Karnataka High Court
Shri M P Ravishankar vs Shri T Shivaprakash on 8 July, 2022
Bench: P.S.Dinesh Kumar, C.M. Poonacha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.8582 OF 2022 (GM-RES)
C/W
WRIT PETITION NO.8604 OF 2022 (GM-RES)
IN W.P.NO.8582/2022
BETWEEN:
1. SHRI M P RAVISHANKAR
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE M PUTTASWAMY
RESIDING A/T NO F-14
SEWAGE FARM MAIN ROAD
H R GARDEN, VIDYARANYAPURAM
MYSORE 570008
2. SRI G H HUCHAPPA
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE HUCHEGOWDA
AGED ABOUT 74 YEARS
NO 162, 2ND MAIN
GOKULAM, 2ND STAGE
VV MOHALLA
MYSORE 570002
3. SHRI N PRABHAKAR RAO
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE NARAYAN RAO
AGED ABOUT 69 YEARS
2
RESIDING AT NO 14
YATINDARA NILAYA
3RD CROSS
SHANAKRPURAM
BANGLAORE 560004
...PETITIONERS
(BY SRI: L.M CHIDANANDAYYA, ADVOCATE)
AND
1. SHRI T SHIVAPRAKASH
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE THIMMEGOWDA
AGED 54 YEARS
R/AT NO 1278 & 1279
GAGANCHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPUNAGAR
MYSORE 570023
2. SMT M.P. SANDHAYARANI
PARTNER, M/s AISHWARYA DEVELOPERS
W/O T SHIVAPRAKASH
AGED 45 YEARS
R/AT NO 1278 AND 1279
GAGANAGCHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPUNAGARA
MYSORE 570023
3. M/s AISHWARYA DEVELOPERS
REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT 1278 AND 1279
GAGANACHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPU NAGAR
MYSORE 570023
4. M/s AKHILA KARNATAKA
BRAHMINS WELFARE SOCIETY
NO 1513, 1ST FLOOR, 7TH MAIN
RPC LAYOUT, HAMPINAGARA
BENGALURU-560040
ALSO AT 175/1, NEW NO K 22/1
RAMAVILASA ROAD, K R MOHALAL
3
MYSORE 570024
REP BY ITS GENERAL SECRETARY
MR B V MANJUANTH
5. SRI B V MANJUNATH
PARTNER, M/s AISHWARYA DEVELOPERS
ALSO GENERAL SECRETARY
AKHILA KARANTAKA
BRAHMINS WELFARE SOCIETY
S/O VISVESHVARAIAH
AGED ABOUT 69 YEARS
R/AT NO 175
4TH MAIN, LIC COLONY
SRIRAMAPURA
MYSORE 570008
6. SOLE ARBITRATOR
AT ARBITRATION AND CONCILIATION CENTRE
BENGALURU (DOMESTIC AND INTERNATIONAL)
KHANIJA BHAVAN
BANGALORE 560001
...RESPONDENTS
(BY SRI: P.D.SURANA, ADVOCATE FOR R1 TO R3,
SRI. C.R.MAHENDRA GOWDA, ADVOCATE R4 TO R5;
V/O DATED 25.5.22 NOTICE TO R6 D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
AN ORDER, DIRECTION OR WRIT IN THE NATURE OF
CERTIORARI, QUASHING THE COMPROMISE AWARD
ANNEXURE-A DATED 18/03/2019 IN A.C.NO.71/2018 BY THE
ARBITRAL TRIBUNAL CONSISTING OF SOLE ARBITRATOR AND
ETC.,
IN W.P.NO.8604/2022
BETWEEN:
1. SHRI M P RAVISHANKAR
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE M PUTTASWAMY
4
RESIDING A/T NO F-14
SEWAGE FARM MAIN ROAD
H R GARDEN, VIDYARANYAPURAM
MYSORE 570008
2. SRI G H HUCHAPPA
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE HUCHEGOWDA
AGED ABOUT 74 YEARS
NO 162, 2ND MAIN
GOKULAM, 2ND STAGE
VV MOHALLA
MYSORE 570002
3. SHRI N PRABHAKAR RAO
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE NARAYAN RAO
AGED ABOUT 69 YEARS
RESIDING AT NO 14
YATINDARA NILAYA
3RD CROSS
SHANAKRPURAM
BANGLAORE 560004
...PETITIONERS
(BY SRI: L.M CHIDANANDAYYA, ADVOCATE)
AND
1. SHRI T SHIVAPRAKASH
PARTNER, M/s AISHWARYA DEVELOPERS
S/O LATE THIMMEGOWDA
AGED ABOUT 54 YEARS
R/AT NO 1278 & 1279
GAGANCHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPUNAGAR
MYSORE 570023
2. SMT M.P. SANDHAYARANI
PARTNER, M/s AISHWARYA DEVELOPERS
W/O T SHIVAPRAKASH
AGED 45 YEARS
5
R/AT NO 1278 AND 1279
GAGANAGCHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPUNAGARA
MYSORE 570023
3. M/s AISHWARYA DEVELOPERS
REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT 1278 AND 1279
GAGANACHUMBI DOUBLE ROAD
E AND F BLOCK, KUVEMPU NAGAR
MYSORE 570023
4. M/s AKHILA KARNATAKA
BRAHMINS WELFARE SOCIETY
NO 1513, 1ST FLOOR, 7TH MAIN
RPC LAYOUT, HAMPINAGARA
BENGALURU-560040
ALSO AT 175/1, NEW NO K 22/1
RAMAVILASA ROAD, K R MOHALAL
MYSORE 570024
REP BY ITS GENERAL SECRETARY
MR B V MANJUANTH
5. SRI B V MANJUNATH
PARTNER, M/s AISHWARYA DEVELOPERS
ALSO GENERAL SECRETARY
AKHILA KARANTAKA
BRAHMINS WELFARE SOCIETY
S/O VISVESHVARAIAH
AGED ABOUT 69 YEARS
R/AT NO 175, 4TH MAIN,
LIC COLONY, SRIRAMAPURA
MYSORE 570008
6. SOLE ARBITRATOR
AT ARBITRATION AND CONCILIATION CENTRE
BENGALURU (DOMESTIC AND INTERNATIONAL)
KHANIJA BHAVAN
BANGALORE 560001
...RESPONDENTS
(BY SRI: P.D.SURANA, ADVOCATE FOR R1 TO R3,
SRI. C.R.MAHENDRA GOWDA, ADVOCATE R4 TO R5;
V/O DATED 25.5.22 NOTICE TO R6 D/W)
6
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
AN ORDER, DIRECTION OR WRIT IN THE NATURE OF
CERETIORARI, QUASHING THE COMPROMISE AWARD
ANNEXURE-A DATED 09/01/2019 IN A.C.NO.70/2018 BY THE
ARBITRAL TRIBUNAL CONSISTING OF SOLE ARBITRATOR AND
ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.07.2022, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, POONACHA, J., MADE
THE FOLLOWING:
ORDER
Writ Petition No.8582/2022 is filed seeking to quash
the Compromise Award dated 18.03.2019 passed in
AC.No.71/2018. Writ Petition No.8604/2022 is filed
seeking to quash the Compromise Award dated
09.01.2019 passed in AC.No.70/2018. Since the
Petitioners were not parties to the Arbitral Awards dated
09.01.2019 and 18.03.2019, IA.I/2022 is filed seeking
leave of this Court to permit the Petitioners to challenge
the said Arbitral Awards.
2. The Petitioners and Respondents in both the
Writ Petitions are same. Hence, both the Writ Petitions are
considered together and this common order is passed.
3. Brief facts of the case are as under:
The Petitioners and Respondent Nos.1, 2 and 5 are
the Partners of the Respondent No.3 - Firm. The Firm is
constituted by the Deed of Partnership dated 16.06.2021
and re-constituted vide Deeds dated 01.04.2006 and
01.02.2007. It is the case of the Petitioners that the Firm
had entered into two Agreements dated 01.12.2006
(Project 2 Mysuru) and dated 24.12.2012 (Project 3
Mysuru) for Land Development with the Respondent No.4
- Society to procure land, form a layout, develop
infrastructure in all respects and hand it over to the
Respondent No.4 - Society. Due to various disputes that
arose in the course of implementation of the aforesaid
agreements, an Arbitral Tribunal was constituted and
arbitration proceedings were commenced between the
Firm and the Respondent No.4 - Society in AC.No.71/2018
and AC No.70/2018. Both the parties filed their respective
pleadings before the Arbitral Tribunal. Thereafter, the
parties have filed Compromise Petitions and accordingly,
the settlement Awards dated 18.03.2019 in AC
No.71/2018 and 09.01.2019 in AC No.70/2018 were
passed and the Arbitration proceedings were disposed off.
To execute the settlement Award dated 18.03.2019 in
AC.No.71/2018, the Respondent No.4 - Society filed
Commercial Execution Case No.2/2021 and to execute the
settlement Award dated 09.01.2019 passed in
AC.No.70/2018, Commercial Execution Case No.3/2021
was filed in the Court of the Principal District and Sessions
Judge, Mysuru.
4. It is the further case of the Petitioners that
they are arrayed as parties in the execution proceedings
for the first time and did not have the knowledge of the
Arbitral proceedings, hence, have filed the present Writ
Petition for quashing the Awards dated 18.03.2019 and
09.01.2019 passed by the Arbitral Tribunal.
5. The Respondents Nos.4 and 5 have filed their
statement of objections and opposed the relief sought in
the present Writ Petitions.
6. The learned Counsel for the Petitioners in
furtherance of the reliefs sought in these Writ Petitions has
put forth following contentions:
(a) the Petitioners were not parties to the Arbitral
proceedings and the Firm was represented by the
Respondent No.1 in the Arbitral proceedings and the
Petitioners were not aware of the same including the
Compromise Petition and the Awards passed by the
Arbitral Tribunal;
(b) the Respondent No.1 by representing the Firm
in the Arbitral proceedings without the knowledge and
consent of the Petitioners has acted beyond the scope of
the authority and the implied authority vested in every
Partner as contemplated under Section 19 of the
Partnership Act, 1921. Therefore, the Petitioners are not
bound by the acts done by the Respondent No.1 on behalf
of the Firm;
(c) the Respondents have played fraud and
behind the back of the Petitioners, dealt with the property
of the Firm;
(d) the Respondent No.5 who is the Partner of the
Firm also represented the Respondent No.4 - Society as its
General Secretary. This is the other aspect of the fraud
that was committed; and
(e) the Petitioners are entitled to maintain the
present Writ Petition in view of the fraud committed by the
Respondents.
7. In support of his contentions, the learned
Counsel for the Petitioners relied upon following decisions;
i) Deep Industries Limited v. Oil and Natural
Gas Corporation Limited and another1
ii) Punjab State Power Corporation Limited
v. Emta Coal Limited and another2
iii) Chainraj Ramchand v.
V.S.Narayanaswamy
(2020) 15 SCC 706
(2020) 17 SCC 93
iv) Tilokram Ghosh and others v. Smt.Gita
Rani Sadhukhan and others4
v) Bali Nagwanshi v. State of Chhattisgarh
and others5
8. Per contra, learned Counsel for the
Respondents has vehemently contended that;
(a) these Writ Petitions are not maintainable to
challenge the Arbitral Awards;
(b) the Petitioners in collusion with the Respondent
Nos.1 and 2 have filed these Writ Petitions to escape their
liability as per the terms of the Awards passed by the
Arbitral Tribunal;
(c) the Petitioner No.1 is brother-in-law of the
Respondent No.1 and brother of the Respondent No.2 and
hence, they were well aware of all the proceedings before
the Arbitral Tribunal;
(d) there has been an inordinate delay in filing
these Writ Petitions, inasmuch as the Compromise
(1982) 95 LW 278 (Mad) (DB)
AIR 1989 Calcutta 254
W.A.No.81/2022 & cw matters, DD 28.06.2022
Petitions were filed on 09.01.2019 and 18.03.2019, on
which dates the Arbitration proceedings were also disposed
off. Thus, there is an inordinate delay of more than three
years in filing these Writ Petitions;
(e) various subsequent events have transpired
including execution of various Power of Attorneys by the
Petitioners as well as commercial transactions and in view
of the same, these Writ Petitions are liable to be dismissed
for want of bona fide conduct in the Writ Petitioners; and
(f) disputed questions of fact are involved and the
same cannot be adjudicated by way of Writ Petitions.
9. We have heard the submissions made by the
learned Counsel for the Petitioners and Respondent Nos.4
and 5 and perused the material available on record.
10. Having regard to the contentions put forth by
the learned Counsel for the parties, the question that falls
for our consideration is, "Whether the Compromise Award
dated 09.01.20109 passed in AC No.70/2018 and
Compromise Award dated 18.03.2019 passed in
AC.No.71/2018 by the Arbitral Tribunal are liable to be
interfered with by this Court in exercise of its extraordinary
jurisdiction contained under Articles 226 and 227 of the
Constitution of India?"
11. The learned Counsel for the Petitioners
vehemently contended that they are entitled to file and
prosecute these Writ Petitions, inasmuch as fraud has been
played by the Respondents and ex facie the Respondent
No.1 who had represented the Firm before the Arbitral
Tribunal has acted beyond the scope of authority and dealt
with the valuable assets of the Firm including the movable
property by entering into the Compromise Petitions dated
18.03.2019 and 09.01.2019.
12. Per contra, the learned Counsel for the
Respondents refers to various factual aspects pertaining to
the transaction between the parties and seeks for
dismissal of the Writ Petitions.
13. It is clear from the rival contentions of the
parties that various disputed questions of fact are involved
in these Writ Petitions. While Petitioners seek to impugne
the actions of the Respondent No.1 representing the Firm
before the Arbitral Tribunal, the Respondent Nos.4 and 5
specifically contend that although the Respondent No.1
represented the Firm before the Arbitral Tribunal, the
Petitioners were in complete knowledge of all aspects of
the proceedings before the Arbitral Tribunal.
14. It is also relevant to note that to execute the
Arbitral Awards dated 09.01.2019 and 18.03.2019,
Respondent No.4 has instituted execution proceedings
which are pending consideration before the Principal
District and Sessions Court at Mysuru.
15. It is clear that there exists disputes between
the Partners of the Firm. It is also relevant to note that Re-
constitution Deeds dated 01.04.2006 and 01.02.2007
contain an Arbitration clause, whereunder, all disputes
pertaining to partnership relating to the business and other
affairs of the Firm is required to be resolved by taking
recourse to Arbitration in accordance with the provisions of
the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as the 'Act' for short). There is no material on
record which may demonstrate that any party has
instituted any such arbitration proceedings.
16. Having regard to the fact that the execution
proceedings have been initiated in Commercial Execution
Case Nos.2/2021 and 3/2021 by the Respondent No.4 in
which the Firm and all its Partners are arrayed as parties,
any defences that are available to be taken by the Firm or
its Partners vis-à-vis Respondent No.4 - Society can be
effectively adjudicated in the said proceedings.
17. In the case of Deep Industries1, the Apex
Court was considering as to whether an Award made under
Section 34 of the Act could be interfered with in Writ
jurisdiction under Article 227 of the Constitution of India.
Therefore, this ruling will not aid the case of the
Petitioners.
18. In the case of Punjab State Power
Corporation Limited2, the Apex Court was considering
the case as to whether a writ petition could be filed being
aggrieved by an application filed under Section 16 of the
Act. Hence, the said decision is wholly inapplicable to the
facts of the present case.
19. In the case of Chainraj Ramchand3 the
Division Bench of the Madras High Court was dealing with
an appeal filed against a Compromise Award passed in a
Civil Suit. Therefore, the said judgment will not come to
the aid of the Petitioners.
20. In the case of Tilokram Ghosh4 the Division
Bench of the Calcutta High Court was dealing with an
appeal arising out of the arbitral proceedings instituted by
the Partners of the Firm by taking recourse to the
arbitration clause contained in the Deed of Partnership.
Hence, the said judgment will not aid the case of the
Petitioners.
21. In the case of Bali Nagwanshi5 the Division
Bench of Chhattisgarh High Court was considering a case
where for a special railway project compensation was
awarded and various awards were passed by the Additional
Collector/competent authority. Subsequently, the
Collector noticing discrepancies, ordered an enquiry by a
Committee, which came to the conclusion that the
determination of compensation by the competent authority
is erroneous and the railway officials were involved in the
conspiracy. It is in challenge to the said proceedings that
various Writ Petitions have been disposed of by a learned
Single Judge of the High Court and the Division Bench had
rendered the said ruling in the said factual backdrop. The
said judgment is wholly inapplicable to the facts of the
present case.
22. It is clear that there exists disputes amongst
the Partners of the Firm and various allegations are put
forth which are effectively met with counter allegations.
The disputed questions of fact which arise for consideration
can be suitably and effectively adjudicated in other
remedies that are available to the respective parties as
indicated above.
23. In the circumstances, we are of the considered
opinion that these Writ Petitions do not merit consideration
in exercise of our extraordinary discretionary jurisdiction
contained under Article 226 and 227 of the Constitution of
India.
24. Accordingly, Writ Petitions fail and are
dismissed.
Pending IA/s, if any, stand disposed off in view of the
disposal of the main Petitions.
No costs.
sd/-
JUDGE
sd/-
JUDGE
nd
