Madras High Court
S.Chelladurai vs Chandragurusamy on 2 November, 2021
C.R.P.(NPD)No.4323 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.4323 of 2017
and C.M.P.No.20319 of 2017
S.Chelladurai ... Petitioner
Vs.
1.Chandragurusamy
2.S.Selvaraj ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, seeking to struck down E.P.No.447 of 2017 in
A.R.O.P.No.732 of 2003 on the file of II Additional Sub Court,
Coimbatore.
For Petitioner : Mr.M.Muruganantham
for Mr.M.Rajamani
For R1 : Mr.T.M.Hariharan
For R2 : No appearance
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https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.4323 of 2017
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
Civil Revision Petition is filed to strike out E.P.No.447 of 2017 in
A.R.O.P.No.732 of 2003 on the file of II Additional Sub Court,
Coimbatore.
2.The learned counsel appearing for the petitioner contended that
petitioner and respondents are brothers. The 1st respondent filed
E.P.No.447 of 2017 based on the created fraudulent arbitration award
dated 04.04.2003. The learned Judge failed to see that there is no appeal
against the award dated 04.04.2003 and there is no petition filed to
implement the award by filing E.P. within the statutory time limit of 12
years. The present E.P. filed by the 1st respondent is on 08.06.2017 after
lapse of 14 years. E.P. filed beyond 12 years is not maintainable. The
learned Judge without considering the same, decided the said E.P. in the
absence of the petitioner. The petitioner filed E.A.No.769 of 2017 to set
aside the exparte order of delivery of possession on 09.09.2017 and the
said E.A. is pending. The petitioner also filed an Obstruction Petition on
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C.R.P.(NPD)No.4323 of 2017
01.09.2017 obstructing the delivery of possession. The petitioner also
filed E.A.SR.No.25706 of 2017 under Section 47 read with Section 151
of C.P.C., which was returned by the Court directing the petitioner to file
a petition to set aside the exparte order of delivery of possession. The 1st
respondent has deliberately sent a notice in the E.P. to the wrong address
of the petitioner, even though the petitioner and 1st respondent are living
in the same address.
2(i).The learned counsel appearing for the petitioner further
submitted that petitioner filed O.S.No.706 of 2009 on the file of II
Additional Sub Court, Coimbatore, for partition against the 1st
respondent and five others. The said suit was dismissed on 29.03.2016
and First Appeal A.S.No.37 of 2016 filed by the petitioner was allowed
decreeing the suit filed by the petitioner granting half share in the suit
property. The learned First Appellate Judge in A.S.No.37 of 2016 held
that the 1st respondent failed to prove arbitration award and arbitration
award is suspicious in nature and prayed for striking of E.P.
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C.R.P.(NPD)No.4323 of 2017
3.The learned counsel appearing for the 1st respondent submitted
that after arbitration award, the petitioner filed O.S.No.706 of 2009 and
therefore, the 1st respondent did not file E.P. immediately. After dismissal
of the said suit on 29.03.2016, the 1st respondent has filed present E.P.
The time taken to dispose of the suit has to be excluded and after
exclusion of such time, E.P. has been filed in time. The 1 st respondent has
filed Second Appeal before this Court challenging the judgment and
decree of First Appellate Court, Second Appeal is yet to be numbered and
prayed for dismissal of the Civil Revision Petition.
4.Though notice has been served on the 2nd respondent and his
name is printed in the cause list, there is no representation for the 2 nd
respondent either in person or through counsel.
5.Heard the learned counsel appearing for the petitioner as well as
the learned counsel appearing for the 1st respondent and perused the
entire materials on record.
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C.R.P.(NPD)No.4323 of 2017
6.From the materials on record, it is seen that the 1st respondent has
filed E.P.No.447 of 2017 for vacant possession of the suit property by
vacating the petitioner as per the arbitration award dated 04.04.2003. It is
seen that said E.P. is filed on 08.06.2017 after 14 years of passing of
arbitration award dated 04.04.2003. The contention of the learned
counsel for the petitioner is that arbitration award dated 04.04.2003 was
not challenged by petitioner and the said award has become final. The 1st
respondent did not file any petition to implement the award. On the face
of the dates mentioned above, it is clear that 1st respondent has filed E.P.
after 14 years 3 months of passing of arbitration award. At the time of
argument, the learned counsel appearing for the 1st respondent contended
that the petitioner filed O.S.No.706 of 2009 on the file of II Additional
Sub Court, Coimbatore, for partition, the same was dismissed only on
29.03.2016 and therefore, E.P. filed by the 1st respondent is within time.
7.From the materials on record, it is seen that the petitioner has
filed First Appeal on 04.06.2016 and 1st respondent has filed E.P. only
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C.R.P.(NPD)No.4323 of 2017
after 1 year 3 months of passing of judgment and decree in O.S.No.706
of 2009 and one year after filing First Appeal. Further, the suit filed by
the petitioner is not challenging the award dated 04.04.2003, but it is
only for partition of properties mentioned in E.P. In view of the same, the
contention of the learned counsel for the 1st respondent that 1st
respondent did not file E.P. within the time due to pendency of
O.S.No.706 of 2009 is without merits. The petitioner has produced
judgment dated 18.06.2021 made in A.S.No.37 of 2016 on the file of III
Additional District Court, Coimbatore. A reading of the said judgment
shows that First Appellate Court took note of the fact that 1 st respondent
did not produce arbitration agreement based on which, arbitration
proceedings was initiated and took adverse inference against the 1st
respondent. The learned First Appellate Judge held that arbitration award
is not properly stamped and it is legally invalid document. The learned
First Appellate Judge considering the evidence of D.W.2/Arbitrator, also
held that there is suspicion in conducting arbitration proceedings by
Arbitrator. The learned counsel for the 1st respondent submitted that the
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C.R.P.(NPD)No.4323 of 2017
1st respondent has filed Second Appeal before this Court and the same is
yet to be numbered. The learned counsel for the 1st respondent has not
furnished any details about the alleged filing of Second Appeal.
8.Considering the fact that suit and First Appeal filed by the
petitioner do not relate to challenging the arbitration proceedings dated
04.04.2003, the contention of the learned counsel for the 1st respondent
that time taken to dispose of O.S.No.706 of 2009 has to be excluded in
calculating the time for filing E.P. is without merits. On the face of the
record, it is seen that after 14 years 3 months of passing award, E.P. is
hopelessly barred by limitation. The 1st respondent is abusing the process
of law and Court by filing E.P. beyond 12 years. This Court has power
under Article 227 of the Constitution of India over the proceedings
pending before the Subordinate Court and has power to strike off any
proceedings, when the same is abuse of process of Court and the same is
barred by law.
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C.R.P.(NPD)No.4323 of 2017
9.For the above reasons, E.P.No.447 of 2017 filed by the 1st
respondent on the file of II Additional Sub Court, Coimbatore, is struck
off. Accordingly, this Civil Revision Petition stands allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
02.11.2021
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Index : Yes/No
Internet: Yes/No
kj
To
II Additional Subordinate Judge
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.4323 of 2017
V.M.VELUMANI,J.
Kj
C.R.P.(NPD)No.4323 of 2017
and C.M.P.No.20319 of 2017
02.11.2021
[1/2]
https://www.mhc.tn.gov.in/judis
