o 2, Jamuna Road, Delhi and Mr. Subhash Chander Chaddha, s/o Shri Amar Nath Chaddha, R/o 2, Jamuna Road, Delhi, in regard to matter of sale Deed dated 29th March, 1994, regarding Property No.2, Jamuna Road, Delhi. Both the parties, with their free will and consent, referred the dispute for Sole Arbitration to me, vide their Arbitration Agreement, signed between the parties on 7th May, 2003 on stamped paper of Rs. One Hundred.

I, Raj Chopra s/o Late Shri Walaiti Ram Chopra, R/O 5/6, White House Apartment, 6, Jamuna Road, Delhi accepted the Arbitration reference. Both the parties submitted their written as well as verbal submission on various dates, fixed by me. The statements of both the parties are recorded and also heard by me. After going through all the submissions, I award the following orders and judgments, which according to reference dated 7th May, 2003, shall be binding on both the parties.

Mr. Mahesh Narain has a demand of Rs.10,000/- from Mr. Subhash Chaddha as this wall was rebuilt by Mr. Mahesh Narain, which collapsed during construction of the building. This wall is a demarcation between Plot No.2 and Plot No.3 and thus, no amount is payable by Mr. Chaddha for this rebuilt wall.

Re. Sewage Line Mr. Mahesh Narain has demanded a sum of Rs.10,000/- from Mr. Subhash Chaddha as he has connected the sewerage from his house to the sewerage, constructed by Mr. Mahesh Narain. As this is one plot and the sewerage was constructed by Mr. Mahesh Narain from his portion of Plot C to the main sewerage. As the sewerage was only connected which was a normal course of sewerage system. Thus, no amount of Rs.10,000/- is payable by Mr. Chaddha to Mr. Mahesh Narain.

Re. Electricity Bill There is a demand of Rs.20,000/- being the share of the Electricity Bill, out of the total bill of Rs.70,131.66, which Mr. Subhash Chaddha accepts to pay. Mr. Subhash Chaddha should pay this amount within seven days and payment receipt should be produced before me.

Re. Bounday Wall on a/c of divison of Plot No.2, Jamuna Road between the portion of Shehzada Bahadur and the portion of B Block Mr. Subhash Chaddha has demanded a sum of Rs.75,000/- from Mr. Mahesh Narain, who has constructed a wall between the portion of Shehzada Bahadur and the portion „B‟, purchased by Mr. Subhash Chaddha to effect the Division of the property. Mr. Narain said there were pillars to demarcate his area. The wall has been constructed to maintain privacy and to safeguard one‟s property. It is, therefore, awarded that no cost of the Boundary Wall constructed by Mr. Subhash Chaddha, is payable by Mr. Narain.

Re. Construction of Drive Way Mr. Subhash Chaddha has further demanded as sum of Rs.15,000/- for having spent to construct the Drive way, which was to be constructed by Mr. Narain, as this was a common area, and shown as common passage of 10 ft. from Main Road to the portion „C‟, „A‟ & „B‟. As the Drive way is always provided by the Vendor. Thus, this amount of Rs.15,000/- is payable by Mr. Mahesh Narain to Mr. Subhash Chaddha. The amount should be paid within one week and payment receipt should be produced before me.

Re. Meter Box on the Wall Mr. Mahesh Narain has an objection that a Meter Box is put up on the wall between Plot No.2 and Plot No.3 by Mr. Chaddha. On inspection, it is found that a Box is put up on the Wall, which has few boxes for Meters and also a wooden box is there and a Board is fixed on the wall. As it is a boundary wall between plot No.2 and Plot No.3, there should be nothing on it and everything should be removed immediately from the wall. Re. Putting a Garden Gate It is mentioned in the reference of Mr. Mahesh Narain that Mr. Chaddha has stopped him in putting a gate on his property (Garden). Mr. Mahesh Narain has the right to put up a gate on his garden. Without any hindrance from any of the vendees in this property.

Re.Dispute of 10 ft. unhindered passage from East Side The point of 10 ft. unhindered passage as mentioned in the Sale Agreement dated 29th March, 1966, executed by the Vendor, Mr. Mahesh Narain in favour of Mr. Subhash Chander, Vendee of portion „B" of the plot, is the point of dispute. The portion marked as green in the Map, attached to the Sale Deed, is earmarked as common unhindered passage of 10 ft. upto the portion „B‟ by the Vendor, which was earlier confirmed by Mr. Sushil Sahu, the owner of portion „A‟ in the Sale Agreement dated the 17th Aug., 1994. The dispute is continuing since the completion of house till date and many a times the dispute was referred to the Police, but all in vain. The owner of portion „B‟ was denied the passage of 10 ft. from the portion marked as Green from the portion of „A‟. On inspection of the premises, it was clearly found that there was only 4 ft. as clear passage and the balance 6 ft. was occupied by way of big stairs. Mr. Mahesh Narain, the Vendee, also accepted that a clear passage of 10 ft. is not provided to the vendee of portion „B‟, which was actually to be provided by Mr. Sushil Sahu, the confirming part on the Agreement to Sale dated 17th August, 1994, but Mr. Mahesh Narain, while executing the Sale Deed with Mr. Sushil Sahu, wherein the following lines were mentioned.

"That the Vendor also hereby undertakes that he shall give unhindered clear, pedestrian passage from his portion purchased to the portion marked as „B‟. There was no mention of the 10 ft. unhindered passage thus, Mr. Sushil Sahu left only 4 ft. pedestrian passage instead of 10 ft. unhindered passage."

I am convinced that the owner of the portion „B‟ has not been provided a 10 ft. unhindered passage by the Vendor, in collusion with the owner of portion „A‟.

I asked Mr. Mahesh Narain to have encroachment of 6 ft. removed by requesting Mr. Sushil Sahu in order to maintain the peace of the complex;

but I have been informed by Mr. Mahesh Narain that Mr. Sushil Sahu has refused to do anything and is not interested to remove the 6 ft. encroachment.

Mr. Sushil Sahu came to my office and showed an agreement dated 29 th October, 1994, signed by all the three residents of Block A, B & C. Later on, the contents of the Agreement were received from Mr. Mahesh Narain, duly signed by him, duly typed on a plain sheet, which was not the photo copy of the original Agreement.

Under the circumstances, the East side passage seems to be shady in many ways and I do not think it proper that any award be passed on this disputed portion, which may not result into clashes and disputes later on. Hence, I award that the common passage of East Side should remain as it is, i.e., in Status-quo position, for use of all the residents of Plots A, B & C., as is already being used. Mr. Subhash Chadha has given a letter that he is prepared to buy the West Side passage of the plot against payment from Mr. Mahesh Narain, which has been several times referred during the proceedings of the case. Mr. Mahesh Narain has now accepted to sell this additional passage to Mr. Subhash Chadha. I award that the said Drive way from the West Side be given to Mr. Subhash Chadha against a payment of Rs.7,00,000/- (Rs. Seven Lakh), which will be paid in full, within a period of three months of the Award, i.e., by 11.1.2004 (from the Award dated 12/10/2003). In case, Mr. Subhash Chaddha fails to make the payment of Rs.Seven Lakh on or before 11/1/2004, the deal will be treated as cancelled, without further negotiations.

This passage will be the exclusive property of Mr. Subhash Chaddha who will provide a door from the wall of demarcation for maintenance of sewerage and other service amenities of Mr. Mahesh Narain. On receipt of the full amount by 11.1.2004, Mr. Mahesh Narain will give complete possession of the Drive way area of about 74-1/2 ft. of length from the Main Road and about 8 to 10 ft. wide at place for which, a proper Sale Deed will be executed by Mr. Mahesh Narain, in favour of Mr. Subhash Chaddha. It is also awarded that Mr. Subhash Chaddha will deposit an initial amount of Rs.2,00,000/- (Rs. Two Lakh) before 21/10/2003 with the Arbitrator.

Pronounced in presence of both the parties, this 12th day of October, 2003.

Sd/-

(Raj Chopra) Arbitrator"

7. This Court further notes that the second Award dated

12.10.2003 contains a page no.5 which is admittedly of a subsequent

date than the date of the Award, i.e page no.5 of the second Award is

dated 17.10.2003 whereas this Award itself is dated 12.10.2003.

8. To understand the disputes which are required to be

decided, it would be necessary at this stage to refer to the plan which is

annexed with the second Award and this plan annexed to the second

Award is as scanned below:-

9. Since we have reproduced above the consent agreement

which is actually the consent first Award, as also the formal second

Award dated 12.10.2003 on the stamp paper dated 24.12.2003 (and

registered before the Sub-Registrar on 24.12.2003), and also the site

plan annexed to the second Award, it would now be possible to state

the facts for understanding and crystallizing the disputes and without

reproducing of which it would have been indeed difficult to understand

the aspects which are to be examined and decided in this appeal. To

understand the facts of the case, the plan annexed with the second

Award would be most relevant and only on the basis of that plan, the

facts can be understood which are now stated as under.

10. The appellant was the owner of a plot totaling to an area

of 783 sq. yards. This plot was property No.2, Jamuna Road, Civil

Lines, Delhi. With respect to this property, the appellant agreed to sell

two portions of the same to two different persons while retaining the

remaining plot for himself. First person who purchased one part of the

plot of the appellant was one Mr. Sushil Kumar Sahu (who is not a

party to the arbitration proceedings and these proceedings) and the

second person was respondent no.1 herein, namely Mr. Subhash Chand

Chadha. To both these persons an area of 219.6 sq. yds. was agreed to

be sold out of total plot of 783 sq. yds. Both these portions which were

sold fell at the back part of the plot of 783 sq. yds. In the plan annexed

to the second Award the portion which was sold to Mr. Sushil Kumar

Sahu is referred to as portion „A‟ whereas the portion which was sold

to the respondent no.1 is referred to as portion „B‟. Since portions „A‟

and „B‟ were at the back of the plot, therefore, access was required to

reach the portions marked „A‟ and „B‟, from the front side of the plot.

This was done and access was granted by carving out a 10 ft wide

passage which falls to the east of the plot and is to the extreme right of

the site plan when we see the site plan in the file. This 10 ft wide

passage only reaches and touches upon the portion „A‟ which was first

agreed to be sold (i.e there was an agreement to sell) and thereafter

sold (i.e a sale deed executed) to Mr. Sushil Kumar Sahu. With Mr.

Sushil Kumar Sahu, the agreement to sell entered into is dated

25.4.1994. Since the 10 ft wide passage from the front to the back

portion only gave access to plot A and still further passage was

required to reach the plot B hence in this agreement to sell with Mr.

Sushil Kumar Sahu it was mentioned that one portion of the plot „A‟

which was sold to Mr. Sushil Kumar Sahu, being a passage, would be

used as an unhindered and clear passage for reaching the plot/portion

marked as „B‟ and which plot B was agreed to be sold (agreement to

sell dated 17.8.1994) and thereafter sold (sale deed dated 29.3.1996) to

the respondent no.1 herein. The 10 ft wide passage on the extreme

right side of the plan which is for reaching the portion „A‟ from the

main road is marked in very light yellow color in the map annexed to

the second Award. Though, this yellow color is not very clearly

visible, the passage itself is clearly marked and hence i.e this 10 ft wide

visible passage is clearly visible and as is being shown on the extreme

right side of the plan. This 10 ft wide portion is marked in green color

and this passage in green color forms part of the plot „A‟ which was

sold to Mr. Sushil Kumar Sahu. Therefore, to reach the portion „B‟

one has to enter from 10 ft wide passage falling to the right side of the

plot and which passage then reaches the green color portion passage

forming part of plot „A‟, and then from this green color portion one

reaches the plot „B‟ of the respondent no.1. The two passages being

the10 ft wide passage on the right side of the plot and the green color

portion when taken together form an inverted „L‟ alphabet with the

smaller base of the inverted „L‟ being the green colored portion. As

already stated above the agreement to sell dated 25.4.1994 of the

appellant with Mr. Sushil Kumar Sahu, and which is prior in point of

time, got thereafter fructified by the sale deed dated 14.3.1995 and

which was with respect of portion A, and that the agreement to sell

which was entered into between the appellant and the respondent no.1

is dated 17.8.1994 with respect to portion „B‟ and the same was

fructified in terms of sale deed dated 29.3.1996.

11. Disputes and differences arose between the appellant and

the respondent no.1 on account of parking of the cars in the yellow

portion passage of 10 ft wide which commences from the entrance of

the plot and reaches the green color passage portion of the plot marked

as „A‟. There also had arisen disputes on account of certain

obstructions made by Mr. Sushil Kumar Sahu in the green color

portion in the plot marked as „A‟, and which was the access passage

for the respondent no.1 to reach its plot „B‟, however such disputes of

obstructions in the green color passage were not the subject matter of

the arbitration proceedings and the arbitration proceedings were only

between the appellant Mr. Mahesh Narain and the respondent no. 1 Mr.

Shubhash Chand Chadha. Mr. Shushil Kumar Sahu was not a party to

the arbitration proceedings. Respondent no.2 herein was appointed as

an Arbitrator and who has conducted certain informal proceedings

between the parties, meaning thereby that there were no formal

pleadings as are found in legal proceedings and also that there was no

evidence led in the arbitration proceedings.

12. At this stage I note that though there were various

objections raised under Section 34 of the Act by the appellant with

respect to the fact as to whether at all there was an arbitration

agreement or that the respondent no.2 was only a Mediator and not an

Arbitrator or that the Award is beyond the scope of the arbitration

agreement and the reference or that at all whether there were

arbitration proceedings conducted or only mediation proceedings

conducted, before this Court however, learned senior counsel for the

appellant has confined his argument to the issue that there was never a

consent agreement dated 12.10.2003 between the appellant and the

respondent no.1 for selling of the orange colored portion in the site

plan annexed to the second Award and which orange colored passage

falls to the Western side of the plot i.e left side of the site plan as seen

in the Court file. In sum and substance the sole argument urged on

behalf of the appellant is that gross fraud has been committed upon the

appellant inasmuch as there has never been a consent agreement

between the appellant and the respondent no.1 whereby the appellant

had allegedly agreed to sell the orange colored passage to the

respondent no.1 for a sum of Rs.7 lacs and as written in the so called

consent agreement-cum-first Award dated 12.10.2003. It is argued that

the very language of the first five lines of the first Award dated

12.10.2003 shows that there only existed a suo moto proposal by the

Arbitrator to the appellant to sell the orange colored passage to the

respondent no. 1 for Rs. 7 lacs and the Arbitrator observed that the

appellant would be accepting this proposal, and that the appellant is

wrongly alleged to have accepted the proposal on account of his

signatures existing along with the date of 12.10.2003. The appellant

argues that the fact of the matter is that at the end of the five lines

written there have illegally been caused two hand-written

interpolations with the most important interpolation and tampering

being of adding of the words "which he accepts" and which were never

there in the original five lines ending on the top of the page of the so

called consent agreement dated 12.10.2003. To buttress the argument,

learned senior counsel for the appellant argues that the illegality of the

Award and fraud upon the appellant is so ex facie clear when we see

the consent agreement-cum-Award dated 12.10.2003 because this is

inconceivable as to why suddenly two words of "Award Pronounced"

have been written in the middle of the page and which are completely

incongruous not only in the setting but also in the language of the five

lines which appeared just before these words "Award Pronounced". It

is then argued that how could at all in disputes of an existing „L‟

shaped passage could at all the appellant have agreed to sell a

completely different subject matter being the orange colored portion

and that too falling in the exactly opposite left side of the plan and

which was never in the remotest sense the subject matter of disputes of

parking and obstructions in the „L‟ passage. Learned senior counsel

for the appellant finally argued that the aforesaid most important

arguments with respect to complete illegality of the so called consent

agreement-cum-Awards dated 12.10.2003, and the fraud played upon

the appellant, and which were argued on behalf of the appellant before

the court below, have been completely blurred over by the court below

in the impugned judgment. It is argued by the appellant that the

impugned judgment dated 23.12.2006 is an apology with respect to

aforesaid issues involved which were to be decided including the case

of the blatant tampering and the fact of their not at all existing any

consent agreement-cum-Award dated 12.10.2003, as these issues have

not been discussed at all in the impugned judgment, and the relevant

portions of which read as under:-

"After giving my thoughtful consideration to the submissions of the counsel, I have come to the considered opinion that the petitioner has been failed to discharge his onus of proving the issues in his favour. The objections taken by him are sham and frivolous. In fact, on the basis of mere technicalities and minor irregularities he wants to back out from the admissions made by him despite of the fact that by way of arbitration agreement Ex.PW1/DX1 the matter was duly referred to the Arbitrator and the petitioner himself duly participated in the proceedings. By raising these objections he wants to avoid the implementation/action upon the award despite of the fact that he himself participated in the arbitration proceedings actively. The documents Ex.PW1/DX-17 duly bears the signature of the petitioner at point X in which the proposal of the payment of Rs.Seven Lakhs was made and the payment schedule was also formulated. The petitioner has not denied his signature upon the said document. Further the said document Ex.PW1/DX- 5, Ex.PW1/DX-6, Ex.PW1/DX-7, Ex.PW1/DX-9, Ex.PW1/DX-10, Ex.PW1/DX-11, Ex.PW1/DX-12 and Ex.PW1/DX-14 all bear the signature of the petitioner and even the petitioner has admitted his signature on these

documents during the cross examination. The objections and irregularities pointed out by the petitioner are of minor and trivial nature and they do not go to the route of the matter. It cannot be said that the award is opposed to the public policy and is required to be adjudged void. Hence the petitioner has been failed to discharge his onus and accordingly all these issues decided against him.

10. ISSUE NO.6:-

Whether respondent no.2 had acted without jurisdiction and contrary to provisions Section 28 and/or against the well settled Public Policy of India in the matter of the purported Arbitration proceedings and the alleged Award dated 12.10.2003? .....(OPP) The onus to prove this issue has been placed upon the petitioner who has claimed that

a) the Ld. Arbitrator has misconducted himself as well as the Arbitration proceedings.

b) he has failed to exercise jurisdiction vested in him by law.

c) he has exercised jurisdiction not vested in him in law.

d) he has acted illegally and with material irregularity in the exercise of jurisdiction was vested in him by law.

Therefore, the entire arbitration proceedings and the resultant award are vitiated by law, the same are contrary to the settled public policy of India as well as contrary to the provision of Section 28 of the Arbitration and Conciliation Act, 1996. The Award is liable to be set aside and quashed. On the other hand according to respondent, petitioner himself is guilty of misconduct and is incompetent to challenge the award made/published by respondent no.2 which was given by him consequent upon following the due procedure in terms of reference. There existed a legal binding subsisting arbitration agreement between the parties. The petitioner duly participated in the proceeding. He even raised his claim. During cross examination there is specific admission by him on Ex.PW1/DX-1 to Ex.PW1/DX-18 and as such all the documents referred to during the course of cross examination were admitted by the petitioner and thus there is no substance in the allegations made in the petition. The award is perfectly valid and as such the same is executable.

In (2003) 5 SCC page 708, it was held that, "The phrase "public policy of India" occurring in Section 4(2)(b) is not defined in the Act. The concept "public policy" is considered to be vague, susceptible to narrow or wider meaning depending upon the context in which it is used. Hence, it should be given meaning in the contest and also considering the purpose of the section and scheme of the Act.

An award can be set aside if it is contrary to:

    (a)       fundamental policy of Indian Law; or
    (b)       the interest of India; or
    (c)       justice of morality; or
    (d)       in addition, if it is patently illegal.

The award in question has been passed by Ld. Arbitrator consequent upon following the due procedure of law in terms of reference. There existed a legal binding subsisting arbitration agreement whereby the dispute was mutually referred to arbitration and the petitioner himself duly participated in the proceedings. He made specific admission on documents

Ex.PW1/DX1 to Ex.PW1/DX-18 and he duly admitted all the referred documents of defendant. Thus, there is no substance in the objections raised by the petitioner. The award in question was duly made after following the due procedure of law. It is neither against the public policy nor against the public interest. The petitioner has been failed to point out any material irregularity or gross illegality to vitiate the award. The award is perfect and valid and there is no force in the objection and accordingly the issue is also liable to be decided against the petitioner and same stands decided accordingly."

13. I completely agree with the arguments urged on behalf of

the appellant. Firstly it is noted that second and the formal Award

dated 12.10.2003 is beyond doubt not written on 12.10.2003 but was

written on 24.12.2003 because the back of the stamp paper of the

formal second Award dated 12.10.2003 bears the date 24.12.2003. No

doubt in this regard remains because the Award itself was suo moto got

registered by the Arbitrator in the absence of the appellant on

24.12.2003. Also, as rightly argued on behalf of the appellant, the

Award contains a page no.5 and which is dated 17.10.2003, thus once

again showing that formal second Award dated 12.10.2003 did not

exist on 12.10.2003. What is extremely important to note is that the

crucial first five lines of the so called consent agreement-cum-Award

dated 12.10.2003 written in hand were only in the nature of a proposal

by the Arbitrator and there did not exist even a proposal by the

appellant. In the opinion of this Court this proposal of selling of the

orange colored passage for Rs.7 lacs by the appellant to the respondent

no.1 is clearly a fraud upon the appellant on account of the clear cut

collusion between the respondent no.1 and the Arbitrator because not

only the language of the first five lines but the fact that the three words

"which he accepts" which are written at the end of the five lines are not

in the same handwriting which is of the first five lines of the so called

consent agreement-cum-first Award dated 12.10.2003. Also, this

Court finds it most unusual and grossly illegal as to how can the two

words "Award Pronounced" suddenly appear in the most incongruous

way at the bottom of the five lines of the so called consent agreement.

The words "Award Pronounced" by the Arbitrator and then signed by

him on 12.10.2003 along with signatures of the respondent no.1 on

12.10.2003 are so completely out of the place that this Court

completely refuses to accept that a consent agreement-cum-consent

first Award should be held to be existing. This Court holds that there

was never any consent agreement dated 12.10.2003 for the appellant to

sell orange colored portion in the site plan annexed to the second

Award to the respondent no.1 for a sum of Rs.7 lacs and as has been

held by the Arbitrator in his Award dated 12.10.2003, more so because

the only disputes before the Arbitrator was as regards the „L‟ shaped

passage. There is yet another reason for holding that there does not

exist any consent agreement between the appellant and the respondent

no.1 for selling the orange color passage by the appellant to the

respondent no.1 for a sum of Rs.7 lacs because in the so called

informal proceedings which have been recorded by the Arbitrator prior

to 12.10.2003 there is not even a whisper of any agreement being

entered into, much less for a sum of Rs.7 lacs for selling of the orange

colored passage by the appellant to the respondent no.1. It is therefore

as if suddenly and magically on 12.10.2003 that the Arbitrator gave a

proposal, the same was accepted by the appellant, resulting in the

selling of the orange colored portion for Rs.7 lacs to the respondent

no.1 and Award thereafter is accordingly pronounced. The illegality

and fraudulent nature of the Awards becomes clear from the

subsequent formal second Award allegedly dated 12.10.2003 but

which never existed on 12.10.2003 with the fact that the Arbitrator suo

moto got the Award firstly put on a stamp paper which is dated

24.12.2003 and thereafter suo moto got the Award registered before the

Sub-Registrar on 24.12.2003. Once there is no consent agreement

allegedly dated 12.10.2003 by the appellant to sell the orange colored

passage for a sum of Rs.7 lacs to the respondent no.1, there does not

arise any issue of passing of a consent Award on the basis of the same

in terms of the so called five lines which contain interpolation and

tampering of the three words "which he accepts" at the end of the five

lines of the so called consent agreement dated 12.10.2003.

14. Accordingly for all these reasons the appellant is entitled

to succeed. The impugned judgment dated 23.12.2006 is set aside.

The objections filed by the appellant under Section 34 of the Act are

allowed. The impugned first Award dated 12.10.2003 written in hand

as also the formal second impugned Award dated 12.10.2003 (and

which is actually dated 17.10.2003 and 24.12.2003) are accordingly set

aside. Parties are left to bear their own costs.

JULY 03, 2017                                  VALMIKI J. MEHTA, J
Ne/srb