Karnataka High Court
Shobha W/O Shrikantrao vs Raghavendra Ramachandra Innanje on 23 December, 2021
Bench: M.G.Umapresided Bymguj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA.NO.25344/2012
C/W MFA CROB.820/2013
IN MFA NO.25344/2012
BETWEEN
1. SMT.SHOBHA W/O SHRIKANTRAO
AGE: 60 YEARS, OCC: HOUSEHOLD WORK
R/O.NO.708, 17TH MAIN
SARASWATIPURAM, MYSORE- 570009
2. SMT.USHA KISHORE
AGE: 55 YEARS, OCC: HOUSEHOLD WORK
R/O.NO.87, NANDIDURG ROAD
BENSON TOWN, BANGALORE-560046
...APPELLANTS
(BY SRI.UDAY HOLLA, SENIOR COUNSEL FOR
SRI.SURESH KINI & SRI.N.S.KINI, ADVS.)
AND
1. SRI.RAGHAVENDRA RAMACHANDRA INNANJE
AGE: 53 YEARS, OCC: BUSINESS
R/O.HOTEL ASHOKA TOWERS, LAMINGTON ROAD, HUBLI
2. SRI.U INNANJE GURURAJ
AGE: MAJOR, OCC: BUSINESS
R/O.VIPRA TRAVELS, ASHOK HOTELLAMINGTON ROAD,
HUBLI-580020
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3. SRI.U UNNANJE SHRIKANT
AGE: MAJOR, OCC: BUSINESS
R/O. HOTEL SAMRAT ASHOK,
LAMINGTON ROAD, HUBLI-580020
4. SMT.SHARADA W/O RAMACHANDRA BHAT
AGE: 80 YEARS, OCC: HOUSEHOLD WORK
R/O.GEETPRASAD, CHITAGUPPI PARK, HUBLI
SINCE RESPONDENT NO.4 IS DECEASED, THE APPELLANTS 1
and 2 AND RESPONDENTS NO.1 TO 3 ARE THE ONLY LRS.
HENCH THEY ARE ALREADY ON RECORD.
RESPONDENTS
(BY SRI.SANGRAM S.KULKARNI, ADV. FOR R1,
SRI.V.P.KULKARNI, ADV. FOR R1 & R2,
R3 SERVED; R4 DECESED & APPELLANT NOS.1 & 2 AND
R1 TO R3 ARE LRS OF DECEASED R4)
THIS APPEAL IS FILED U/S U/SEC.37(1) OF THE ARBITRATION
AND CONCILIATION ACT, AGAINST THE JUDGMENT AND ORDER
DTD:14.08.2012 PASSED IN ARBITRATION SUIT NO.6/2010 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD,
PARTLY ALLOWING THE SUIT FILED U/S. 34 OF THE ARBITRATION
AND CONCILIATION ACT.
MFA CROB.820/2013
BETWEEN
SRI.RAGHAVENDRA RAMACHANDRA INNANJE
AGE: 56 YEARS, OCC: BUSINESS
R/O.HOTEL ASHOKA TOWERS, LAMINGTON ROAD, HUBLI.
...CROSS OBJECTOR
(BY SRI.SANGRAM S.KULKARNI,)
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AND
1. SMT.SHOBHA W/O SHRIKANTRAO
AGE: 62 YEARS, OCC: HOUSEHOLD WORK
R/O.NO.708, 17TH MAIN,
SARASWATIPURAM, MYSORE- 570009
2. SMT.USHA KISHORE
AGE: 58 YEARS, OCC: HOUSEHOLD WORK
R/O.NO.87, NANDIDURG ROADBENSON TOWN,
BANGALORE-560046
3. SRI.U. INNANJE GURURAJ
AGE: 59 YEARS, OCC: BUSINESS
R/O. WIPRA TRAVELS ASHOK HOTEL
LAMINGTON ROAD, HUBLI, DIST: DHARWAD.
4. SRI.UNNANJE SHRIKANT
AGE: 57 YEARS, OCC: BUSINESS
R/O. HOTEL SAMRAT ASHOK
LAMINGTON ROAD, HUBLI, DIST: DHARWAD.
5. SMT.SHARADA W/O. RAMACHANDRA BHAT
AGE: 82 YEARS, OCC:HOUSEHOLD WORK,
R/O. GEETAPRASAD, CHITAGUPPI PARK,
HUBLI -580020, DIST: DHARWAD.
...RESPONDENTS
(BY SRI.SRI.SURESH N.KINI, ADV. FOR R1 & R2,
SRI.KUSHAL V.BOLMAL & SRI.PURUSHOTTAM MANCHALI, ADVS.
FOR R3;
R4 SERVED; R5 DECEASED & R1 TO R4 ARE LRS OF DECEASED R5)
THIS MFA CROB. U/O 41 RULE 22 OF CPC 1908, SET ASIDE THE
JUDGMENT AND AWARD DTD:14.08.2012 PASSED IN ARBITRATION
SUIT NO.6/2010 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, PARTLY ALLOWING THE SUIT FILED
U/S. 34 OF THE ARBITRATION AND CONCILIATION ACT.
THIS APPEAL AND CROSS OBJECTION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 06.12.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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JUDGMENT
The appellants in MFA No.25344/2012 being the claimants
in the arbitral proceedings and respondent Nos.1 and 2 in
A.S.No.6/2010 on the file of the learned Principal District and
Sessions Court, Dharwad (hereinafter referred to as 'the court'
for short) are before this court to modify the award passed by
the court reducing the rate of interest to 6% p.a. on the amount
that is to be paid to them and to restore the award passed by
the learned arbitrator awarding interest at the rate of 18% p.a.
from 22.06.1993, along with cost of the arbitral proceedings.
2. Respondent No.1-cross objector was the petitioner in
A.S.No.6/2010 and one of the respondents before the learned
arbitrator is before this court in MFA.Crob.820/2013 challenging
the impugned judgment and award passed by the court and also
by the learned arbitrator directing the respondents to pay
Rs.3,00,000/- each to the appellants with interest at 18% p.a.
and seeking to set aside the award passed against him.
3. Brief facts of the case are that, Sri.U.Ramachandra
Bhat is the father of the appellants and respondents. He had two
daughters and three sons. He owned various properties in
Hubballi which are described as scheduled properties. During the
lifetime of the said Ramachandra Bhat, he formed a partnership
firm by name Ashok Hotel consisting of himself and his three
sons, as partners. It is stated that Clause 18 of the said
partnership deed provides for arbitration clause of any dispute
between the partners or their representative of such partners.
On 22.06.1993, the said Ramachandra Bhat died and it is
contended by the appellants/daughters that he died intestate
and they have begotten 2/5th share over the schedule properties.
It is stated that one Sri.Biradar obtained signatures of the
appellants/daughters on a document stating that wishes of the
deceased Ramachandra Bhat will be fulfilled by giving effect to
the same through the document. It is stated that thereafter, the
partnership was reconstituted with the consent of the appellants.
4. It is the contention of the appellants that their father
late Ramachandra Bhat earned these properties and joined his
sons as partners only for income tax purposes. The properties
left behind by the deceased Ramachandra Bhat is worth more
than Rs.100 crores. Respondent Nos.1 to 3 being the sons have
not contributed anything either in securing the properties or
developing it. The respondents neglected to give the share in the
schedule properties left behind by late Ramachandra Bhat to the
plaintiffs. Since there was an arbitration clause in the
partnership deed to which father of the appellant was a party,
Misc.Petition No.35/2005 was filed before this court seeking
appointment of the arbitrator. The said petition was allowed and
Sri.S.Anantmurthy, Retd. District Judge was appointed as the
sole arbitrator.
5. Learned arbitrator passed an award after holding the
proceedings. As per the award, each of respondent Nos.1 to 3
were directed to pay Rs.3,00,000/- each to the appellants, with
interest at 18% p.a. from 22.06.1993 till the date of payment,
within three months from the date of the award, along with cost
of arbitration. Respondent No.1 is the cross objector herein
challenged the said award by filing the Arbitration Suit in
A.S.No.6/2010 before the court. The said suit was partly decreed
confirming the award passed by the learned arbitrator but
reducing the rate of interest from 18% p.a. to 6% p.a. to be paid
on Rs.3,00,000/- that is to be paid to each of the appellants.
6. Being aggrieved by reduction of the rate of interest
from 18% p.a. to 6% p.a. in the arbitration suit, the appellants
who are the daughters of late Ramachandra Bhat are before this
court seeking restoration of the rate of interest awarded by the
learned arbitrator.
7. In the meantime, the cross objector respondent No.1
who is one of the sons of late Ramachandra Bhat is impugning
the judgment passed in A.S.No.6/2010 wherein the award
passed by the learned arbitrator was confirmed except reducing
the rate of interest as stated above by filing the cross objection.
8. Heard learned Senior Counsel Sri.Uday Holla for
Sri.Suresh Kini and Sri.N.S.Kini for the appellants, Sri.Sangram
S.Kulkarni for respondent No.1 and Sri.Kushal Bolmal &
Sri.Puroshottam Manchali for respondent No.3.
9. Learned senior counsel representing the
appellants/daughters submitted that the deceased Ramachandra
Bhat, father of the appellants died intestate leaving behind him
huge properties worth more than Rs.100 Crores. As per the
partnership deed that was entered into between late
Ramachandra Bhat along with his three sons, there was an
arbitration clause to settle the dispute between the partners or
their legal representatives. In terms of the said clause 18, found
in the partnership deed, the sole arbitrator was appointed who
passed an award directing each of the respondents/sons to pay
an amount of Rs.3,00,000/- to each of the appellants, with
interest at 18% p.a. from 22.06.1993 along with full cost of the
arbitration proceedings within three months from the date of the
award. Even though the appellants were entitled for 2/5th share
in all the properties left behind by their father, they being
daughters satisfied with the award passed by the sole arbitrator.
Even though a paltry sum of Rs.3,00,000/- was ordered to be
paid by each of the brothers with interest, however, the said
award of the sole arbitrator was challenged by one of the brother
while other two brothers have accepted the same. But however,
they have also not paid even the said sum of Rs.3,00,000/-
ordered to be paid as per the award passed by the sole
arbitrator. The arbitration suit filed by the cross objector herein
was considered by the trial court once again and affirmed the
arbitration award passed by the sole arbitrator. However, the
rate of interest was reduced from 18% p.a. to 6% p.a.
Therefore, the appellants are before this court challenging the
portion of the judgment passed in A.S.No.6/2010.
10. Learned Senior Counsel submitted that cross-
objector and other respondents deliberately withholding the
amount that was ordered to be paid under the arbitration award.
Even though the properties are worth more than Rs.100 Crores,
the appellants are satisfied with the arbitration award, but in
spite of that, the brothers are not ready to pay the amount and
settle the dues. The whole idea behind filing of the arbitration
suit and also filing of cross objection before this court is to deny
the proceeds of arbitration award to the appellants.
11. Learned Senior Counsel contended that the scope of
Section 34 of the Arbitration and Conciliation Act, 1996
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(hereinafter referred to as 'the Act' for short) is very limited and
only on satisfying the grounds made out under Section 34(2) of
the Act, the court can interfere with the arbitration award but
not otherwise. It is settled proposition of law that court cannot
sit in judgment over arbitration award to re-appreciate the
materials on record. In the present case, none of the grounds
mentioned under Section 34(2) of the Act are made out for the
court to interfere with the rate of interest that was granted in
the arbitral award. Therefore, the interference by the trial court
in the rate of interest that is to be paid by the respondents, is
illegal and the same is to be set aside by restoring the arbitral
award passed by the sole arbitrator.
12. Learned Senior Counsel placed reliance on the
decisions of the Hon'ble Apex Court in the case of Satna Stone
and Lime Company Limited Madhya Pradesh And Others
vs. Union of India and Another1; Oil and Natural Gas
Corporation vs Wig Brothers Builders and Engineers
Private Limited2; Ravindra Kumar Gupta and Company vs
(2008) 14 SCC 785
(2010) 13 SCC 377
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Union of India3 and Associate Builders vs Delhi
Development Authority4 to contend that the arbitrator is the
sole judge who can consider the evidence before him and it is
not for the court to act as a judge by reconsideration of the
evidence that were placed before the arbitrator. The court should
approve the award by supporting the same, unless it falls under
Section 34(2) of the Act.
13. The learned Senior Counsel also placed reliance on
the decision of the Hon'ble Apex Court in the case of P.R.Shah,
Shares and Stock Brokers vs B.H.H.Securities Private
Limited and Others5 to contend that the court cannot sit in
appeal over the award of an Arbitral Tribunal by reassessing or
re-appreciating the evidence. Learned Senior Counsel contended
that position of law is made very clear that the arbitral award
can be challenged only under the grounds mentioned under
Section 34(2) of the Act.
(2010) 1 SCC 409
(2015) 3 SCC 49
(2012) 1 SCC 594
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14. Learned Senior Counsel also placed reliance on the
decision of the Hon'ble Apex Court in the case of State of
Haryana and Others vs S.L.Arora and Company6 to contend
that Arbitral Tribunal can award interest in accordance with
Section 31(7)(a) of the Act, subject to any term regarding
interest in the contract. The interest awarded by the arbitrator
can be interfered with by the court only if it finds that such
award of the interest is in conflict with, or violating the public
policy of India, but not under any other circumstances. The
discretion of the arbitrator is to fix the rate of interest under the
facts and circumstances of the case. The arbitrator is authorized
to award interest to pre-reference period, pendent elite period,
post-award period and post-decree period. The award of interest
at the rate of 18% p.a. is quite reasonable as awarded by the
arbitrator and there are no reasons for the court to interfere with
the same.
15. Learned Senior Counsel also placed reliance on the
decision of the Hon'ble Apex Court in the case of Hyder
Consulting (UK) Limited vs Governor, State of Orissa
(2010) 3 SCC 690
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through Chief Engineer7 to contend that generally the interest
will be imposed to compensate for denial to one party, by the
other party, of money which rightfully belongs to said former
party and the pre-award interest is to ensure that arbitral
proceedings are concluded without unnecessary delay as longer
the proceedings, longer would be the period attracting interest,
it will ensure speedy payment in compliance with the arbitral
award.
16. Learned Senior Counsel also placed reliance on the
decision of the Hon'ble Apex Court in the case of Reliance
Cellulose Products Limited vs Oil and Natural Gas
Corporation Limited8 to highlight the position of law that the
arbitrator has jurisdiction to award interest for all the three
periods, i.e., pre-reference period, pendent elite and post-award
period. He also placed reliance on the decision of the Hon'ble
Apex Court in the case of MMTC Limited vs Vedanta Limited9
to contend that the trial court acting under Section 34 of the Act
does not sit in appeal over the arbitral award to interfere with
(2015) 2 SCC 189
(2018) 9 SCC 266
(2019) 4 SCC 163
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the same on merits, unless a ground is made out under Section
34(2)(b)(ii) i.e., unless the award is against the public policy of
India. But such interference would not entitle the court to
interfere with the rate of interest awarded. Relying on this
decision, learned Senior Counsel contended that when the award
of interest by the arbitrator should have been upheld by the
court, unless the findings of the arbitrator are arbitrary,
capricious or perverse, or when the conscience of the court is
shocked, or when such illegality goes to the root of the matter.
17. Placing reliance on these decisions, learned Senior
Counsel contended that the learned arbitrator after recording
evidence and considering the documents that were relied on by
the parties, appreciated the same and exercised judicious
discretion by passing the arbitral award. But the trial court
exceeding the limits under Section 34 of the Act, proceeded to
modify the award without any ground made out as required
under Section 34(2)(b)(ii) of the Act. The trial court has also
proceeded to record the evidence and also marked the
documents once again, even though the scope of Section 34 of
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the Act is very limited. Therefore, modification of the arbitral
award by reducing the interest payable to the appellants is
apparently erroneous, which has to be interfered with by this
court. Accordingly, he prays for allowing the appeal.
18. Per contra, learned counsel for respondent
No.1/cross objector opposing the submissions made by the
learned Senior Counsel contended that there is inordinate delay
in seeking the reference of the dispute to arbitration, when there
is no arbitration agreement between the appellants and the
respondents to refer the dispute to the arbitration. The said
stand taken by respondent No.1 when Misc.Petition No.35/2005
was filed before this court seeking appointment of an arbitrator
and while passing the order, this court categorically held that it
is for the arbitrator to consider the objections or issues raised by
the respondents, including existence of valid arbitration
agreement between the parties and such other matters, which
goes to the very jurisdiction of the Arbitral Tribunal. The
arbitrator or the trial court have not considered these issues
which go to the root of the matter. When there is no valid
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arbitration agreement, the jurisdiction of the arbitrator to decide
the dispute itself would be taken away. When there is inordinate
delay in approaching the court will disentitle the appellants from
seeking any relief.
19. Learned counsel submitted that the deceased
Ramachandra Bhat and the respondents were partners of the
partnership firm which has nothing to do with the appellants.
The partnership firm was reconstituted with the consent of the
appellants after the death of the Ramachandra Bhat. But the
appellants are not parties to the partnership deed at any point of
time and they cannot take advantage of the clause in the said
deed, to seek reference of the dispute to the arbitrator. Learned
counsel further submitted that Ex.P2 on which the appellants are
relying do not contain any arbitration clause to seek appointment
of the arbitrator.
20. Learned counsel further contended that, initially the
appellants issued the notice seeking appointment of an arbitrator
on 07.06.1995. The respondents have issued a reply on
01.09.1995, but the appellants approached this court seeking
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appointment of an arbitrator by filing Misc.Petition No.35/2005
i.e., after lapse of 10 years. Issuance of notice subsequently was
only to save the limitation and it would not enure to the benefit
of the appellants. Therefore, the very award passed by the
arbitrator is bad in the eye of law and the same is liable to be set
aside.
21. Learned counsel further submitted that the deceased
Ramachandra Bhat father of the respondents died testate as he
left behind a Will. The respondents have obtained probate of the
said Will by the competent court. The appellants never objected
for grant of probate. Under such circumstances, the appellants
cannot claim any share in the business or in the properties left
behind by the deceased Ramachandra Bhat.
22. Learned counsel also submitted that granting of
interest without there being an agreement to that effect, that too
prior to the date of request for referring the dispute to the
arbitration is beyond the scope of the arbitral proceedings in
view of Section 21 of the Act. Learned arbitrator awarded
interest that too at the rate of 18% p.a. from the date of Ex.P2,
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which is much before even issuance of notice seeking
appointment of an arbitrator. Even according to the appellants,
the cause of action for filing miscellaneous petition before this
court was on 13.01.2005 i.e., when the second notice was issued
and therefore, at the most the interest could have been awarded
from that date and not from 1995.
23. Learned counsel further submitted that as per
Section 7 of the Act, an arbitration agreement to seek
appointment of an arbitrator under the Act should be in writing,
signed by the parties. In the present case, no such agreement is
in existence, which was also ignored by the arbitrator while
passing the award in question. Learned arbitrator ignored the
substantive provisions of law of the Limitation Act and also of the
Arbitration and Conciliation Act and therefore, the award is
opposed to the public policy as highlighted under Section
34(2)(b)(ii) of the Act.
24. Learned counsel placed reliance on the decision of
the Delhi High Court in the case of Lalit Kala Accademy vs
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Svapan Const. Ae+10 to contend that, before passing the
award, the Arbitral Tribunal ought to have considered and
answered at the first instance and before ventured to decide the
claims of the parties, with regard to the existence of the
arbitration agreement/clause, jurisdiction of the arbitrator to
decide the issue and also the objections regarding bar of
limitation. The party should have left to take any statutory
remedy when the arbitrator was not having jurisdiction to
entertain the reference. He further contended that, when such
serious objections were raised by the respondents which go to
the root of the matter, the arbitrator should have held
preliminary enquiry and preliminary finding should have been
given. No such procedure was adopted by the learned arbitrator
which vitiates the entire proceedings.
25. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in the case of Oil and Natural Gas
Corporation Ltd., vs SAW Pipes Ltd.11 to contend that, if the
award is contrary to the substantive provisions of law or the
(2005) DLT 495
AIR 2003 SC 2629
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provisions of the Act or against the terms of the contract, it
would be patently illegal, which could be interfered under
Section 34 of the Act. Therefore, learned counsel for respondent
No.1/cross objector seeks for dismissal of the appeal as devoid
of merits and to allow the cross objection by setting aside the
arbitral award passed by the arbitrator, which is confirmed by
the court.
26. Learned Senior Counsel in reply to the above,
submitted that father of the appellants late Sri.Ramachandra
Bhat was party to the partnership deed which is marked as
Ex.P1 and Clause 18 is the arbitration clause, which provides for
referring the disputes, not only between the partners, but also
between the legal representatives of the partners. The question
as to whether there was arbitration clause for appointment of an
arbitrator or not and whether the claim of the appellants is
barred by limitation, were considered by the learned arbitrator
by framing specific issues at para 10 of the arbitral award. Those
issues were answered in favour of the appellants after discussing
about the rival contentions between the parties. The said finding
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was also affirmed by the trial court while acting under Section 34
of the Act. Therefore, the cross objector cannot once again raise
the same issue before this court as the scope of Section 37 of
the Act is also very restricted. Even while filing cross objection,
the question of limitation was never raised by the cross objector.
27. Learned Senior Counsel further submitted that, even
though learned counsel for the respondents contended that
deceased Ramachandra Bhat had left behind him a Will and a
probate was obtained, the same was suppressed before any of
the proceedings. Even in the so called probate proceedings, the
appellants were not made as parties. The conduct on the part of
the respondents itself go a long way in deciding the matter. It is
nothing but a fraud committed by the respondents not only
against the appellants but also against the court.
28. Learned Senior Counsel referred to the decision in
Associate Builders (supra) to contend that the decision in
ONGC (supra) relied on by the learned counsel for respondent
No.1/cross objector was referred to by the Hon'ble Apex Court in
this case to form an opinion that, when a court is applying the
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public policy test to an arbitration award, it does not act as a
court of appeal and consequently errors of fact cannot be
corrected. Thus, the cross objector cannot contend that phrase
"public policy of India" used in Section 34 of the Act is required
to give a wider meaning. Thus, the learned Senior Counsel prays
for allowing the appeal and to dismiss the cross objection in the
interest of justice.
29. Perused the material on record. The point that would
arise for my consideration is:
Whether the judgment and decree dated
14.08.2012 passed by the learned Principal District
and Sessions Judge, Dharwad in Arbitration Suit
No.6/2010 calls for any interfere by this court in this
appeal and cross objection?
My answer to the above point is in the 'Affirmative in the
appeal and in the negative in the cross objection' for the
following:
REASONS
30. The brief facts of the case relating to the appeal and
cross objection are that, the appellants being the daughters of
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late U.Ramadhandra Bhat who was the owner of the property
bearing CTS Nos.4269 and 4630 situated at Hubballi measuring
18900 sq.ft. which is described as schedule property along with
four storyed building admeasuring 41,192 sq.ft with 130 rooms
and started a hotel under the name and style as a Ashok Hotel,
worth more than Rs.100 crore. It is also contended by the
appellants that their father late Ramachandra Bhat owned a
house property bearing No.17 measuring 96 ft. x 80 ft. with a
house measuring 8000 sq.ft. which is worth more than Rs.10
crore. The said Ramachandra Bhat was having three sons and
two daughters and during his lifetime, a partnership firm under
the name and style M/s Ashok Hotel was formed consisting him
and his three sons. It is stated that clause 18 of the said
partnership deed provides arbitration in case of dispute between
partners or their legal heirs or representatives. The said
Ramachandra Bhat died intestate. Therefore, it is the contention
of the appellants that they are entitled for 2/5th share in the
scheduled properties. However, within 3-4 days from the death
of their father, the appellants were made to sign a document at
the instance of one Mr.Biradar, who persuaded the appellants
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saying that it was the wish of late Ramachandra Bhat and
accordingly, the appellants have signed the same without
knowing the contents of it. It is stated that the partnership firm
in question formed only for the purpose of income tax, but the
sons have never contributed anything to the partnership firm as
the properties were the self-acquired properties of the deceased.
It is stated that after getting signatures from the appellants on
the document by Mr.Biradar who is the well-wisher of the
deceased Ramachandra Bhat, the sons of late Ramachandra
Bhat reconstituted the partnership firm with consent of the
appellants.
31. It is contended that even though the appellants are
entitled to 2/5th share in all the properties that were left behind
by their father late Ramachandra Bhat, since they felt that they
were bound by the document, signed by them as it was the wish
of their late father, they claimed right on the basis of the said
document dated 22.06.1993, according to which, each of the
sons of late Ramachandra Bhat are required to pay
Rs.3,00,000/- to each of the daughters in lieu of their legitimate
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share over the properties left behind by their father. However, it
is the contention of the appellants that their brothers have not
acted upon to pay the said amount of Rs.3,00,000/- each even
though they got reconstituted the partnership firm by obtaining
signatures of the appellants, immediately, after the death of
their father.Therefore, a Misc.petition No.34/2005 was filed
before this court and the arbitrator was appointed to resolve the
dispute and the learned arbitrator passed an arbitral award
directing respondent Nos.1 to 3 to pay Rs.3,00,000/- each to the
appellants with interest at the rate of 18% p.a. from the date of
the document i.e., 22.06.1993 till its realization and with costs
of the arbitration. This arbitral award was questioned before the
court under Section 34 of the Act by respondent No.1 who is the
cross-objector herein, in A.S.No.6/2010 which was came to be
allowed in part, but the arbitral award passed by the learned
arbitrator was confirmed. However, the rate of interest to be
paid at the rate of 18% p.a. was reduced to 6% p.a. This finding
of the court in A.S.No.6/2010 is challenged by the appellants
herein and respondent No.1 being the cross-objector is
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challenging the confirmation of the award passed by the learned
arbitrator.
32. It is the contention of the cross-objector who is the
one of the sons of the late Ramachandra Bhat that there was
inordinate delay and laches on the part of the appellants in
seeking appointment of the arbitrator. The relationship between
the parties is not in dispute. However, it is submitted that their
father died on 19.06.1993, but the miscellaneous petition
seeking appointment of the arbitrator was filed in the year 2005.
The said miscellaneous petition was came to be allowed by this
court. However, the cross-objector was permitted to raise issue
regarding existence of valid arbitration agreement between the
parties and such other like matters which goes to the very
jurisdiction of the Arbitral Tribunal before the arbitrator.
Therefore, respondent No.1 had raised the issue of limitation
before the learned arbitrator.
33. It is also the contention of respondent No.1 that
there was no arbitral agreement between the parties and
therefore, the dispute could not have been referred to the
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arbitration. In spite of that the learned arbitrator was appointed
and again reserving liberty to raise the issue regarding existence
of valid arbitration agreement between the parties and such
other like matters which goes to the very jurisdiction of the
Arbitral Tribunal. This issue was also highlighted before the
learned arbitrator.
34. The third contention raised by the cross-objector is
that, his father Ramachandra Bhat had left behind him a Will and
therefore, he had not died intestate. As per the Will, it is only
the sons who are entitled for the properties left behind by
theirfather. Therefore, the appellants are not at all the legal
representatives of the deceased. The sons of late Ramachandra
Bhat obtained probate in respect of the Will by initiating the
probate proceedings and obtained probate. Under such
circumstances, the appellants are not entitled for any share in
the properties that was left behind by the testator.
35. The next contention raised by the learned counsel for
the cross-objector is that, when the issues like jurisdiction of the
arbitrator to hold arbitration in the absence of any arbitration
- 28 -
agreement and the limitation in approaching to resolve the
dispute before the learned arbitrator which are core issues to be
decided by him, the same were not considered as preliminary
point, but proceeded to pass the impugned award without any
jurisdiction. The arbitral award passed by the learned arbitrator
was without considering the above facts and circumstances and
it is opposed to public policy and should have been set aside by
the court in the suit filed by him. However, the court also did not
considered these facts and circumstances and proceeded to
confirm the arbitral award. But the rate of interest was reduce
from 18% p.a. to 6% p.a. Therefore, it the contention of the
cross-objector that the entire arbitral award is opposed to public
policy, as the same was passed without jurisdiction and passed
patently in violation of the statutory provisions. Therefore, it is
to be interfered with.
36. The relationship between the parties is not in dispute
so also the fact that late Ramachandra Bhat acquired huge
properties from out of his own income and died on 19.06.1993.
The appellants contend that his father died intestate while the
- 29 -
cross-objector contends that their father died testate, as he left
behind him a Will in respect of which a probate was obtained by
the competent court in P&SC.No.4/2001 by the sons of the
testator who are legatees under the Will. The learned arbitrator
raised a specific issue i.e., issue No.5 as to whether respondent
Nos.1 to 3 prove that late Sri.U.R.Bhat had executed a Will and
it has been duly probated. While answering the said issue No.5,
the learned arbitrator held that initially a photocopy of the order
sheet in P&SC No.4/2001 filed under Section 372 of Indian
Succession Act and the order passed therein dated 06.09.2001
was produced before the arbitrator. It was noticed by the
learned arbitrator that the appellants were not parties to the said
P&SC proceedings and existence of the Will was never raised by
the respondents while issuing the reply notice. The Will was not
produced before the arbitrator and that even according to the
Will, widow of the testator was given the life interest in the
immovable properties situated at Hubballi. Respondent No.1 was
claiming partition of the said properties even during her lifetime.
Considering all these facts and circumstances, a specific finding
is given by the learned arbitrator that the daughters were kept in
- 30 -
dark about filing of P&SC proceedings. They were not confronted
with the Will said to have been executed by their father.
Therefore, the probate was obtained behind the back of the
daughters and as such, they are not bound by the same. This
finding of the learned arbitrator cannot be found fault with under
any law for the time being in force. But on the other hand, it is a
well reasoned finding by the learned arbitrator.
37. The next contention raised by the cross-objector is
that there is inordinate delay in claiming the share over the
property in terms of the document dated 22.06.1993 and
therefore, the proceedings before the arbitrator was barred by
limitation. The learned arbitrator has framed issue No.2 with
regard to the question of limitation and answered the said issue
in the negative, holding that the proceedings is not barred by
limitation. Learned arbitrator after considering the rival
contentions of the parties held that ouster of the appellants from
the joint family was never proved by the respondents and
accepted the contention of the appellants that only after denying
their right to get a share, they approached this court for
- 31 -
appointment of an arbitrator, which was well within time.
Learned arbitrator categorically held that merely because the
father died way back on 19.06.1993, the right of the daughters
over the properties left behind by him will not be taken away by
efflux of time. But on the other hand, held that appellants being
the daughters have stepped into the shoes of their father in
respect of the assets of the firm and they had continuous cause
of action to have their share ascertained and thus, the
proceedings initiated is not barred by limitation. This finding of
the learned arbitrator is also cannot be said to be perverse as he
has referred to the contention of both the parties and has
answered the issue in the negative which is liable to be upheld.
38. Maintainability of the arbitral proceedings was also
questioned by the cross-objector and issue No.1 was framed by
the learned arbitrator as to whether the arbitration proceeding is
maintainable and whether there was cause of action for the
claimants. The learned arbitrator has considered this aspect of
the matter in the light of the scope of Section 40(1) of the Act
and considered partnership deed dated 05.03.1993 and clause
- 32 -
18 which provides for appointment of an arbitrator to resolve the
dispute not only between the partners but also between their
legal heirs, who include appellants. The contention of the
appellants that the partnership deed was never came into effect
was out-rightly rejected by the learned arbitrator.
39. The learned arbitrator specifically noticed that issue
No.2 regarding limitation was taken up for preliminary hearing,
but he found that the arbitral proceedings was maintainable only
in respect of Ashok Hotel business and related matters in respect
of which Ex.D3-partnership deed and clause 18 the arbitral
clause is in existence.
40. Apart from that, issue Nos.3 and 4 were also raised
regarding entitlement of the claimants for Rs.9,00,000/- each
from respondent Nos.1 to 3 jointly and severally along with
interest and also with regard to their claim for compensation of
Rs.10,00,000/- as damages with interest. The additional issues
as to whether disputed property was the self-acquired property
of their father late Ramachandra Bhat and whether the claimants
are entitled to have a share over the same and whether the
- 33 -
claimants are entitled for partition and separate possession of
their shares in the disputed property along with interest thereon
were also framed. Learned arbitrator found that the claimants
have signed the document dated 22.06.1993 which was brought
by Mr.Biradar and thereby the appellants have agreed to receive
Rs.3,00,000/- each from each of their brothers and the
partnership firm was also reconstituted immediately thereafter
wit the consent of the claimants. Therefore, it was held that they
are only entitled for Rs.3,00,000/- each from each of their
brothers and not any share over the properties. It was also held
that the claimants are not entitled for damages or compensation
as claimed, but they are entitled for interest at the rate of 18%
p.a. Thus, an award was passed directing each of respondent
Nos.1 to 3 to pay Rs.3,00,000/- within three months to each of
the claimants with interest at the rate of 18% p.a. from
22.06.1993 i.e., the date of the document on which the parties
were relying on, along with full cost of arbitration proceedings.
41. On going through this arbitral award passed by the
learned arbitrator, it cannot be said that the learned arbitrator
- 34 -
has went wrong on any point or left any issue that was raised by
the parties to the lis, unanswered.
42. I have considered the contention of the learned
counsel for the cross-objector that the arbitral award is opposed
to the public policy and therefore should have been set aside by
the court in A.S.No.6/2010. The arbitral award was challenged
before the court in A.S.No.6/2010 under Section 34 of the Act.
As per Section 34(2), arbitral award could be set aside by the
court only after satisfaction of the requirement mentioned in
sub-Sections (a)(b) of Section 34 of the Act and not otherwise.
It is the specific contention of the cross-objector that his case
falls under Section 34(2)(b)(ii) where the arbitral award passed
by the learned arbitrator is in conflict with the public policy of
India.
43. In this regard, he has placed reliance on the decision
of the Delhi High Court in Lalit Kala Accademy (supra) wherein
the Court while considering the jurisdiction of the Arbitral
Tribunal held that looking to the facts and circumstances of the
case and also objections raised before the Arbitral Tribunal
- 35 -
regarding jurisdiction and existence of valid arbitration
agreement, Tribunal should have considered and answered the
said issue in the first instance before it ventured to decide the
claim of respondent No.1 on merits. In the present case, the
contention of the cross-objector that issue No.2 regarding
limitation should have been taken up for preliminary hearing and
that the arbitral proceedings could not be commenced without
deciding the same was rejected and it was held that the arbitral
proceedings was maintainable only in respect of Ashok Hotel
business and related matters on the basis of Ex.D3-partnership
deed on which reliance was placed by the cross-objector himself.
44. It is not in dispute that clause 18 of the said
partnership deed provides for resolving the dispute not only
between the partners but also between the legal heirs through
arbitrator. Since the appellants have stepped into the shoes of
their father after his death as his legal heirs, they are entitled to
take advantage of clause 18. Therefore, I do not find any merit
in the said contention raised by the cross-objector.
- 36 -
45. Learned counsel for the cross-objector also placed
reliance on the decision of ONGC (supra) to contend that the
impugned arbitral award is in conflict with the public policy of
India and it is patently illegal which could have been interfered
with under Section 34 of the Act. I have given my anxious
consideration to the said decision of the Hon'ble Apex Court,
which considered the phrase 'public policy of India' used in
Section 34 and held that wider meaning is to be given to mean
public policy which concern public good and the public interest.
However, it is specifically held that the award which is, on the
face of it, patently in violation of statutory provisions cannot be
said to be in public interest. Therefore, such award could be set
aside, if it is contrary to fundamental policy of Indian law, the
interest of India, or justice or morality or in addition, if it is
patiently illegal. However, it is specifically stated that, such
illegality must go to the root of the matter. But if the illegality is
of trivial nature it cannot be held that the award is against the
public policy. The Hon'ble Apex Court also held that if the award
is unfair and unreasonable that it shocks the conscience of the
court, then it is liable to be set aside. I have considered the
- 37 -
impugned arbitral award in the light of the dictum laid down by
the Hon'ble Apex Court and by no stretch of imagination, it could
be said that the arbitral award upholding the claim of the
appellants who are admittedly the daughters of the deceased,
would in any manner contrary to fundamental policy of Indian
law, or the interest of India, or justice or morality or in addition,
it is patiently illegal, or that same would go to the root of the
matter. Learned counsel for the respondents could not justify
their contention that the impugned arbitral award is opposed to
public policy or conflict with the public policy of India on any
count except contending that appellants are not entitled for the
reliefs they have claimed.
46. In view of the above, I have considered the
impugned judgment and the award passed by the court in
A.S.No.6/2010.
47. Learned Senior Counsel placed reliance on the
decision of the Hon'ble Apex Court in the case of Santa Sila
Devi and Another vs Dhirendra Nath Sen and Others12
AIR 1963 SC 1677
- 38 -
wherein the Hon'ble Apex Court emphasized certain basic
principles to be adopted while considering the arbitral award.
One such principle is that the court should approach an award
with a desire to support it, if that is reasonably possible, rather
than to destroy it by calling it illegal.
48. He has also placed reliance on P.R.Shah, Shares
and Stock Brokers (supra) wherein the Hon'ble Apex Court
considering the scope and ambit of Section 34(2) of the Act,
categorically held that the court does not sit in appeal over the
award of Arbitral Tribunal by reassessing or re-appreciating the
evidence. An award can be challenged only under the grounds
mentioned in Section 34(2) of the Act.
49. In ONGC (supra), the Hon'ble Apex Court held that,
it is now sell settled proposition of law that, while considering a
challenge to an award under Sections 30 and 33 of the
Arbitration Act, 1940, the court does not examine the award, as
an appellate court. it will not re-appreciate the materials on
record. An award is not open to challenge on the ground that the
arbitrator had reached a wrong conclusion or had failed to
- 39 -
appreciate some facts. But if there is an error apparent on the
face of the award or if there is misconduct on the part of the
arbitrator or legal misconduct in conducting the proceedings or
in making the award, the court will interfere with the award.
50. The Hon'ble Apex Court once again in the case of
Ravindra Kumar Gupta and Company (supra) held that scope
and ambit of the jurisdiction of the courts to interfere with an
arbitration award has been settled in catena of decisions of the
Hon'ble Apex Court and referred to few such judgments to hold
that the court cannot substitute its own evaluation of the
conclusion of law or fact to come to the conclusion that the
arbitrator had acted contrary to the bargain between the parties.
51. The Hon'ble Apex Court in the case of Associate
Builders (supra) held in para 16 and 17 as under:
"16. It is important to note that the 1996 Act was
enacted to replace the 1940 Arbitration Act in order to provide
for an arbitral procedure which is fair, efficient and capable of
meeting the needs of arbitration; also to provide that the
tribunal gives reasons for an arbitral award; to ensure that the
- 40 -
tribunal remains within the limits of its jurisdiction; and to
minimize the supervisory roles of courts in the arbitral process.
17. It will be seen that none of the grounds
contained in sub-section (2)(a) of Section 34 deal with the
merits of the decision rendered by an arbitral award. It is only
when we come to the award being in conflict with the public
policy of India that the merits of an arbitral award are to be
looked into under certain specified circumstances."
(emphasis supplied)
52. In the case of State of Haryana and Others
(supra) while considering the legal position regarding awarding
of interest by the Arbitral Tribunal, the Hon'ble Apex Court held
in para 24.6 as under.
"24.6. Clause(b) of Section 31(7) is intended to ensure
prompt payment by the award-debtor once the award is made.
The said clause provides that the "sum directed to be paid by
an arbitral award" shall carry interest at the rate of 18% per
annum from the date of award to the date of payment if the
award does not provide otherwise in regard to the interest from
the date of the award. This makes it clear that if the award
grants interest at a specified rate up to the date of payment, or
specifies the rate of interest payable from the date of award till
the date of payment, or if the ward specifically refused interest,
clause (b) of Section 31 will not come into play. But if the
award is silent in regard to the interest from the date of award,
- 41 -
or does not specify the rate of interest from the date of award,
then the party in whose favour an award for money has been
made, will be entitled to interest at 18% per annum from the
date of award. He may claim the said amount in execution even
though there is no reference to any pos-award interest in the
award. Even if the pre-award interest is at much lower rate, if
the award is silent in regard to post-award interest, the
claimant will be entitled to post-award interest at the higher
rate of 18% per annum. The higher rate of interest is provided
in clause(b) with the deliberate intent of discouraging award-
debtors from adopting dilatory tactics and to persuade them to
comply with the award."
(emphasis supplied)
53. Similarly, in Hyder Consulting (UK) Limited
(supra) it once again considered the validity of the order to
awarding interest and held in para 26 as under:
"26. Section 31(7)(a) of the Act deals with grant of
pre-award interest while clause (b) of Section 31(7) of the Act
deals with grant of post-award interest. Pre-award interest is to
ensure that arbitral proceedings are concluded without
unnecessary delay. Longer the proceedings, the longer would
be the period of attracting interest. Similarly, post-award
interest is to ensure speedy payment in compliance with the
award. Pre-award interest is at the discretion of the Arbitral
Tribunal, while the post-award interest on the awarded sum is
mandate of the statue-the only difference being that of rate of
- 42 -
interest to be awarded by the Arbitral Tribunal. In other words,
if the Arbitral Tribunal has awarded post-award interest payable
from the date of award to the date of payment at a particular
rate in its discretion then it will prevail else the party will be
entitled to claim post-award interest on the awarded sum at the
statutory rate specified in clause(b) of Section 31(7) of the Act
i.e., 18%. Thus, there is a clear distinction in time period and
the intended purpose of grant of interest."
(emphasis supplied)
54. In Reliance Cellulose Products Limited (supra)
the Hon'ble Apex Court held in paras 7 and 27 as under:
"7. Two important five-Judge Bench judgments have laid
down that, under the 1940 Act, in the absence of an express
bar under the agreement, the Arbitrator has jurisdiction to
award interest for all three periods, i.e., pre-reference,
pendente lite as well as future interest. The judgment of this
Court in Irrigation Department, State of Orissa v. G.C. Roy,
(1992) 1 SCC 508, overruled Jena's case [Executive Engineer
(Irrigation), Balimela v. Abhaduta Jena, (1988) 1 SCC 418] and
held that arbitrators under the 1940 Act would be clothed with
the jurisdiction to award pendente lite interest. Insofar as pre-
reference interest is concerned, another five-Judge Bench in
Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa
and Ors. v. N.C. Budharaj, (2001) 2 SCC 721, held that
arbitrators under the 1940 Act were clothed with the power to
award pre-reference interest even before the 1978 Interest Act
came into force. We are concerned in the present case only
- 43 -
with the 1940 Act. The 1996 Act has made a major departure
from the position under the 1940 Act qua pre-reference and
pendente lite interest which will emerge from the conspectus of
case law laid down by this Court.
27. Coming to Shri Viswanathan's appeal, we think
that the only reason given for reducing interest from 18% to
10% being that ONGC is a Public Sector Undertaking, would not
suffice to set aside what was within the Arbitrator's discretion.
There is no finding that this discretion has been exercised
perversely, given the interest rates at the time of the award.
We thus uphold the grant of interest at the rate of 18% as pre-
reference and pendente lite interest.xxxxxx."
(emphasis supplied)
55. Again in MMTC Limited (supra), the Hon'ble Apex
Court held that majority of the Arbitral Tribunal found in favour
of the respondent, inter alia directed the appellant to pay to the
respondent certain sum with interest @ 14% p.a. till the date of
the award and @ 18% p.a. thereafter which is held to be within
the authority of an arbitrator, which cannot be called in question
in the statute under Section 34 of the Act, as the position is well-
settled by now that the court does not sit in appeal over the
arbitral award and may interfere on merits on the limited ground
provided under Section 34(2)(b)(ii) i.e., if the award is against
the public policy of India or whether the award is arbitrary,
- 44 -
capricious or perverse or when the conscience of the court is
shocked, or when the illegality is not trivial but goes to the root
of the matter and not in any other circumstances.
56. The Hon'ble Apex Court in the recent decision in the
case of Project Director, National Highways No.45E and
220 National Highways Authority of India vs M.Hakeem
and Another13 once again reiterated the position of law that
Section 34 of the Act cannot be held to include within it a power
to modify an award, when such power to modify the award
under Section 34 of the Act was not included by the Legislator in
his wisdom.
57. In the light of these settled position of law, I
considered the impugned judgment and award passed by the
court in A.S.No.6/2010. Even though court confirmed the arbitral
award passed by the learned arbitrator in all other respects,
proceeded to modify the rate of interest awarded by the learned
arbitrator at the rate of 18% p.a. and reduced it to 6% p.a. only
on the basis of the unreported decision of this court in MFA
(2021) 9 SCC 1
- 45 -
No.1557/2006 dated 18.04.2011 wherein the interest that was
awarded by the District Court was modified and reduced to 6%
p.a.
58. Various pronouncements of the Hon'ble Apex Court
as noted above, lays down the principle of law that the arbitrator
can award interest that is, pre-reference period, pendent lite and
post-award period. The learned arbitrator has assigned cogent
reasons for awarding the interest at 18% p.a. which cannot be
said as perverse or illegal to interfere with under section 34 of
the Act. Therefore, I find considerable force in the contention
raised by the learned Senior Counsel in the appeal preferred by
the appellants. Hence, the modification ordered in the impugned
judgment passed by the court regarding the rate of interest is
liable to be set aside, restoring the arbitral award passed by the
learned arbitrator. Even though an attempt was made by the
learned counsel for the respondents to challenge the impugned
arbitral award and the impugned judgment passed by the court
under Section 34 of the Act, I do not find any reason to accept
- 46 -
such contentions to interfere with the arbitral award under
Section 37 of the Act.
59. The Hon'ble Apex Court once again in the case of
Delhi Airport Metro Express Pvt. Ltd. vs Delhi Metro Rail
Corporation Ltd.14 observed that there is a disturbing tendency
of courts setting aside arbitral awards, after dissecting and
reassessing factual aspects of the cases to come to a conclusion
that the award needs intervention and thereafter, dubbing the
award to be vitiated by either perversity or patent illegality,
apart from the other grounds available for annulment of the
award. The Hon'ble Apex Court observed that such an approach
would lead to corrosion of the object of the Arbitration Act and
the endeavours made to preserve this object, which is minimal
judicial interference with arbitral awards. The Hon'ble Apex Court
stated that its several judicial pronouncements would become a
dead letter if arbitral awards are set aside by categorizing them
as perverse or patently illegal without appreciating the contours
of the said expression. It is further held that patent illegality
should be the illegality that goes to the root of the matter. In
2021 SCC Online SC 695
- 47 -
other words, every error of law committed by the Arbitral
Tribunal would not fall within the expression 'patent illegality'.
60. I have considered the impugned judgment passed in
A.S.No.6/2010. It is strange to note that the court proceeded to
record the evidence of the parties and getting exhibits marked
once again and re-appreciated the contention of the parties, as if
it is a suit to be considered on merits.
61. Before parting with the matter with lots of pain, I
have to highlight the sad state of affairs which is still prevailing
in the society. The Constitution of India recognized right of
equality as fundamental right since from its adoption. Even
though 71 long years have elapsed after we adopted Constitution
and even though Section 6(A) of Hindu Succession Act come into
effect from 09.09.2005 and even though Hon'ble Apex Court in
Vineeta Sharma vs Rakesh Sharma and Others15 held that
the daughters cannot be deprived of their right to equality
conferred upon them by Section 6 of the Hindu Succession Act,
the patriarchal mindset has not yet changed. This is a classic
(2020) 9 SCC 1
- 48 -
example of such patriarchal mindset of the respondents who are
sons of late Ramachandra Bhat. Even though father who
acquired vast properties and died in the year 1993, the two
daughters are still struggling to get a paltry sum of
Rs.3,00,000/- from each of the brothers from out of the huge
properties left behind by their father. Fortunately, the
relationship between the parties is admitted. The document
relied on by the appellants is also admitted. The origin of the
property left behind by the deceased is also admitted and it is
not in dispute that the deceased has left behind the immovable
properties worth crores. But still the brothers are fighting
endless litigation only to deny the claim of the daughters over
Rs.3,00,000/- which is remained to be paid as per the last wish
of the deceased.
62. The appellants were in fact entitled to equal share
over the properties left behind by their father. Even though
respondents contended that father died testate as he left behind
him a Will and they obtained a probate in the probate
proceedings, they have not chosen to array the appellants as
- 49 -
parties to the said probate proceedings for the reasons best
known to them. The learned arbitrator rightly held that the said
probate was obtained behind the back of the appellants only with
an intention to deny the legal rights of the appellants. When the
appellants are entitled to equal 2/6th share in all the properties
left behind by their father, they satisfied in claiming the paltry
sum of Rs.3,00,000/- from out of the vast properties left behind
by their father respecting of the consent given by them by
signing the document dated 22.06.1993 i.e., within four days
after the death of their father. They admit that they have given
consent for reconstitution of the partnership firm which said to
have been taken place on 25.06.1993 i.e., within six days after
the death of their father. When the daughters emotionally
attached to the father are satisfied in claiming only
Rs.3,00,000/- from each of the brothers as it is the last wish of
their father as stated by one Mr.Biradar who is instrumental in
getting the signatures of the appellants and respondents on a
piece of paper way back on 22.06.1993, the respondents are
getting pleasure in denying the rights of the appellants even on
such amount, even after admitting that the appellants are their
- 50 -
sisters, forget about granting equal share in the properties left
behind by their father.
63. The Hon'ble Apex Court in Vineeta Sharma (supra)
observed and rightly so, that 'once a daughter, always be a
daughter'. Bringing change in the legislation cannot bring change
in the mindset of the citizens. It is a classic example of such
mindset even after lapse of 71 long years after adopting
Constitution of India and recognition of the rights of the
daughter. The conduct of the respondents especially the cross-
objector is an example of such mindset to deny the right of the
daughters.
64. The cause title to the appeal discloses that the
appellants are aged 60 and 55 years respectively, whereas the
cross-objector is aged 53 years during 2012. They are enjoying
the properties of their father since his demise and fighting the
litigation endlessly, but not considering paying of the amount
due to the appellants graciously and to restore the relationship
which is priceless. Therefore, I am of the opinion that the appeal
preferred by the appellants is to be allowed and the cross-
- 51 -
objection filed by the cross-objector/respondent No.1 is to be
dismissed with cost.
65. In view of the above discussion, I answer the above
point in the "Affirmative in the appeal and in the negative in the
cross objection" and proceed to pass the following:
ORDER
The appeal is allowed.
The impugned order passed by the learned Principal
District and Sessions Judge, Dharwad in A.S.No.6/2010
modifying the interest at 6% p.a. is set aside and the award
dated 29.12.2009 passed by the learned arbitrator is confirmed.
The cross-objection is dismissed with cost of Rs.50,000/-.
Sd/-
JUDGE
MBS/-
