ORDER
S.S. Nijjar, J.
1. The plaintiff has filed this suit seeking the following reliefs:
(a) A declaration to the effect that defendant No. 13 who acted as an Arbitrator in the arbitration proceedings and reference before him in the matter of the disputes and differences amongst defendant Nos. 1 to 12 had no right, power or jurisdiction to pass any award in respect of the properties of the plaintiffs including the suit premises being the area admeasuring 1150 sq.ft. forming part of the office premises on the first floor of the building Sagar Bhavan situate at 147, Princess Street, Mumbai-400 002 which were in the possession, use and occupation of the plaintiffs as tenants.
(b) A declaration to the effect that the decree passed on 14th October, 1996 in Arbitration Petition No. 180 of 1996 to the extent of the properties of the plaintiffs is null and void and liable to be set aside to that extent.
(c) A declaration that defendant No. 14 has wrongly taken possession of the suit premises described in prayer clause (a) including the furniture, fixtures and articles of the plaintiffs.
(d) An order of injunction restraining defendant No. 14 and defendant Nos. 1 to 3 from taking any steps whereby the plaintiffs right to possess, use and occupy the suit premises is affected in any manner.
(e) A mandatory order of injunction directing defendant No. 14 to restore and hand over the possession of the suit premises as described in prayer (a) to the plaint.
Damages in the sum of Rs. 3 crores are also claimed. Notice of Motion has been taken out by the plaintiffs for restoration of the possession of the suit premises as described in Exhibit-A to the plaint. A prayer is also made for stay of the operation and enforcement of the decree dated 14th October, 1996 passed in Arbitration Petition No. 180 of 1996 to the extent of the properties of the plaintiffs and the suit premises described above.
2. This Notice of Motion came up for ad-interim reliefs on 8th October, 1997. Leave was granted. Prima facie, it was held that Receiver is not discharged in this matter and he will continue till the Notice of Motion is disposed of.
3. The facts which emerge from the various pleadings may be noticed.
Plaintiffs are a Public Limited Company having their registered office at 1st floor, Sagar Bhavan, 147 Princess Street, Mumbai-400 002 and their administrative office at 11, Jorawar Bhavan, 3rd floor, 93 Maharshi Karve Road, Marine Lines, Mumbai-400 020. The plaintiffs are presently operating from their administrative office at Jorawar Bhavan. Defendant Nos. 1 to 12 are all members of one family. Defendant No. 1 is the father of defendant Nos. 2 and 4. Defendant Nos. 3 and 5 are wives of defendant Nos. 2 and 4 respectively. Defendant Nos. 6, 8, 10 and 12 are the sons of defendant Nos. 4 and 5 and the grandsons of defendant No. 1. Defendant Nos. 7, 9 and 11 are the wives of defendant Nos. 6, 8 and 10. Defendant No. 13 acted as the Sole Arbitrator and made the award dated 24th June, 1995 filed in this Court under Award No. 208 of 1996. It is the case of the plaintiffs that although the plaintiffs were not a party to the arbitration proceedings, certain orders and a decree has been passed by this Court which have the effect of seriously prejudicing the rights, title and interest of the plaintiffs vis-a-vis the office premises on the first floor building of Sagar Bhavan. Defendant No. 14 is the Court Receiver, High Court, Bombay who in pursuance of the orders and the decree passed by this Court has been appointed Receiver of the plaintiffs’ office premises. Defendant No. 15 is a Limited Company and defendant No. 16 is a proprietary concern. No relief is claimed against defendant Nos. 15 and 16 who are said to be tenants also on the first floor building of Sagar Bhavan.
4. The plaintiffs claim to be in exclusive possession of an area about 1150 sq.ft. out of the total first floor area of 1500 sq.ft. at Sagar Bhavan. They claim to be monthly tenants of defendant No. 4 who is said to be the sole owner of the property known as Sagar Bhavan. Defendant No. 4 is also stated to be the Chairman and Managing Director of the plaintiffs. The shareholding pattern of the plaintiff company shows that defendant Nos. 1 to 3 have only 0.11 per cent of the total shareholding. Defendant Nos. 4 to 12 have 29.72 per cent of the shareholding. The rest of the shares are held by N.R.I. Overseas Corporate Bodies and foreign institutions, Government recognised Companies, the Government financial institutions, public and other institutions.
5. Mr. Kadam, learned Counsel appearing for the plaintiffs, submits that the plaintiffs are tenants of the first floor as demarcated in plan Exhibit-A. This submission is sought to be supported by the statement of payment of rent from the year 1980 upto the year 1996, Exhibit-B, rent receipts issued by defendant No. 4 to the plaintiffs and its predecessor in title, Exhibit-C to the plaint and Exhibit-1 to the additional affidavit in support dated 6th October, 1997 which is a certificate issued by Chartered Accountant showing that the payment of rent has been shown in the books of accounts. Mr. Kadam also relies on Bank statement of the plaintiff company which indicates payments made. He further submits that plaintiff company’s certificate of incorporation and Memorandum of Articles of Association also show that the main object of incorporation of the company was to take over the business of the United Cables as a going concern along with all goodwill and tenancy rights. Thus the tenancy rights of the suit premises were taken over by the plaintiff. Thereafter the learned Counsel relied on the agreement dated 15th April, 1996 between the plaintiffs and Accord Business Centre, Exhibit-H to the plaint whereby the plaintiff company has taken premises at Jorawar Bhavan for a period of 3 years from 15th April, 1996. This shows that the plaintiff company had partly shifted from the suit premises. The registered office remained in Sagar Bhavan, First Floor. The tenancy rights were never surrendered and the plaintiffs continued to be in possession. Even the Receiver’s report and the records of the plaintiff show that Sagar Bhavan is the registered office of the plaintiff Company. He also relied on the averments made in paragraphs 7(j), (k), (1) and (m) of the affidavit in reply. In paragraph 7 (j) it is stated that objects in the Memorandum of Articles of Association of Uniflex Cables Pvt. Ltd. was to take over the firm United Cables. In this paragraph it is also stated that a deed of assignment in respect of the take over was prepared and executed in favour of the Uniflex Cables Pvt. Ltd. And the Deed of Dissolution of the firm was also prepared. The consideration for take over was to be paid by issuing shares to the partners of United Cables in proportion of their shares in the partnership firm. Defendant No. 1 was to have received 4 per cent of the shares of the company. Defendant Nos. 1 to 3 and defendant Nos. 4 to 12 were to receive 44 per cent shares of the company. 8 per cent of the shares were to be equally divided amongst the three groups. In paragraph (m) it is mentioned that instead of executing the deed of assignment, defendant No. 4 fabricated another deed of assignment and made some changes in the Deed of Dissolution dated 1st April, 1991 also. Mr. Kadam submits that this plea is wholly fallacious as the deed of assignment has not been produced by the defendants. He further submits that there is no surrender of the tenancy. Therefore, the possession of the plaintiff has been wrongly interpreted by defendant Nos. 1 to 3 procuring orders from this Court by misrepresentation and misleading the Court. He further submits that in any event the decree inter se between defendants cannot be binding on a stranger i.e. plaintiff. Since the decree is not binding on the plaintiff, it can be challenged in the present suit. Thus the prayer is for setting aside the decree to the extent it affects the property of the plaintiff. He submits that the bar in filing a suit under section 32 of the Arbitration Act, 1940 is not applicable. He submits that Order 21, Rule 97 of the C.P.C. merely gives an option to the parties to take out obstructionist notice. This provision is only permissive in nature and cannot affect the right of the plaintiff to file the suit. He further submits that Order 21, Rule 99 also again gives a right only to the judgment debtor, since the plaintiff is not a judgment debtor, the aforesaid rule would not be applicable. The possession, according to Mr. Kadam, has been taken on the basis of the order dated 10th September, 1997 passed by Variava, J., on the Receiver’s report. However, order dated 8th Oct., 1997 in the present Notice of Motion makes it clear that the Receiver has not been discharged. Physical possession only has been interrupted by order of Variava, J. Therefore, the plaintiff is entitled to be put back in possession.
6. Mr. Mody, learned Counsel appearing for defendant Nos. 1 to 3, however, submits that defendant No. 4 is one of the two sons of defendant No. 1. The whole business had been developed by defendant No. 1, the father. Defendant No. 4 had gradually assumed control of the plaintiff company by various means. Sagar Bhavan was purchased by defendant No. 1 in the name of. Defendant No. 4. Disputes had arisen which were referred to the sole arbitration of defendant No. 13. He submits that defendant No. 13 was no stranger to the parties as he was also a director of the company at the relevant time. The family was doing a number of businesses and all the members of the family were using the same premises. Although the plaintiff is stated to be a Public Limited Company having a very wide shareholding, in effect it is in the control of defendant No. 4. He submits that defendant No. 1 having become an aged person was not interested in continuing with the active management of the business. Thus the Award came to be passed on 24th June, 1995. The Award merely distributed the various assets belonging to the Baid family. He submits that a perusal of the opening part of the Award would show that by three separate writings, defendant Nos. 1, 2 and 4 along with other members of both the groups have agreed by mutual consent to refer all disputes and differences which existed amongst the two groups. The Arbitrator was to decide all the differences between the two groups with regard to all kinds of properties as well as shares in partnership firms, corporate bodies, right, title, interest in any business venture etc. In the face of this recital, he submits that it cannot now be claimed by the plaintiffs that the disputes, pertaining to the plaintiff company were not referred to the two arbitrators. The Arbitrator in paragraph 1 of the Award had directed defendant Nos. 1 to 3 to transfer and assign the shares standing in Uniflex Cable Pvt. Ltd. in their names to the nominees of B.S.B. Group i.e. defendant Nos. 4 to 12 and their group at face value. B.S.B. Group was in turn directed to pay to defendant No. 2 the credit balance with interest as shown in his name in the books of account of Uniflex Cables Ltd. Paragraph 8 of the Award provides that the building known as Sagar Bhavan will conveyed to defendant No. 1 for consideration of Rupees Three lakhs by execution of deed of conveyance in respect thereof. Members of B.S.B. Group and members of I.S.B. Group were directed to vacate and hand over peaceful possession of area occupied by them in the building to defendant No. 1. It is further provided that the tenancy would be attorned in favour of defendant No.1 within six months from the Award, failing which the defaulting party will be bound and liable to pay by way of compensation Rs. 50,000/- per month to defendant No. 1 till the sale is completed. In paragraph 12 it is further directed that B.S.B. group (defendant Nos. 4 to 12) shall pay to defendant No. 1 a sum of Rs. 1,57,70,000/ – within one month from the date of the award in default the B.S.B. group are liable to compensate defendant No. 1 at the rate of 2 per cent per month for the first three months and thereafter at the rate of 3 per cent per month. To secure the aforesaid amount, a charge has been created on the shares held by members of B.S.B. Group in Uniflex Cables Ltd. The B.S.B. Group has been directed to hand over the shares to defendant No. 1 for holding the same as security. Mr. Mody submits that obviously the award had directed defendant Nos. 4 to 12 to hand over vacant possession to defendant No. 1. The two recognised tenants had been directed to attorn the tenancy in favour of defendant No. 1. According to Mr. Mody, this has been twisted by the plaintiff to claim that the tenancy of the plaintiffs was accepted even by the Arbitrator. He submits that the present suit filed by the plaintiff is an abuse of the process of the Court. Having lost upto the Supreme Court, the suit is not maintainable. Even otherwise, the findings given in various orders of this Court clearly bar the filing of the present suit by the plaintiff on the principles of res judicata and constructive res judicata. The plaintiffs themselves have taken out proceedings by way of Misc. Petition No. 296 of 1996 in Arbitration Petition Lodging No. 198 of 1996 claiming therein to be tenant in the suit premises. By an order dated 9th October, 1996, this Court rejected the plea that the plaintiff was a tenant and the ad-interim relief was refused. An appeal was filed against the aforesaid order which was disposed of on 25th March, 1997. This appeal was disposed of by noticing that the arbitration petition was on Board for admission. Thus the appeal was disposed of by expediting the hearing of the arbitration petition. This petition was, however, subsequently withdrawn by the plaintiffs on 7-1-97 in view of the order passed on 14th October, 1996. Mr. Mody submits that on 14th October, 1996 this Court had dismissed Arbitration Petition No. 180 of 1996 whereby defendant No. 4 was seeking to have the Award No. 208 of 1995 set aside. In the aforesaid petition the arguments which have been raised in the present suit were also raised. The learned Counsel points to the submissions which have been noticed in paragraph 10 of the order wherein Counsel for defendant No. 4 had categorically submitted that the Award deals with the properties belonging to the Limited Companies and HUF who are not parties before the Arbitrator. This submission was rejected. It was observed that the Award deals with the shareholding of the parties in dispute in one capacity or the other in the Limited Companies and the HUF and the Arbitrator was having jurisdiction to decide the dispute along with others. By no stretch of imagination it can be said that the Arbitrator has exceeded his jurisdiction or has made the Award affecting the rights of the parties who were allegedly not before him. Mr. Mody submits that in the face of these findings the plaintiff cannot now be heard to say that the Award deserves to be set aside on the ground that the plaintiff was not a party before the Arbitrator. Mr. Mody had also referred to the pleadings in the arbitration petition. In paragraph 11 of the Arbitration Petition No. 180 of 1996 the petitioner who is defendant No. 4 in the present suit has clearly stated that petitioner No. 1 is the Chairman of the plaintiff company. It is also stated that the company is not closely held company by the Baid family. It is stated further that respondent No. 1 (defendant No. 1 herein) holds 4000 shares. The respondent Nos. 2 and 3 (defendant Nos. 2 and 3 herein) also hold about 4000 shares each. There is a challenge to the direction given by the Arbitrator with regard to the conveyance of the property to defendant No. 1 in paragraph 17 for a consideration of Rs. 3 lakhs. It is the categoric plea that the Arbitrator has directed vacant possession of the property to be handed over to defendant No. 1. It is also stated that defendant No. 1 not being in possession of any part of the property could not be handed over the possession as the same is in the possession of the plaintiff. This, according to this paragraph, has been overlooked by the Arbitrator. In paragraph 21 it is again reiterated that the Award is not binding on the plaintiff. This is further reiterated in paragraph 24 wherein the plaintiff claims that the Arbitrator has failed to consider the submission that the plaintiff is the sole owner of the suit property. In the affidavit in rejoinder filed in the same proceedings, defendant No. 14 has categorically stated that having considered the assets and properties of the plaintiff company, the Award is vitiated by non-application of mind and in the process the learned Arbitrator has gone beyond the scope of the reference. In paragraph 36 of the same affidavit in rejoinder, defendant No. 4 denies having vacated the premises in pursuance of the Award or otherwise as the premises are said to be tenanted by the plaintiff, Marine Cables and Wires Pvt. Ltd.
7. Having failed in all this, Appeal No. 153 of 1997 is filed against the aforesaid order dated 14th October, 1996. By an order dated 25th June, 1997 the appeal was dismissed. The Division Bench categorically rejected the submissions with regard to the transfer of the properties of the plaintiff company. The Division Bench rejected the submission on the ground that even in reference to the Arbitrator, the dispute with regard to the company and its shareholding is specifically mentioned. Against the aforesaid order defendant No. 4 filed S.L.P No. 18506 of 1997. The same was dismissed. However, not content with this, defendant No. 4 then pursued the matter through his children by filling Misc. Petition Lodging No. 111 of 1997 on the ground that they had not been served. In this petition also no ad-interim relief was granted. Mr. Mody has then referred to paragraph 17 of the Memorandum of Appeal filed in Appeal No. 153 of 1997. In paragraphs 17 and 18 of the Memorandum of Appeal specifically raises the plea that the learned Single Judge has erred in not noticing that Arbitrator had purported to treat the plaintiff as if it was a joint family asset and its management and asset would be subject matter of distribution or allotment. The plaintiff was not a party to the reference. Uniflex Cables Ltd. is an independent legal entity. No shares were held in the company by H.U.F of appellant No. 1. In paragraph 18 again the plea is raised that the Single Judge ought to have appreciated that impugned Award was without jurisdiction inasmuch as the learned Arbitrator had directed Uniflex Cables Ltd. to vacate the office premises in its occupation and hand over the same to respondent No. 1. These very pleas are raised, according to Mr. Mody, in the plaint. The findings have been returned by the Division Bench. Thus the suit is wholly misconceived. He further submits that perusal of the order passed by Justice Jhunjhunwala would show that the plaintiff has no regard whatsoever for the orders of this Court. He makes a pointed reference to the orders passed in September, 1996 wherein it is clearly stated that not only the plaintiff has disobeyed the orders of the Court but has also tried to create tenancy in respect of the portion of the premises in favour of Uniflex Cables Ltd. He submits that the plaintiff has abused the process of Court and, therefore, does not deserve any equitable relief. He relies on Shahu Madhudas v. Mukundram, A.I.R. 1955 S.C. 481 to submit that the findings arrived at by the Division Bench are binding on all the parties. He also submits that the plaintiffs have filed a suit in the Small Causes Court for a declaration to the effect that the plaintiff is a tenant. This Court, therefore, ought not to entertain the present suit. He also relies on a judgment of this Court reported in Prataprai Trambaklal Mehta v. Jayant Nemchand Shah, to submit that the plaintiff has to seek its remedy in the execution proceedings.
8. I have considered the arguments put forward by the Counsel for the parties. The Arbitrator gave the Award on 24 the June, 1995. This Award was duly filed in the Court, being Award No. 208 of 95 and served on the parties. Defendant Nos. 4, 5 and 8 to 12 filed Arbitration Petition being Arbitration Petition No. 180 of 1996 under sections 30 and 33 of the Arbitration Act seeking to set aside the Award. Whilst the Arbitration Petition was pending, on 7th September, 1996, an attempt was made by defendant No. 4 to dispossess defendant Nos. 1 to 3 from the suit premises. These premises were in the occupation of defendant Nos. 2 to 12 as members of the Baid family. Consequently, defendant No. 1 was constrained to file interim petition being Arbitration Petition Lodging No. 198 of 1996 subsequently numbered as Arbitration Petition No. 278 of 1996. Prayer was made for appointment of Court Receiver of the premises situate at Sagar Bhavan (hereinafter referred to as “the suit premises”). Ad-interim Receiver was appointed in this petition on 9th September, 1996. Pursuant to the aforesaid order, the Court Receiver made a report on 11th September, 1996. This report bears out the occupation of the suit premises by the members of the Baid family. Since defendant Nos. 2 to 12 were partners and shareholders in various Companies, the records of the firms and companies were found in the suit premises. The report of the Receiver mentions that space has also been given to Marine Cables and Wires and to Vinay Enterprises on rental basis. The report also mentions that no separate portion of the suit premises is given to the plaintiff. Another order was passed on 13th September, 1996. In this order it is observed that defendant Nos. 4 to 12 had taken the law into their own hands and had ousted defendant No. 1 from the premises in question. It is observed that defendant Nos. 4 to 12 had tried to bring in articles and goods upon the premises to establish their possession. This is borne out from the report of the Receiver. In this order it was directed that the Receiver shall permit defendant No. 1 and the other defendants to occupy the premises as agents of the Receiver. It is further directed that defendant No. 1 shall occupy the table marked with the word “pet” in red on the sketch plan taken on record and marked “X”. The Receiver was also directed to permit defendant No. 4 to occupy the table marked R-3 in red. Defendant No. 2 shall occupy the table marked R-1. In view of the urgency of the situation, the Receiver was directed to execute the order before sunset. It is also observed that the order was passed with the intend to put defendant No. 1 back in possession. It is noticed that defendant Nos. 4 to 12 have altered the position which existed prior to the making of the Award. Defendant No. 4 obstructed the implementation of the aforesaid order. This is apparent from the report of the Court Receiver dated 18th September, 1996. It is observed that an employee of the plaintiff viz. Shri G. Gilbert arrived at the site with the keys and informed the representative of the Court Receiver that defendant No. 4 would be coming shortly. The Receiver observed that the table which was meant to be occupied by defendant No. 1 had been “chopped off/ sawed” off from the cabin. The Receiver also noticed that the cabinets which were placed in the cabin occupied by defendant No. 4 had been filled in by various books of account and record of defendant No. 4. Defendant No. 4 also failed to hand over the keys. Generally the Receiver was obstructed in the performance of his duties. In view of the aforesaid behaviour of defendant No. 4 another order was passed by this Court on 19th September, 1996. Justice Jhunjhunwala observed in the aforesaid order that the conduct of defendant No. 4, prima facie, amounts to Contempt of Court. Not only was the Receiver obstructed and defendant No. 1 was illegally dispossessed but defendant No. 4 even made attempts to create tenancy in respect of portion of the suit premises in favour of the plaintiff. The claim of tenancy was specifically rejected by the Court by giving detailed reasons. The Prothonotary and Sr. Master was directed to issue notice to defendant No. 4 to show cause why Contempt of Court proceedings should not be initiated against him. The Receiver was directed to take possession of the entire premises and if found to be locked to break open the lock, if necessary with the help of the police. The Receiver was also directed to permit any of the defendants to occupy the spaces earmarked for them in the earlier order.
9. Thereafter the plaintiffs filed Miscellaneous Petition No. 296 of 1996 in Arbitration Petition Lodging No. 198 of 1996. The plaintiffs prayed for discharge of the Receiver and for variation of the orders earlier passed on 9th September, 13th September and 19th September, 1996. An order was passed on 9th October, 1996 in the aforesaid petition declining any ad-interim relief to defendant No. 4. This Court observed that the plaintiffs are not in a position to produce any documents to show that the plaintiffs are tenants in the suit premises. It is observed that the plaintiffs were merely occupying a table space in the hall cabin which had been established in the earlier proceedings, even by the report of the Receiver. The Court also observed that the rent receipt on which reliance is placed does not show the area allegedly let out to the plaintiffs. The Court also observed that it is inconceivable that a large area as claimed by the plaintiffs would be let out for a paltry sum of Rs. 55/-. So by 9th October, 1996 it becomes apparent that the plaintiffs’ claim for tenancy had been prima facie rejected. It also becomes apparent, that defendant No. 4 has been recognised to be in control of the plaintiff. It is also recognised that defendant No. 4 was in fact protecting the claim of the plaintiff being the Chairman-cum-Managing Director of the plaintiffs. Thus,
1 find it a little difficult to believe, when it is argued by Mr. Kadam, that the plaintiff was not aware of the proceedings which were going on between defendant Nos. 2 to 12. I also find it difficult to believe that the plaintiff was precluded in any manner from joining the proceedings which defendant No. 4 had taken out challenging the above by way of Arbitration Petition No. 180 of 96. Indeed, the Arbitration Petition No. 180 of 1996 was decided by the same Judge, Jhunjhunwala, J., on 14th October, 1996. The same was dismissed. A decree was passed in terms of the Award. A perusal of this order shows that the learned Counsel appearing for defendant No. 4 had specifically submitted that the Award deals with the properties belonging to the Limited Companies and H.U.F. who are not parties before the Arbitrator. This plea is specifically rejected. It is held that the Arbitrator has acted within his jurisdiction. Even after the passing of the order which adversely affected the claim of the plaintiff, the same was not challenged by way of an appeal. It is a matter of record that defendant No. 4, however, carried the matter in Appeal by way of Appeal No. 153 of 1997. This appeal was dismissed on 25th June, 1997. It was also submitted before the Division Bench that the Award ought to be set aside as certain properties of the plaintiff company are sought to be transferred in favour of certain parties. In the interregnum certain other developments took place. Arbitration Petition Lodging No. 198 of 1996, subsequently numbered as Arbitration Petition No. 278 of 96 came up for hearing before Justice K.G. Shah on 7th January, 1997. Counsel for defendant No. 1 naturally made a statement not to proceed with the petition any further in view of the fact that Arbitration Petition No. 180 of 96 filed by defendant No. 4 had been dismissed and a decree had been passed in terms of the Award. Therefore, by order dated 7-1-97 the petition was disposed of. Defendant Nos. 4 to 12 were represented by Counsel at that stage. Counsel for defendant Nos. 4 to 12 did not point out to the Court about the pendency of the Misc. Petition No. 296 of 1996 which had been filed in Arbitration Petition No. 278 of 96. Against the order dated 9th October, 1996 refusing ad-interim relief to the plaintiff, Appeal No. 210 of 1997 was filed before the Division Bench. This appeal came up for admission on 25-3-1997. On that very day, Misc. Petition No. 296 of 1996 was also appearing on the Board of K.G. Shah for admission. It is to be noted that Appeal No. 210 of 1997 was filed against the order dated 9th October, 1996 in Misc. Petition No. 296 of 1996 whereby Justice Jhunjhunwala had declined to grant any ad-interim relief to the plaintiff. This fact was brought to the notice of the Division Bench and the appeal was disposed of The Division Bench was of the opinion that ends of justice will be met if the direction is given to the learned Single Judge to take up before the petition for admission expeditiously. However, it appears that instead of expediting the hearing of Misc. Petition No. 296 of 1996 the Division Bench had inadvertently expedited the hearing of Arbitration Petition No. 278 of 1996. As noticed earlier, Arbitration Petition No. 278 of 1996 had already been disposed of on 7-1-97 in view of the fact that Arbitration Petition No. 180 of 1996 had been dismissed on 14th October, 1996. Therefore, obviously there was no question of expediting the hearing of Arbitration Petition No. 278 of 1996. Much has been made of these errors which had crept into the order of the Division Bench dated 25-3-97. In the affidavit in reply filed by defendant No. 1, the Board of Justice K.G. Shah for 25-3-97 is attached as Exhibit-14. A perusal of the same shows that Misc. Petition No. 296 of 96 was appearing on the Board of Justice K.G. Shah for admission. Thus, it leaves no manner of doubt that the defendants are making capital out of an inadvertent error whilst submitting that defendant Nos. 1 to 3 had misled the Division Bench into not deciding the appeal on merits. Therefore, I do not find much substance in the aforesaid submissions of Mr. Kadam also.
10. Miscllaneous Petition No. 296 of 1996 filed by the plaintiff thereafter came up for admission before Mrs. Justice Baam on 11th August, 1997. On that day, Mrs. Justice Baam passed an order observing that in view of the fact that Arbitration Petition No. 278 of 1996 has been disposed of on January 7, 1997, Counsel appearing for the petitioner therein does not wish to proceed with present application. This order also observes that the Award has been made Rule of the Court by order dated 7-1-97. This again is an error which has crept in due to the statement made by the Counsel appearing for defendant No. 4. As stated earlier. Arbitration Petition No. 180 of 1996 was dismissed on 14th October, 1996 by Justice Jhunjhunwala and decree in terms of the Award had been passed. However, Mrs. Justice Baam observed that whatever legal proceedings the applicants are entitled to under law, they may adopt the same. All this having come to pass, the Court Receiver submitted a report on 18th August, 1997. Inspite of all this, defendant Nos. 4 to 12 did not remove themselves from the suit premises. The Court Receiver, therefore, made a report to the Court. Having failed in obtaining any favourable orders, the plaintiff and defendant No. 4 thereafter put up defendant Nos. 6 and 7 to file Misc. Petition Lodging No. 111 of 1997 for setting aside the Award. It is to be noticed that defendant Nos. 6 and 7 were deliberately not impleaded as petitioners by defendant No. 4 in Arbitration Petition No. 180 of 1996. Defendant No. 6 is the son of defendant Nos. 4 and 5. Defendant No. 7 is the wife of defendant No. 6. In this petition, an application was made for stay of the implementation of the Award. This application was decided by Variava, J., on 23rd April, 1997. Justice Variava, inter alia, observed as follows in paragraphs 7 and 8.
“7. It is also pertinent to note that this petition is only taken out after the challenge of the 4th respondent (herein) to the Award is dismissed by this Court. It prima facie appears that having failed in their attempt to have the Award set aside, now another member of the family has been put up to stall execution of the decree.
8. Further as it is now clear that the petitioner had knowledge of the filing of the Award, they were also aware that decree would be passed in terms of the Award. There was nothing which prevented them from coming to Court earlier, if genuinely they had not been served.”
It was also observed that defendant Nos. 6 and 7 were parties in Arbitration Petition No. 296 of 1996 filed by the plaintiff. In that petition, defendant Nos. 4 to 12 had been represented by a common firm of Advocates, M/s. Mayur Narendra and Company. The Vakalatnama had been duly signed by defendant Nos. 6 and 7. Thus, ad-interim application was dismissed by Justice Variava. As noticed earlier, in the meantime Appeal No. 153 of 1997 in Arbitration Petition No. 180 of 96 filed by defendant Nos. 4 to 12 had been dismissed by the Division Bench on 25th June, 1997.
11. Despite having met with failure at every stage, defendant Nos. 4 to 12 did not remove themselves from the suit premises. The Court Receiver, therefore, made a report to the Court which came up for hearing before Justice Variava on 10th September, 1997. In this report, the Receiver had prayed that defendant Nos. 4 to 12 be directed to hand over possession of the premises along with keys of the suit property in order to put defendant No. 1 in possession. This report was made absolute by Justice Variava . It was in pursuance of the order of Justice Variava dated 10th September, 1997 that the Receiver took possession from defendant Nos. 4 to 12 and handed over possession of the suit premises to defendant No. 1 in execution of the decree. Defendant No. 1 has executed a receipt dated 26th September, 1997 accepting the possession from the Court Receiver. In the meantime, defendant Nos. 4, 5 and 8 to 12 had filed S.L.P against the judgment dated 25th June, 1997 of the Division Bench in Arbitration Petition No. 180 of 1996. This S.L.P. was dismissed by the Supreme Court on 13th October, 1997.
12. From the above, I am satisfied that the claim of the plaintiff has been considered throughout the proceedings. Defendant No. 4 admittedly is the Chairman and Managing Director of the plaintiff. I, therefore, find it difficult to believe the submission of Mr. Kadam to the effect that the Award as well as the decree deserve to set aside on the ground that the plaintiff was not a party to the present proceedings. The plea of tenancy and also adjudication of the rights with regard to the properties of the plaintiff have been specifically raised before the Division Bench in Arbitration Petition No. 180 of 1996 culminating in Appeal No. 153 of 1996. The claims have been rejected. The very claims were made before the Supreme Court in the S.L.P. The Special Leave Petition has been dismissed. The questions of law posed in the S.L.P. make it abundantly clear that the case that the case of the plaintiff has been fully argued by defendant No. 4. Questions of law Nos. IX and XI were framed as follows:
“(IX) Whether an Award can be passed in respect of properties of third parties who are not parties to the arbitration agreement and can a decree based on such an Award be passed.
(XI) Can an Arbitrator arbitrate on properties and rights including tenancy rights of a Public Limited Company who is not a party to the reference.”
In the face of the above, I find it, prima facie, difficult to accept the submission of Mr. Kadam to the effect that the plaintiff is not indulging in abuse of the process of the Court. The plaintiff company is controlled by the group of defendant No. 4. The Award had been challenged by defendant No. 4 in Arbitration Petition No. 180 of 1996 as the son of defendant No. 1. Whilst pursuing these proceedings upto the Supreme Court defendant No. 4 did not think it necessary to inform the plaintiff about the adverse orders which had been passed against the plaintiff. The defendant No. 4 and the Chairman-cum-Managing Director of the plaintiff are one and the same persons viz. Bijaysingh Mansingh Baid. During the course of arguments both the Counsel had submitted that the Court is free to lift the corporate veil. In my view, the distinctiveness of the plaintiff Company from defendant No. 4 cannot be stretched to such an extent as to reach a conclusion that the plaintiff was wholly ignorant of the proceedings being conducted by the Chairman-cum-Managing Director with regard to the Arbitration Award. In my view it was open to the plaintiff to file S.L.P against the order of the Division Bench dated 25-6-97 in Appeal No. 153 of 1997. The fact that the plaintiff is not an innocent party is also evident from the fact that the plaintiff has filed a suit being R.A. Declaratory Suit No. 951 of 1996 in the Court of Small Causes at Bombay on 14th June, 1996. Thus, it becomes evident that the plaintiff joins the proceedings as and when desired. It prima facie appears that the plaintiff is abusing the process of the Court. It is not possible to hold that the plaintiffs were not aware of the proceedings in which orders adverse to the plaintiff have been passed. Similar plea taken by defendant Nos. 6 and 7 has been rejected by Variava, J., as noticed earlier. Even the claim of the plaintiff with regard to tenancy has been rejected by Justice Jhunjhunwala in Misc. Petition No. 296 of 96 filed by the plaintiff. In every conceivable proceedings, the claims put forward by defendant No. 4 on behalf of the plaintiff have been rejected. In such circumstances, it would be wholly inequitable to grant any interim relief to the plaintiff in the present proceedings. In my view, the plaintiff was at liberty to file Appeal against the Order of the Division Bench in Appeal No. 153 of 1997 in Arbitration Petition No. 180 of 1996. Defendant No. 4 obviously did not initiate any proceedings on behalf of the plaintiff perhaps foreseeing a contingency where it would be necessary to bring in the plaintiff as an independent legal entity on the ground that the company is a juristic person. This, indeed, is the submission of Mr. Kadam. He submits that the company being not a party to any of the proceedings, the Arbitration Award as also the decree deserve to be set aside. I do not find much merit in the submission of Mr. Kadam. The plaintiff was obviously aware of the proceedings which were going on between the defendants. The plaintiff filed Misc. Petition No. 296 of 1996 in Arbitration Petition Lodging No. 198 of 96 which had been filed by defendant No. 1 against defendant Nos. 2 to 12. It is inconceivable that the plaintiff was not aware of the decree having been passed on 14th October, 1996 in terms of the Award in Arbitration Petition No. 180 of 1996. Defendant Nos. 4, 5 and 8 to 12 filed the appeal before the Division Bench being Appeal No. 153 of 1997. Yet, the plaintiff remained a mute spectator. Now the plaintiff claims to be an injured innocent party. I am unable to accept the submission of Mr. Kadam that the Award as well as the decree deserve to be set aside on the ground that the plaintiff is not a party.
13. Even if not on the principle of constructive res judicata, in my view, the plaintiff would not be entitled to any relief in the present Notice of Motion on the ground of equitable estoppel. Having not challenged the findings returned against the plaintiff at various stages, the plaintiff cannot now be permitted to say that it remained an innocent party outside the proceedings. This apart, there is another reason why no relief could be granted to the plaintiffs. Admittedly, execution proceedings are pending. Remedy is available to the plaintiff in the form of an obstructionist notice under Order 21, Rule 99 of the Civil Procedure Code. This Rule provides that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree, he may make an application to the Court complaining of such dispossession. On such application being made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. This Rule has to be read together with Rule 101 of Order 21. Rule 101 provides that all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the Court dealing with the application and not by a separate suit. In view of the fact that defendant No. 4 is the Chairman and Managing Director of the plaintiff company and in view of the fact that the plaintiffs had themselves taken out Misc. Petition No. 296 of 1996 for variation of the orders dated 9th September, 96, 13th September, 1996 and 19th September, 1996, it would have been normal for the plaintiff to make an application under Order 21, Rule 99. The plaintiff has deliberately not taken this course and filed the present suit. Mr. Kadam whilst arguing the matter stated that no doubt the application under Order 21, Rule 99 would be more expeditious but that does not mean that the present suit filed by the plaintiff is not maintainable. In my view, the remedy under Order 21, Rule 99 read with Rule 101 being available to the plaintiff, the present proceedings are clearly an abuse of the process of the Court. I am satisfied that the plaintiff has filed the present suit only at the instance of defendant No. 4. Admittedly defendant No. 4 is at the helm of the affairs of the plaintiff company. A perusal of the various pleadings also indicate that the plaintiff had actually shifted his functioning to the administrative office at Jorawar Shavan. A perusal of the award also shows that the Arbitrator has merely carried out a partition of the various firms and the companies which were in control of the Baid family. It is a matter of record that defendant No. 4 and the plaintiff have scant regard for the due process of law. Plaintiff as well as defendant No. 4 obstructed the Court Receiver in execurtion of the orders passed by Justice Jhunjhunwala. Defendant No. 4 chopped off/sawed the table of defendant No. 1 who happens to be the father of defendant No. 4. All out efforts were made to create a tenancy in favour of the plaintiff by defendant No. 4 after the Arbitration Award had been given and defendant No. 4 had been ordered to convey Sagar Bhawan in favour of defendant No. 4 for a consideration of Rs. 3 lakhs. Prima facie, I am satisfied that the plaintiff and defendant No. 4 colluded to create some sort of tendency rights in favour of the plaintiff in Sagar Bhawan. I am, prima facie, of the view that the plaintiff has not come to Court with clean hands. This is evident from the orders passed by Justice Variava on 23rd April, 1997 in Misc. Petition No. 111 of 1997 filed by defendant Nos. 6 and 7. Justice Variava observed as follows.
“It prima facie appears that having failed in their attempt to have the Award set aside, now another member of the family has been put up to stall execution of the decree.”
In my view, the suit is filed with the same intention to stall the execution of the decree. Therefore, in my view, it would be wholly inequitable to permit the plaintiff to delay the execution of the decree any further.
14. For the foregoing reasons the Notice of Motion is dismissed.
At this stage Mr. Kadam states that the order passed by Deshpande, J. at the ad-interim stage on 8th October, 1997 wherein it is observed that the Receiver is not discharged may be permitted to be continued for a period of four weeks. Order accordingly.
Certified copy expedited.
15. Notice of motion dismissed.