Sukhdeep Singh & Anr. vs Ved Prakash Chauhan
2019 Latest Caselaw 1068 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      O.M.P. 432/2015

                                Date of Decision : 18th February, 2019

       SUKHDEEP SINGH & ANR.               ..... Petitioners
                    Through: Mr.Rakesh Tiku, Sr. Adv. with
                    Ms.Gayatri Misra, Mr.Lokesh Bhardwaj,
                    Advs.

                          versus

       VED PRAKASH CHAUHAN                ..... Respondent
                    Through: Md. Azharuddin, Adv.


       CORAM:
       HON'BLE MR. JUSTICE NAVIN CHAWLA
       NAVIN CHAWLA, J. (Oral)

1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 21.02.2015 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the Partnership Deed dated 01.06.1989 executed between the petitioner no.2 and the respondent.

2. The bone of contention between the parties is in relation to possession of shop situated at property bearing No.2360A,

OMP No.432/2015 Page 1 Main Patel Nagar, Shadi-Khampur, New Delhi-110008 (hereinafter referred to as the 'shop').

3. The respondent had earlier filed a suit against petitioner no.2, being Suit No.134/2007. In the said suit, the petitioner no.2 filed an application under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (CPC) read with Section 5 of the Act seeking dismissal of the suit in view of the presence of an Arbitration Agreement between the parties in the Partnership Deed. It is important to note that the said application was filed by petitioner no.1 as a Power of Attorney holder of petitioner no.2.

4. The suit filed by the respondent was dismissed by the Court of Additional District Judge, Delhi vide order dated 17.07.2008 on the ground of there being an Arbitration Agreement in existence between the parties.

5. The respondent, thereafter invoked the Arbitration Agreement between the parties vide notice dated 12.11.2008. The petitioners in their reply dated 28.11.2008, however, now denied the existence of the Arbitration Agreement between the parties and challenged the veracity of the Partnership Deed. Petitioner No.2 also claimed that the shop was in possession of petitioner no.1 in his independent right.

6. Faced with this reply, the respondent filed yet another suit, being CS No.212/2009, before the Court of District

OMP No.432/2015 Page 2 Judge(West), Delhi, claiming recovery of possession of shop and damages/mesne profits. In this suit both the petitioners herein were impleaded as defendants.

7. The petitioners filed an application before the Court seeking dismissal of the above suit on the ground of it being barred by principle of res judicata in view of the earlier dismissal of the suit vide order dated 17.07.2008. This application was allowed by the Court of the Additional District Judge, Delhi by order dated 30.09.2009 thereby dismissing the suit.

8. The respondent challenged the above order by way of an appeal before this Court, being RFA No.110/2010. This Court by an order dated 23.07.2010 passed the following order:

"Counsel for parties agree that an arbitrator may be appointed to adjudicate upon the disputes and differences, and claim and counter claims of the parties, subject to liberty to the parties to raise all objections which may be available to them in accordance with law.

It is also agreed that a retired Additional District Judge, may be appointed as a Sole Arbitrator. Accordingly, Justice J.P. Singh, a former Judge of this Court [Cell No.9810053190] is appointed as the sole Arbitrator, to adjudicate upon the disputes and differences, and claim and counter claims of the parties. Parties shall be at liberty to raise all objections, which may be available to them in accordance with law. Counsel for the respondent submits that the fee of the learned Arbitrator be paid by the petitioner. The fee of the Arbitrator is fixed at Rs.l.00

OMP No.432/2015 Page 3 lac, which shall be shared between the parties, at the first instance, subject to final order which may be passed by the Arbitrator. In view of the stand taken, the judgment and decree is set aside. Parties shall be bound by the statement made by their respective counsel in court today. Accordingly, the appeal stands disposed of. Trial court record be sent back forthwith."

9. In view of the above, the arbitration proceedings commenced before the Arbitrator.

10. On the pleadings of the parties, the following issues were framed by the Arbitrator:

"1. Whether there is /was any valid partnership deed executed between the parties? If yes, its effect? OPC

2. Whether the claimant is the owner of the suit shop?

OPC

3. Whether the claim of the petitioner/claimant is within the period of limitation? OPC

4. Whether the claimant is entitled for the recovery of possession and damages as claimed in the claim petition? OPC

5. Whether the claim of the claimant is liable to be dismissed being premature as for want of cause of action? OPR

6. Whether the claim petition is liable to be dismissed as the claimant has not approached this forum with clean hands? OPR

OMP No.432/2015 Page 4

7. Whether the respondent No.2 is the owner of the subject matter by virtue of adverse possession? OPR-2

8. Whether the claimant has already waived off his right, if any? OPC

9. Whether the claim petition is hit by the principle of estoppel? OPR

10. Whether the respondent is entitled for recovery of Rs.8,00,000/- as per balance sheet along with interest at the rate of 24% per annum from the claimant, as put forth in the counter claim? OPR"

11. The Arbitrator by the Impugned Award has passed the following directions:

"90. As a result of the decision on the above questions, the respondents are directed to hand over vacant and peaceful possession of the shop measuring 9' x 25' forming part of property no.2360 and/or 2360A, Main Patel Road, West Patel Nagar, New Delhi 110 008 as shown in red in the attached site plan to the claimant within three months from the date of pronouncement of the award. The respondents will jointly and severally pay Rs.1,44,000/- (Rupees one lac and forty four thousand only) with interest at the rate of 18% per annum from the date of filing of the claim petition i.e. from 25.9.2010 within two weeks failing which the damages for use and occupation will be payable at the rate of Rs.16,000/- (Rupees sixteen thousand) per month with effect from the date of the pronouncement of the award till handing over of the vacant possession of the shop. The respondents will also jointly and severally pay the cost of proceedings i.e. the arbitration fee and expenses paid by the claimant.

OMP No.432/2015 Page 5 The respondents will jointly and severely also pay Advocates fee which is quantified at Rs.55,000/-."

12. Learned senior counsel for the petitioner submits that there was no Arbitration Agreement between petitioner no.1 and the respondent and therefore, the arbitration proceedings were not maintainable. He submits that the Partnership Deed was executed only between petitioner no. 2 and the respondent. Even this Partnership Deed has been found by the Arbitrator to be only a paper transaction and therefore, could not have been relied upon for binding the parties to an Arbitration Agreement.

13. I find no merit in the above submission of the learned senior counsel for the petitioner. As noted above, the respondent had earlier filed a suit for seeking possession of the shop. This was contested by the petitioners, with petitioner no.1 acting as attorney of petitioner no.2, alleging existence of the Arbitration Agreement in the Partnership Deed. This plea of the petitioners was accepted by the Court and the suit filed by the respondent was dismissed. Thereafter, when the respondent sought reference of the dispute to arbitration, the petitioners turned turtle and now challenged the Partnership Deed itself as also the existence of the Arbitration Agreement. The respondent accepted such plea and therefore, filed another suit claiming possession and mense profits. Here again, the petitioners, with petitioner no.1 in his individual capacity as

OMP No.432/2015 Page 6 also as an attorney of petitioner no.2, challenged the maintainability of the suit on principle of res judicata. The petitioners could have relied upon the earlier order for their plea only if the petitioners were still maintaining that there was an Arbitration Agreement in existence between the parties and that such dispute could be referred to arbitration. The petitioners succeeded in their challenge and the suit filed by the respondent was dismissed. Infact, in the appeal filed by the respondent, with the consent of the parties, the parties were referred to arbitration. Certainly, it is too late in the day for the petitioners to now challenge the existence of an Arbitration Agreement between the parties. No such plea was also taken by the petitioner no.1 before the Arbitrator.

14. I may also note that petitioner no.1 claimed an independent right of title to the shop before the Arbitrator and in the alternate, he pleaded a case of adverse possession. Both these pleas have been found to be incorrect by the Arbitrator on appreciation of the evidence led before him. No serious challenge to such findings has been laid by the learned senior counsel for the petitioner. He only submits that the land in question was a shamlat deh land and therefore, only a revenue Court could have decided on the issue of possession.

15. In my opinion, the said plea does not appear to have been taken before the Arbitrator. In any case, the dispute between the parties is in relation to the right of the petitioners to hold on

OMP No.432/2015 Page 7 to the possession of the shop upon dissolution of the Partnership Deed/termination of licence by the respondent.

16. In view of the above, I find no merit in the present petition. The same is dismissed with cost quantified at Rs.25.000/-.

                                                 NAVIN CHAWLA, J
FEBRUARY 18, 2019
RN




OMP No.432/2015                                                    Page 8