ORDER
M. Karpaga Vinayagam, C.J.
Page 2346
1. Satish Chandra Agarwal is appellant, his brothers, Dinesh Chandra Agarwal, Naresh Chandra Agarwal and Girish Chandra Agarwal are respondents.
2. Shatrughan Prasad was the father of the appellant and respondents. After his death the appellant and respondents reached to an agreement for partition and allotment of share in the joint family properties and business on 28.11.1999. Besides some of the properties and share in the business allotted to Satish, appellant, it was agreed that Naresh and Dinesh, respondents 1 and 2 would pay Rs. 50 lakh to the appellant in lieu of the share in other properties.
3. On 14.09.2001 for giving effect to the agreement dated 28.11.1999, they entered into fresh agreement to refer to the arbitration without the consent of Satish, the appellant. However, during the course of the arbitration before the Sole Arbitrator, the appellant, on being informed about the said arbitration, sent a letter on 24.09.2001 to the Arbitrator authorizing him to arbitrate and Page 2347 requesting to consider the agreement dated 28.11.1999 and also to ensure the payment or Rs. 50 lakh in terms of the said agreement.
4. Modifying the mutual agreement dated 28.11.1999, the Arbitrator passed an award on 21.12.2001 allotting various shares to the appellant and the respondents without making provision for payment of Rs. 50 lakh to the appellant.
5. Aggrieved by this, the appellant filed an application challenging the award under Section 34 of the Arbitration and Conciliation Act before the Sub Judge I, Hazaribagh for setting aside the same dated 21.12.2001.
6. During the pendency of the matter, respondents 1 and 2, namely, Dinesh Chandra Agarwal and Naresh Chandra Agarwal, filed a petition raising the preliminary objection challenging the jurisdiction of the Court about the maintainability of the application under Section 34 of the Act filed by the appellant stating that the application is not maintainable.
7. Accepting the preliminary objection and considering the contention of the parties, the Sub Judge passed an order on 21.08.2002 dismissing the application filed by the appellant as not maintainable holding that the award dated 21.12.2001 is not actually an award, but is only explanation and execution of the award through the agreement dated 28.11.1999 and as such the application is not maintainable.
8. Aggrieved by this, Satish Chandra Agarwal, the appellant has filed this Arbitration Appeal before this Court.
9. The short grounds urged by the appellant are:
(i) The award dated 21.12.2001 cannot be said to be an explanation or execution of the earlier domestic award dated 28.11.1999 as the said arbitrator did not pass an order after hearing the appellant.
(ii) Admittedly, the respondents, the other brothers, made a mutual agreement on 14.09.2001 and to refer the matter to the arbitrator to pass a fresh award deciding and alloting the shares of the parties, as such fresh award was passed on 21.12.2001 by completely ignoring the earlier arrangement dated 28.11.1999, the actual award. Admittedly, the appellant was not the party to the agreement dated 14.09.2001. Therefore, the Sub Judge’s Court ought to have considered the award dated 21.12.2001 and decided the matter on merit. Instead, it merely mentioned wrongly the award dated 21.12.2001 is the execution or the award dated 28.11.1999.
(iii) The arbitrator has completely ignored the earlier arrangement dated 28.11.1999 by which Dinesh and Naresh, the respondents 1 and 2, had to pay Rs. 50 lakh to the appellant in lieu of share in the other properties. Therefore, the award dated 21.12.2001 cannot be considered to be execution of the earlier award dated 28.11.1999 as the said award dated 28.11.1999 has not been actually executed.
10. A counter affidavit has been filed by the respondents 1 and 2. It is stated in the said counter that the application which was filed under Section 34 of the Arbitration and Conciliation Act before the Sub Court is not maintainable in view of the fact that the award dated 21.12.2001 passed by the Sole Arbitrator was with the consent of the parties including the appellant. From the award it is Page 2348 clear that in lieu of cash the appellant will take property which the appellant had agreed to accept before the Arbitrator during the proceeding on 07.10.2001. This fact is apparent from the proceeding dated 07.10.2001 which was written by the appellant himself, namely, Satish Chandra Agarwal in his own handwriting in the presence of the parties before the Arbitrator who is none else than the brother-in-law of the parties.
10.1 In the award, there is a reference about the letter dated 24.09.2001 written by the appellant to the Arbitrator empowering and authorizing the Arbitrator to deal with the matter. This would indicate that he gave the consent to the Arbitrator.
10.2 Subsequent to the passing of the award dated 21.12.2001, the entire business was entrusted to the appellant who run the business exclusively. He stopped the other brothers from taking the fuel/petrol without payment from the fuel stations allotted in his favour. Having enjoyed benefit and advantage of award dated 21.12.2001, the appellant cannot maintain the application before the Sub Court under Section 34 of the Act.
10.3 In pursuance of the agreement dated 14.09.2001 entered into between the three respondents, the matter was referred to the arbitrator. The three respondents informed the matter to the appellant. Thereafter, the appellant sent a letter dated 24.09.2001 to the Arbitrator authorizing him to arbitrate and to ensure payment as per the agreement dated 28.11.1999. However, the petitioner, during the course of arbitration proceeding, duly accepted and consent to accept the properties in lieu of cash and it has been specifically recorded in the award.
10.4 The learned Arbitrator has not adjudicated or disturbed the share of the appellant, which is already allotted as per the agreement dated 28.11.1999. Learned Arbitrator has only allotted the properties in lieu of cash as per the wishes and declaration of the appellant, as mentioned in the award itself. The award dated 21.12.2001 has been passed by the Arbitrator only with the consent of the appellant, who, himself, had agreed to accept the properties in lieu of the cash.
10.5 Under these circumstances, the order passed by the Sub Court, dismissing the application under Section 34 of the Act, as not maintainable, is perfectly justified.
11. The 3rd respondent Girish Chandra Agarwal filed a counter affidavit stating that the respondent No. 3 must be permitted to be transposed as appellant as in the award, proper share has not been allotted to him.
12. On the basis of the above pleadings, elaborate arguments were advanced by the counsel for the parties. During the pendency of the matter, this Court also wanted the parties to compromise as they are all blood brothers. They had been referred to mediator. Inspite of several sittings, the mediator also was unable to effect the compromise. So, the matter has come back before this Court again for hearing. Accordingly, the counsel for the parties were allowed to argue once again.
13. I have carefully considered the submissions made by the counsel for the parties and I have given my anxious consideration.
14. The main point which has been urged by the counsel for the appellant is that the order passed by the Sub Court is liable to be quashed as the award dated 21.12.2001 by the arbitrator was without any notice to the appellant and Page 2349 without hearing him, ignoring the mutual agreement dated 28.11.1.999 arrived at between the three brothers.
15. Before dealing with this point, it would be worthwhile to refer to the family arrangement which was made on 28.11.1999 by way of agreement. In the agreement it is stated that the complete and final family arrangement will be done through appointment of arbitrator. The relevant portion of the agreement dated 28.11.1999 is as follows:
IS PRATIBANDH KE SAMBANDH MEIN EK SAMUCHIT EKRARNAMA. PARIWARIK VYAVASTHA. PANCH FAISAL KAR DEN EKE LIVE TEENO PAKSH APNI SAHMATI DETE HAIN AUR APNE KO PAYBAND KARTE HAIN. SHRI GIRISH CHANDRA AGRAWAL, SHRI NARESH CHANDRA AGRAWAL EVAM SHRI DINESH CHANDRA AGRAWAL MEIN AAPAS MEIN KOI VIVAAD NAHIN HAI TATHA VE APNI SAHULIYAT SE AAPSI BANTWARA SAMJHAUTA SE KAR LENGE ISMEIN SHRI SATISH CHANDRA AGRAWAL KO KOI AAPATTI NAHIN HAI AUR NA KABHI HOGI.
From the above it is seen that the parties had agreed to effect the agreement, arrived at between them through the decision of an arbitrator and they agreed to bind themselves to the same.
16. While the brothers were making efforts to execute the said agreement, there arose some differences. Therefore, on 14.09.2001, the three brothers entered into an agreement for reference to the arbitrator for allocation of their respective shares through the agreement dated 14.09.2001.
17. There is no dispute in the fact that during the course of arbitration proceeding before the arbitrator, the same was informed to the appellant. On 24.09.2001, he sent a detailed letter to the arbitrator about the mutual agreement dated 28.11.1999 and also about non-payment of Rs. 50 lakh in terms of the said agreement. In the very same letter he empowered and authorised arbitrator to arbitrate the matter and to ensure and effect the payment to him as per the agreement dated 28.11.1999.
18. The arbitrator started the arbitration proceeding from 30.09.2001 onwards. Between 16.10.2001 and 21.10.2001 the arbitration proceedings were held through several meetings. All the four brothers were present in the proceeding before the arbitrator on these dates. It may not be correct on the part of the appellant to say that no notice was issued to him and he never participated in all the proceeding as his presence and participation has been recorded in various order sheets of the arbitrator. On 07.11.2001 it is recorded in the proceeding, before the arbitrator, the appellant agreed that he may be given property in lieu of Rs. 50 lakh. Even in the award dated 21.12.2001 it is recorded by the arbitrator in the following manner:
This finally settles the case of partition and allotment to Satish Chandra Agrawal as per his wishes and declaration
The very first page of the arbitration award, the consensus of all the parties have been recorded in the following manner:
Being satisfied by the promises and commitment of the brothers, sisters and other family members on my indulgence in their family affairs and partition, I Dr. Sarju Prasad Gupta son of Late Narayan Prasad Agrawal resident of Shakuntalam, Arya Nagar, P.O., P.S. & District Hazaribag, entered into Page 2350 the subject examined papers and documents made discussions, deliberation and on the consensus of all, hereby declare my findings and make this Award.
19. Admittedly, the aforesaid consensus and consent recorded in the arbitration award dated 21.12.2001 has not been disputed by the appellant either before the Sub Court or before this Court.
20. As a matter of fact, appellant has not levelled any allegation against the arbitrator stating that he made a wrong record. When it is established that the award dated 21.12.2001 is a consent award and when such a consent is not challenged, the petition seeking for setting aside the arbitration award under Section 34 cannot be said to be maintainable.
21. The first family arrangement arrived at on 28.11.1999, which earmarked the allotment of properties to the appellant apart from his entitlement to Rs. 50 lakh from the two brothers, i.e., respondent No. 1 and 2, ultimately culminated into arbitration award dated 21.12.2001 wherein allocation of all the four brothers was earmarked. The perusal of the said document would show that the allocation to Satish, appellant in connection with landed properties as per document dated 28.11.1999 had remained the same. The only modification is the landed property was allotted to appellant in lieu of cash as per his wish and declaration. This is clearly mentioned in the award in the following manner:
WHEREAS Girish Chandra Agrawal, Naresh Chandra Agrawal and Dinesh Chandra Agrawal by common Panchanama Agreement dated 14th September 2001 have resolved a confidence in me and declared themselves to be bound by my Arbitration, Satish Chandra Agrawal by separate letter dated 24th September 2001 reposed confidence and by accepting the earlier Award dated 28.11.99, further required to settle and ensure due payment of committed amount therein by the brothers, before making final partition and agreed to be bound by the Arbitration by me: The copy of the earlier A ward dated 28.11.99, Panchanama dated 14th September 2001, letter dated 24th September 2001 are made the part of this Award.
AND
WHEREAS on Individual and separate meetings as well as joint meet with brothers and their sisters and other family members, I found them all Agreeable to the Arbitration. Satish Chandra Agrawal too became ready to accept the landed properties even in lieu of the cash amount payable to him in addition to what was allotted to him on 28.11.99.
Being satisfied by the promises and commitment of the brothers, sisters and other family members on my indulgence in their family affairs and partition, I Dr. Sarju Prasad Gupta son of Late Narayan Prasad Agrawal resident of Shakuntalam, Arya Nagar P.O. P.S. & District Hazaribag, entered into the subject examined papers and documents made discussions, deliberation and on the consensus of all hereby declare my findings and make this AWARD
1. The allotment to SATISH CHANDRA AGRAWAL as made in the AWARD dated 28.11.99 as to the Immovable properties and business is maintained in the same way and is quoted as below-
a. Lands at Hazaribag town measuring 2.36 acres stands in the name of Satish Chandra Agrawal out of it 0.20 acres is excluded for common passage/Road in exchange for 0.37 acres in another plot which is adjacent Page 2351 to his boundary wall on Eastern Side and this remains exclusively with him. Brothers will transfer the exchanged Area to him. Satish Chandra Agrawal will leave 0.10 acres of land out of his 2.16 acres if the common passage will be used by him as approach road to his land.
b. The existing house of Satish Chandra Agrawal with lands within the boundary wall.
c. 25% share in Kamdhenu Service Station at Datamamore, Kuju.
Besides the above, following business and landed properties are hereby allotted to him in lieu of the cash amount payable to him. The properties being allotted are assessed of more than the value.
22. So, the perusal of the above award would clearly indicate that the arbitrator allocated the various shares to all the brothers in pursuance of the arrangement dated 28.11.99 and passed an award on 21.12.2001 with the consent and consultation with all the brothers.
23. As a matter of fact the award dated 21.12.2001 passed by the arbitrator is the confirmation of the family arrangement dated 28.11.99 by which the parties have agreed to make a final family arrangement through the appointment of arbitrator. Therefore, the main point that has been urged by the counsel for the appellant that the award was passed without his consent does not deserve acceptance and as such the said point would fail.
24. Curiously, during the course of hearing before this Court, respondent No. 3 filed a counter alongwith a request for transpoisition as an appellant. As a matter of fact, counsel for the respondent No. 3, Girish Chandra Agrawal, himself would submit that in the arbitration proceeding all the four brothers including the appellant were present. Against award dated 21.12.2001, the respondent No. 3 has not filed any petition before the Sub Judge challenging the said award along with appellant. On the other hand he filed an application for setting aside the award dated 21.12.2001 before the District Judge, Hazaribagh on 20.02.2003.
25. It is an admitted fact that the same was dismissed as not maintainable giving liberty to the 3rd respondent to file another petition before the learned Sub Judge at Hazaribagh. However, the respondent No. 3 did not chose to file any petition pursuant to the above order before the Sub Court. Similarly, the respondent No. 3, Girish Chandra Agrawal did not file any separate petition before this Court challenging the award. On the other hand, while in course of hearing, respondent No. 3 filed the Counter requesting for his transposition as the appellant of this case. As indicated above, he was also one of the parties before the arbitration proceedings. Even according to him, all the brothers, i.e., the appellant and respondents 1 to 3 were present and in their presence the arbitration proceedings (Sic) and culminated into the award. So, transposition at a belated stage does not arise.
26. Moreover, as pointed out by the counsel for the parties, the arbitrator is none other than the brother-in-law of the appellant and respondents. Respondent No. 3 has also not made any allegation as against the arbitrator with reference to his conduct. Therefore, his request for transposition as appellant is liable to be rejected. According rejected.
27. In view of the above discussion, I do not find any merit in the appeal. This appeal is dismissed.