)S.Jegatheesan vs )S.Vaikundarajan
2021 Latest Caselaw 9215 Mad

                                                        1

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 08.04.2021
                                          (Reserved on 26.03.2021)

                                                     CORAM :

                           THE HONOURABLE MRS.JUSTICE J.NISHA BANU

                                     CRP(MD)Nos.1797 to 1799 of 2019
                                                   and
                                     connected miscellaneous petitions

                      1)S.Jegatheesan
                      2)J.Renuka
                      3)J.Muthurajan
                      4)J.Chenthilrajan
                      5)J.Subburajan         ... Petitioners in CRP.1797 & 1798/19

                      1)VVM Education Trust,
                      Through its Managing Trustee,
                      S.Jegatheesan
                      2)S.Jegatheesan
                      3)J.Muthurajan
                      4)J.Chenthilrajan
                      5)J.Subburajan            ... Petitioners in CRP.1799/2019

                                                       vs.

                      1)S.Vaikundarajan
                      2)V.Chandra Boopathy
                      3)V.Subramanian
                      4)V.Velmurugan
                      5)Karthiyayini
                      6)Smt.V.Subasaranya                   ... Respondents in all CRPs

Petitions filed under Article 227 of the Constitution of India, to strike off the proceedings in E.P.Nos.61, 62 and 63 of 2019 in ACP.No.1 of 2019 on the file of the learned Principal District Court, Tirunelveli.

http://www.judis.nic.in

For P1 to 3 & P5 : Mr.V.Prakash, Senior Counsel Mr.Sathish Parasaran, Senior Counsel Mr.Issac Mohanlal, Senior Counsel for Mr.R.Anand For P4 : Mr.A.V.Arun For R1 : Mr.V.Lakshmi Narayanan, Senior Counsel for Mr.K.Aravinth Bharathi For R2 : Mr.Murali Krishnan, Senior Counsel for Mr.M.Maharaja For R3 & R5 : Mr.J.Kingsly Solomon For R4 : Mr.V.Meenakshi Sundaram, Senior Counsel for Mr.N.Ga.Nataraj For R6 : Mr.S.Elambharathi

COMMON ORDER

CRP.1797/19 has been filed to strike of the proceedings in

E.P.No.61/2019 in ACP.No.1/2019 on the file of the learned

Principal District Judge, Tirunelveli.

CRP.1798/19 has been filed to strike of the proceedings in

E.P.No.62/2019 in ACP.No.1/2019 on the file of the learned

Principal District Judge, Tirunelveli.

CRP.1799/2019 has been filed to strike off the

proceedings in E.P.No.63 of 2019 in ACP.1/2009 on the file of

the learned Principal District Judge, Tirunelveli.

2.Brief facts of the case are as follows:-

The 1st petitioner and the 1st respondent are brothers and

the petitioners 2 to 5 are the wife and children of the 1st http://www.judis.nic.in

petitioner and the respondents 2 to 5 are the wife and children

of the 1st respondent. Earlier, there was a dispute which

existed between three brothers namely, the 1st petitioner and

1st respondent and their younger brother Thiru.S.Chandresan

which led to arbitration proceedings resulting in a compromise

award, where arbitration proceedings were presided over by

Mr.Justice Shivraj Patil(Retired Judge of Supreme Court of

India). In terms of the settlement, an award was passed on

13.07.2011. During the arbitration proceedings, the properties

were divided into three shares namely, A, B and C schedules.

B schedule was said to have been taken by Mr.Chandresan and

A and C schedule properties were jointly managed by the 1st

petitioner/Mr.Jegatheesan and family and the 1st

respondent/Mr.Vaikundarajan and his family. The primary

business of the family was separation of minerals from the raw

beach sand. The family had several leases in the districts of

Thoothukudi, Tirunelveli, Kanyakumari and in the State of

Andhra Pradesh under the name and style of M/s.V.V.Minerals

and the 1st petitioner herein was having financial control overall

the firms and companies. They had been doing number of

businesses and the family members were also inducted into http://www.judis.nic.in

the businesses subsequently. It is stated that the 1 st

respondent in the present petition has been acting as the

Managing Director and Managing Partner of the companies and

firms respectively. Apart from the flag ship, Vetrivel Minerals,

the respondents also contributing their mite in V.V.Minerals

(100% Export Oriented Unit), Edison Paints and Chemicals,

V.V.Marine Products, Vijay Cements and Vetrivel Marketing and

Warehousing and Warehousing entities. After inducting the

family members in the businesses, misunderstanding arose

and the brothers 1st petitioner and the 1st respondent decided

for partition by taking the aid of their step brother

Mr.S.Ganesan and executed a Kaithadi baga pirivinai pathiram

dated 31.12.2018 (hereinafter referred to as KBPP) and the

properties were divided into A and C schedule properties. The

understanding was that the present 1st petitioner

S.Jegatheesan would divide the properties and the 1st

respondent herein would choose among the two. Accordingly,

the 1st respondent chose the C schedule properties. This was

as per the practice in vogue in the business community of

Tirunelveli. Thus, KBPP was the result of the mediation by the

step brother Mr.S.Ganesan. Therefore, admittedly the http://www.judis.nic.in

properties were divided by the 1st petitioner herein. After the

above partition, the petitioners sought to resile from the

partition stating that the division is unequal and the same is

vitiated by undue influence, coercion and misrepresentation.

The petitioners also made attack against Mr.S.Ganesan who is

the step brother of the 1st petitioner and the 1st respondent

who assisted the partition. The petitioners and his family

members initiated Arbitration proceedings before the High

Court under Section 11 of the Arbitration and Conciliation Act

in OP.Nos.372 to 374/2019, 380 to 382/2019 and 384/2019,

and O.A.No.543/2019 under Section 9 of the Arbitration and

Conciliation Act, which were rejected by an order of this Court

dated 06.09.2019. In O.A.No.543/19 filed under Section 9 of

the Arbitration and Conciliation Act, the same objections raised

in the present CRPs were raised by the petitioners herein which

was also dismissed.

3.Aggrieved by the order passed by this Court dated

06.09.2019 dismissing all the above OPs, the petitioners in the

present revision petitions approached the Hon'ble Supreme

Court in SLP(Civil)Nos.25250 of 2019 to 25256 of 2019 and http://www.judis.nic.in

after hearing of the matter, the Supreme Court has dismissed

the SLPs on 21.10.2019 at the diary stage itself. All the issues

raised in the petitions have been once again raised before the

Supreme Court and the SLPs were dismissed. Thereafter,

review applications have been filed before the Supreme Court

with the condone delay petition and the delay was condoned

and thereafter, the review applications in (C)Nos.1275 and

1281/2020 were dismissed on 09.06.2020. In fine, the orders

passed by this Court in OP.Nos.372 to 374/2019, 380 to

382/2019 and 384/2019 and O.A.No.543/2019 dated

06.09.2019 became final. To implement the partition deed

namely, KBPP, the respondents filed E.P.Nos.61 to 63 of 2019

and it is against the order of notice issued in the above E.Ps,

the present revision petitions have been filed.

4.When the revision petitions were taken up for hearing

without going into the merits of the case, considering that the

1st petitioner and the 1st respondent were brothers, with the

consent of all the parties, this Court appointed Mr.Justice

Shivraj Patil(Retired Judge of the Hon'ble Supreme Court) and

Mr.Justice K.K.Kannan(Retired Judge of this Court) as http://www.judis.nic.in

Mediators, to mediate the issue between the parties and

granted an order of interim stay and since mediation was

under progress, this Court made the interim order absolute.

Various interim applications have been filed and the the

respondents herein has filed CMP.No.1988/2021 for

appointment of a Receiver alleging that the petitioners are

deliberately indulging in the act of waste, alienation and

dismantling of the machineries found in the C schedule

properties.

5.When the matter came up before me, since the

petitioners and the respondents allegated against each others

as to the act of waste, removal of machineries etc., without

going into the merits, this Court suggested for appointment of

Receiver to look into the affairs of the A schedule properties

allotted to the petitioners which are in the control of the

respondents and C schedule properties allotted to the

respondents which are in the control of the petitioners till the

completion of mediation, for which, the respondents agreed,

and the petitioners did not agree and questioned the

maintainability of the appointment of Receiver and therefore, http://www.judis.nic.in

this Court had no other go except to hear the entire matter on

merits.

6.As stated earlier, numerous applications have been filed

raising the grounds which are raised before the High Court and

the Supreme Court which has already been rejected. The

learned Senior Counsel Mr.V.Prakash would state that the

conciliation award dated 02.01.2019 is vitiated by fraud and it

is a fabricated document. He would argue that the

appointment of Receiver cannot be made, as the same is

contrary to the law laid down by the Kerala High Court in

K.Sandhya vs. K.K.Sivakumar and Krishnaswamy vs.

Thangavelu reported in AIR 1955 Madras 430. He would

also state that the judgment of Justice Pushpa Sathyanarayana

is per incuriam and therefore, it cannot be relied upon. He

would further state that the partition document is inadmissible

in evidence as it is unstamped and cannot be executed. The

settlement agreement namely, KBPP is not a decree and

therefore EP is not maintainable. The mode of appointment

contemplated under Sections 61 to 74 namely, Part III of

Arbitration and Conciliation Act, 1966 have not been followed http://www.judis.nic.in

and therefore, the settlement agreement cannot be executed

and many other arguments had been placed by the learned

Senior Counsel Mr.V.Prakash which has been countered by

Mr.Lakshmi Narayanan, learned Senior counsel for the

respondents. The learned Senior Counsel Mr.Lakshmi

Narayanan would point out before this Court that all the issues

raised by the petitioners have been raised before the High

Court as well as the Supreme Court and would state that the

petitioners could not re-litigate the matter. He would further

state that the judgment of Justice Pushpa Sathyanarayana is

not only under Section 11 of the Arbitration and Conciliation

Act, but also under Section 9 of the Arbitration and Conciliation

Act which is a determining factor. He would further state that

even assuming if Justice Pushpa Sathyanarayana's order is per

incuriam, it has no precedential value, but it is binding on the

parties.

7.Mr.V.Prakash, the learned Senior Counsel would state

that the Supreme Court has given liberty by observing that the

petitioners can work out their remedy in accordance with law

which would entitle the petitioners to file these revision

petitions.

http://www.judis.nic.in

8.Therefore, without going into the arguments and

counter arguments made by the learned Senior Counsel for the

petitioners as well as the respondents which has been already

argued before the High Court and the Supreme Court, the only

issue which the Court has to consider is whether the

petitioners fall under the scope of working ''out the remedy in

accordance with law'' as observed by the Supreme Court while

dismissing the SLP(Civil)Nos.25250 of 2019 to 25256 of 2019

in SLP(civil) Diary Nos.36699 of 2019. It will be useful to

extract paragraphs 21 to 23 of the order of Justice Pushpa

Sathyanarayana passed in OP.Nos.372 to 374/2019, 380 to

382/2019 and 384/2019 and O.A.No.543/2019:-

''21. From the above discussions, it is clear that there is no such dispute between the parties. If there is no dispute, the other questions will not arise. If there is a dispute, it is only with respect to the execution of the Kaithadi Partition. Admittedly, both the parties have consented to the Partition Deed. The document also satisfies all the requirements of a conciliation or even a partition. Therefore, what is now sought to be agitated is only the misrepresentation by the first respondent and the inequality of partition effected in the said document.

22. The only allegation is that the first respondent misrepresented and that the petitioners did not have time to verify the entire details of the Partition Deed. It is also not the case of the petitioners that they requested time to go through the Partition Deed and http://www.judis.nic.in that they were refused the same. Non availability of

time and the length of the document would not constitute fraud or misrepresentation. Fraud has to be pleaded and proved. It must be proved that the first respondent made false representation to his knowledge. The level of proof required is much higher in these cases, as a mere ambiguous statement per se cannot make the allegation of the misrepresentation true. Unless knowledge is attributed to the person making misrepresentation, it is difficult to prove the same.

23. The next question that arises is whether the said Partition Deed is an award and if so, whether it requires registration, after affixing required stamp duty. If it is deemed to be a Partition Deed, which came to be executed by misrepresentation or undue influence, then the remedy for the petitioners is to go before the Civil Court. The Kaithadi Partition is the outcome of all the issues being settled in the family. Though the counsels could not explain the meaning of ''Kaithadi'', it only indicates that the partition is as per the custom prevalent in the trading families of the area/community. Having admitted the execution, but pleaded undue influence and misrepresentation, the document is only voidable, which has to be set aside in a manner known to law before the civil court after trial. If it is an outcome of conciliation and that it is an award, whether it requires registration or stamp duty payable can be agitated in a petition filed under Section 34 of the A & C Act. Therefore, by no stretch of imagination, the petitioners can ask for reference to Arbitral Tribunal, when they are seeking to set aside the document, admittedly, signed by both the parties. Unless and until the document is set aside in the manner known to law, they cannot attack the validity or otherwise of the same in the present proceedings.

24. For all these reasons, all these petitions are dismissed. Consequently, O.A.No.543 of 2019 is also dismissed. The parties shall bear their own costs.''

9.In view of the above findings, the learned Judge has

stated that having admitted the execution, but pleaded undue

influence and misrepresentation, the document is only voidable

and if the document is voidable, it has to be set aside in the http://www.judis.nic.in

manner known to law before the civil court after trial and if it

is an outcome of the conciliation, then it has to be treated as

award and whether it requires registration of stamp duty or not

can be agitated in a petition under Section 34 of the

Arbitration and Conciliation Act and therefore, this Court had

rejected all the applications, by which, the KBPP was held to be

valid unless and until it is set aside in the manner known to

law, against which appeal has been filed before the Supreme

Court. The Supreme Court while dismissing the appeal has

observed that the parties are at liberty to work out their

remedy in accordance with law which means that though the

petitioners have filed appeal against the order of Justice Pusha

Sathyanarayana, the Supreme Court has given liberty of either

filing a civil suit to set aside the KBPP in the manner known to

law or it if it is considered as a conciliation award, to question

the same under Section 34 of the Arbitration and Conciliation

Act and therefore the argument of the learned Senior Counsel

that liberty has been given which enabled them to file all these

petitions before this Court is the faulty understanding of the

observations of the Supreme Court knowingly or unknowingly.

If knowingly, it is a clear abuse of process of the Court. http://www.judis.nic.in

10.Admittedly, through the judgment of the High Court

and the Supreme Court, the KBPP is considered to be a valid

document unless it is challenged in the manner known to law.

Therefore, I need not go into any of the arguments advanced

by the petitioners' counsel and the respondents' counsel.

Everything has reached its finality. The revision petitions have

been filed against the notice issued by the Executing Court. At

the risk of repetition, even assuming as stated by the learned

Senior Counsel for the revision petitioners, the order of Justice

Pushpa Sathyanarayana is per incuriam, it is still binding on

the parties except it cannot be cited as a precedent in some

other proceeding. The petitioners have not come out with

sufficient reason for not agitating the issue before the trial

Court under Order 21 Rule 23(2) of CPC read with Rules 143

and 146 of Civil Rules of Practice read with Section 47 of CPC

to maintain the CRPs. There is no violation committed by the

EP Court under Order 21 Rule 17 read with Rule 11(2) of CPC

and Rule 142 of Civil Rules of Practice and therefore, for the

above reasons also, the CRPs are not maintainable. In view of

Order 21 of CPC read with Section 47 CPC being a complete

code by itself, capable of addressing and deciding all the issues http://www.judis.nic.in

raised by the civil revision petitioners including that of the

maintainability of the execution petition, the present exercise

under Article 227 of the Constitution of India is barred. There

is no any order passed by the Executing Court to challenge the

same before this Court. As held by the Supreme Court in

Virudhunagar Hindu Nadargal Dharm Paribalana Sabai

and others vs. Tuticorin Educational Society and others

reported in (2019) 5 SCC 938, when an alternative remedy

is available under the Code of Civil Procedure, 1908, a revision

under Article 227 of the Constitution is not maintainable. The

revision petitioners cannot convert this Court into the trial

Court and seek to let in evidence. The petitioners cannot let in

any new evidence and cannot raise any new grounds before

this Court.

11.The learned counsel for the respondents would seek

for appointment of Receiver alleging that the petitioners are

encumbering the properties removing the machineries etc., for

which, the learned Senior Counsel Mr.V.Sathish Parasaran

vehemently opposed for the appointment of Receiver.

Admittedly, the KBPP is considered to be a valid document http://www.judis.nic.in

unless it is challenged in the manner known to law. He would

state that the judgment of Justice Pushpa Sathyanarayana is

not a conclusive decision. He would further state that though

the respondents have stated that the revision petitioners are

removing the machineries and goods from the companies, but

had not given the precise details of the amount and

machineries removed etc. He would state that a Receiver is

sought even for the companies which are artificial legal entities

and therefore, the remedy open to the respondents is only by

way of oppression and mismanagement and not by way of

execution. The learned Senior Counsel Mr.Sathish Parasaran

would further state that the respondents ought to have moved

the NCLT if the materials and stocks are moved from V.V

Marine. Mr.Isaac Mohanlal, the learned Senior Counsel arguing

for the petitioners would state that the appointment of

Receiver will hinder the process of mediation. Mr.A.V.Arun

adopted the arguments of Mr.V.Prakash. He would state the

procedure followed under section 31 will have to be read with

Section 74 as the award does not comply with the provisions of

Section 31, and therefore, the conciliation award is not a

decree and hence cannot be executed, as no stamps have been http://www.judis.nic.in

affixed under schedule I Class 12 of the Indian Stamp Act by

which it has already been stated if it is so the petitioners can

challenge the same only under section 13 of the Arbitration

and Conciliation Act. Thus, all the counsels who appeared for

the petitioners would reiterate the same arguments and the

same grounds which was raised before the High Court and the

Supreme Court and by Mr.V.Prakash.

12.For all the reasons stated above, particularly,

paragraph 10, the present CRPs and all the petitions filed by

the petitioners are not maintainable. This Court while

admitting the revisions taking into consideration that the

petitioners and the respondents are brothers thought it fit that

if the matter is referred to mediation, there could be some

amicable settlement and accordingly, the matter was referred

to mediation and Mr.Justice Shivraj Patil(Retired Judge of the

Hon'ble Supreme Court) and Mr.Justice K.K.Kannan(Retired

Judge of this Court) were appointed as mediators and it is

stated that the mediation is under process.

http://www.judis.nic.in

13.While dismissing all the civil revision petitions and the

petitions filed by the petitioners, this Court also keeping in

mind that there is a fundamental tie that binds the brothers

urged for mediation. Especially, in these unpredictable times,

it is imperative that we put aside differences and allegations,

and think with a sound mind whether these ties that binds are

mere formalities or have solid convictions. Yes, things do sour

in any relationship and brotherhood is probably the most

resilient of all. As any word said poorly, or action that hurt is

immediately healed by the love of a brotherly solace, shoulder

to support and hand to hold firm on to and therefore it is

always good to look back and retrospect on how one can pick

up the threads of their relationship and start weaving it

together with the intent as brothers and not strangers unto

each other. The cracks that have divided the brother could be

weaved as a tangible design in the tapestry of a new

relationship. If the brothers do not reconcile to mitigate but

arbitrate, the bridges become gaps and next generation after

the other are certain to know of each other in either bitterness

or strange acquaintances if any. We as a country are known to

have traditional roots, there was a reason for joint families – to http://www.judis.nic.in

keep all siblings together under one purpose to care and

nurture each and therefore, this Court feels that the mediation

has to be continued for an amicable settlement between the

parties.

14.In my opinion, to facilitate the mediation process, the

appointment of Receiver is very much necessary. If allegations

mount that both parties are trying to encumber the properties

which had already been divided by KBPP, it would only add

strain in the relationship of the 1st petitioner and the 1st

respondent and therefore, the mediation would only be an

empty formality. This Court is very conscious that the

respondents alone have asked for appointment of Receiver for

C schedule properties alone, but considering the allegations

and counter allegations in the course of arguments, without

commenting on the arguments of the petitioners' counsel and

the respondents' counsel, this Court deems fit that the

Receiver be appointed to look into the affairs in the A schedule

properties which are allotted to the petitioners in possession of

the respondents and C schedule properties which are allotted

to the respondents and in possession of the petitioners. http://www.judis.nic.in

15.(i)Therefore, in view of the discussions above, all the

Civil Revision Petitions and all the Civil Miscellaneous Petitions

filed by the petitioners are dismissed.

(ii)The mediation process will continue.

(iii)Mrs.Justice DR.S.VIMALA(Retired Judge of this Court)

is appointed as Receiver to look into the overall administration

of the properties found in the A schedule which is in possession

of the respondents and C schedule which is in possession of

the petitioners.

(iv)For the proper administration of the companies and

the firms, the Receiver can take the aid of the Government

machineries wherever necessary.

(v)Any expenses occurring in the process of the

administration of the companies and firms will be borne by the

parties.

(vi)Mr.Siddharthan and Mr.P.Samuel Gunasingh,

Advocates, are appointed as Assistants to assist the Receiver

in the administration of the companies and firms.

(vii)The proceedings in E.P.Nos.61, 62 and 63 of 2019

shall be kept in abeyance till the mediation process is over.

(viii)The mediation process shall be completed within a http://www.judis.nic.in

period of three months. If the mediation fails, the petitioners

are at liberty to raise all the issues raised in the present

revision petitions before the Executing Court as the Executing

Court is capable of addressing and deciding all the issues

raised by the civil revision petitioners including that of the

maintainability of the execution petition.

(ix)The petitioners as well as the respondents shall jointly

pay the monthly remuneration of Rs.7 Lakhs to the Receiver

and a sum of Rs.1,00,000/- each to the Advocates who will

assist the Receiver.

16.In view of the orders passed above, connected

miscellaneous petitions are closed. No costs.

17.Registry is directed to mark a copy of this order to the

Mediators, Receiver and Advocates who assist the Receiver.

                                                              08.04.2021
                      Index      : Yes / No
                      Internet   : Yes / No
                      bala
http://www.judis.nic.in


                      To

                      The Principal District Judge,
                      Tirunelveli.




http://www.judis.nic.in


                                       J.NISHA BANU, J.
                                                  bala




                                 COMMON ORDER MADE IN
                          CRP(MD)Nos.1797 to 1799 of 2019
                                      DATED : 08.04.2021




http://www.judis.nic.in