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TMI Blog2010 (10) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the Petitioners. He stated that the RAD suit filed by the original Petitioner has been dismissed for default only recently. Had I upheld the award, the amounts would have been payable only in the event of the order of dismissal attaining finality and subject to any further proceeding that the Petitioners may adopt in respect of their alleged tenancy. The award of compensation regarding the first floor is therefore set aside.It cannot therefore be said that the learned arbitrator did not considered the affidavit. The arbitrator was not bound to accept the contents thereof merely because original Respondent No.3 was not cross-examined. The arbitrator weighed the evidence, analyzed the circumstances and drew inferences which were entirely within his jurisdiction. The submission in this regard is, therefore, rejected. - Arbitration Petition No. 180 of 2007 - - - Dated:- 29-10-2010 - S. J. Vazifdar, JJ. For the Petitioner : Mr. Feredun DeVitre, senior counsel with Mr. Arif Bookwala, senior counsel and Mr. Farhan Dubash i/b M/s. Bharat Shah Co. For the Respondent : Mr. S.U. Kamdar, senior counsel with Mr. Dinyar D. Madon, seniorcounsel and Mr. A.H. Gokhale i/b Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1. I will in the judgment refer to it as Respondent No.1. 3. A property admeasuring 800 square yards of land was leased in favour of one Chunilal Shah for 999 years who assigned the same to one Sumanben Shah and Shantilal Shah. They, in turn, assigned the lease in favour of Respondent No.2 Shiv Prakash Seth as a Director and for and on behalf of the first Respondent. The first Respondent paid the consideration for the same and constructed a building thereon. 4. Respondent No.1 executed an English mortgage in favour of one Ravi Madan Shah, his wife, their son and daughter as security for a loan availed of by Respondent No.1 from them in the sum of Rs. 10,00,000/-. The repayment of the loan was guaranteed by the original Petitioner, Respondent No.2 and original Respondent No.3, who were the Directors of the first Respondent. Respondent No.1 was unable to repay the loan although the time for repayment was extended. Ultimately, the mortgagees insisted upon the loan being repaid failing which they threatened to enforce their rights under the mortgage. 5(a). The original Petitioner was in occupation of the premises on the second floor admeasuring 2000 square feet as a Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property. The original Petitioner was allowed to continue as the agent of the Receiver in respect of the premises in his possession, subject to payment of royalty which was fixed at Rs.6,000/- per month. 7. The parties ultimately executed a Memorandum of Understanding dated 20th July, 1995, clause 12 whereof contains an arbitration agreement. The relevant clauses of the Memorandum of Understanding are as under :- 1. All the assets and properties of the said Seth Industries Ltd (Props : of Simplex Woollen Mills) and the said two firms viz: Messrs Shiv Prakash Janakraj and M/s. Seth Textiles shall be sold at the price and on the terms to be expressly agreed upon in writing by and between Shiv Prakash Seth, Janakraj Seth, Ramesh Kumar Seth and Naresh Seth as expeditiously as possible and the sale proceeds thereof shall be accumulated in a common pool. The parties hereto shall procure orders/sanctions/ approvals, if any required for sale of the said assets and properties. ......... 7. All payments made since 1986 either by Shiv Prakash Seth, Janakraj Seth, Ramesh Kumar Seth and Naresh Seth for and on behalf of the said Company and the said two firms or personally relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1, vacant and peaceful possession of the entire first floor of the said building which consisted of two flats one of which was given by the first Respondent to a third party on leave and licence and the other is in its possession. The first Respondent further contended that it requested the original Petitioner to vacate the second floor to enable the sale thereof pursuant to the Memorandum of Understanding but that he failed to do so. The Petitioners case as to what transpired thereafter, after the discharge of the Court Receiver is as follows :- The claimants also requested Naresh Seth (original Petitioner) to vacate the second floor so that the same could be sold pursuant to the Memorandum of Understanding. Naresh Seth requested the claimants to let him occupy the same for a period of three years so that he could find alternative premises. Since he was one of the former directors of the claimant company and a close relation of the respondents being their brother, the claimants allowed him to occupy the premises on the second floor for a period of three years from 1 s t January 1997 to 31 s t December 1999 on payment of compensation at the then prevailing market rate of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation. (III) The award is contrary to the record and is, therefore patently absurd. (IV) The arbitrator did not consider the relevant evidence. (B) I have rejected submissions I(a) to (d). Submission I(e) is answered in the Petitioner s favour resulting in the entire award being set aside in so far as it pertains to the second floor. Submission I(f) is answered in the Petitioner s favour in so far as it pertains to the second floor in respect of the monetary amounts awarded furnishing an additional ground for setting aside the award in respect thereof. I have answered submissions IIA and IIB against the Petitioners with the clarification that the enforceability of the award of monetary amounts would be dependent upon and subject to the findings/judgment of the appropriate court or tribunal regarding the Petitioner s claim of tenancy in respect of the property. Submission III is answered in the Petitioner s favour in so far as it relates to the grant of monetary compensation in respect of the first floor. Submission IV is rejected. In the result I have set aside the entire award. Re: (I) : The arbitrator had no jurisdiction to decide the claims . 12. Mr. DeVitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual rate of Rs.4390/-. The difference in price was claimed by way of damages. The rate had increased from time to time during the period 31st March, 1974 to 26th May, 1975. The Respondent had placed an order for purchasing the material with one M/s. Industrial Cables Limited. The differential amount claimed as damages was stated in the notice to be Rs.37,61,465/-. (In paragraph 2 of he judgment, the figure is Rs.87,81,465/-. This, as the report itself indicates, was a typographical error and the correct figure is stated later in paragraph 2 of the judgment itself while quoting the arbitrator s award). However, in the statement of claim, the rate was stated to be Rs.12,100/-. The party which supplied the material was stated to be M/s. J.J.H Industries and the relevant date was stated to be 10th February, 1976. The claim made in arbitration, therefore, was Rs. 63,56,737.42. The arbitrator noticed the change, but observed that the question whether the Respondent was entitled to the rate claimed is a matter of evidence which could not be decided at this stage . The arbitrator observed that the effect of the inconsistency would have to be decided on merits and that the claim cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greements. Such limitations are found in several arbitration agreements. Clause 12 of the Memorandum of Understanding which contains the arbitration agreement between the parties herein, does not place any such limitation. 18. There is nothing in the Arbitration and Conciliation Act, 1996, or in principle, which requires the notice invoking the arbitration to state the claims proposed to be made in the reference. A notice merely indicating the disputes or that disputes have arisen and invoking the arbitration clause is sufficient unless the arbitration agreement itself requires the invocation to be in a particular manner. Mr. DeVitre s submission is, therefore, not well founded. 19. The reliance placed by Mr. Kamdar, the learned senior counsel appearing on behalf of the Respondent Nos.1, 2, 4A to 4C and 5, on the judgment of the Supreme Court in State of Orissa vs. Asis Ranjan Mohanty (1999) 9 SCC, 249, in regard to this submission is well founded. The Supreme Court held that the original statement of claim reserved the right to file additional claims. This was not, however, the only ground upon which the submission that the additional claims could not be raised before the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other notice also dated 26th July, 2000, was addressed by Respondent No.1 to the original Petitioner wherein all the disputes with respect to the redemption of the mortgage of the entire property, including the claim for the surplus amount payable upon redemption, were referred to and raised. The claims were not restricted to the second floor, but to the entire property and included therein all the claims which were raised in the statement of claim. The notice refers to the premises being Simplex House in general and not merely to the second floor. 21. Moreover, the original Petitioner did not, in reply to the notices both dated 26th July, 2000, contend that the claims made therein were beyond the scope of the reference and the arbitrator s jurisdiction, including on the ground that the claims raised before the arbitrator in the statement of claim were outside the scope/purview of the letters dated 26th July, 2000. It is, therefore, not open to the Petitioners now to raise this contention. 22. The submission is, therefore, rejected both in law and on facts. That the above findings are in the ultimate analysis of no avail to the Respondents qua the second floor on account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng him with power to decide those questions, as for instance, by a collateral or separate agreement which will be effective and operative. (4) If, however, the arbitration clause, so widely worded as to include within its scope questions of its existence, validity and effect (scope), is contained in the underlying commercial contract then decided cases have made a distinction between questions as to the existence and or validity of the agreement on the one hand and its effect (scope) on the other and have held that in the case of former those questions cannot be decided by the arbitrator, as by sheer logic the arbitration clause must fall along with underlying commercial contract which is either non-existent or illegal while in the case of the latter it will ordinarily be for the arbitrator to decide the effect or scope of the arbitration agreement i.e. to decide the issue of arbitrability of the claims preferred before him. 25. If the property was in the possession of a third party, it would have been necessary for the parties to the Memorandum of Understanding to take steps for obtaining possession thereof as well as recovery of monetary compensation for the use thereof if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relation to the sale or saleability of the property. The question as to the parties title is only the other side of the coin - the first Respondent s title. The title of one determines as a consequence the question of the title of the other. 28. Clause 10 of the agreement supports the Respondents in this regard. While effecting the sale of the property, the arbitrator would be entitled to call upon the parties to the Memorandum of Understanding to execute all documents/writings required for carrying out and implementing the terms thereof. Before the arbitrator can call upon the parties to execute any documents/writings contemplated in clause 10 of the agreement, it would of necessity require him to decide the rival contentions of the parties as regards the nature and details of such documents/writings that he may call upon the parties to execute for carrying out and implementing the terms of the Memorandum of Understanding one of which is the sale of the property. It is implicit, therefore, if not explicit that the rival claims and contentions of the parties as regards the property mentioned in the Memorandum of Understanding can be decided by the arbitrator. 29. A dispute re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrator has jurisdiction to consider and grant the relief of specific performance. He submitted that the claims made by first Respondent in effect are for specific performance of the Memorandum of Understanding. 36. Mr.DeVitre submitted that the first Respondent had not even claimed specific performance. Nor had the first Respondent averred that it was ready and willing to perform the Memorandum of Understanding which indicates that even the first Respondent did not considered its claim to be in the nature of specific performance. 37. Although the basis on which issue nos.4 15 have been answered in the affirmative may not be accurate I would set not aside the award on that ground. For the award read as a whole indicates that the arbitrator even otherwise came to the conclusion that the claims fall within the scope of the arbitration clause. 38. Mr.DeVitre submitted that the first Respondent had not even sought an order for the sale of the said property. He submitted that it was therefore, clear that the reference claimed before the arbitrator was not in accordance with the Memorandum of Understanding. 39. It was not necessary for any of the parties to have sought an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n upon the arbitrator to decide the issue if he otherwise did not have such jurisdiction. 43. Mr.DeVitre s next submission pertains only to the second floor . He submitted that it is the case of the Respondents themselves that with effect from 1st January 1997, the first Respondent granted a licence in favour of the original Petitioner in respect of the premises on the second floor for a period of three years at the rate of Rs. 60,000/- per month. The submission is based inter-alia on the following averments in the statement of claim :- 21. After the aforesaid order dated 20.12.1996 was passed the Respondent gave vacant and peaceful possession of the entire premises situate on the first floor of the said property to the Claimants. There are two flats situate on first floor of the said property. The smaller of the said two flats thereafter was given by the Claimants on Leave and License basis whereas the other flats is in possession of the Claimants. At that time, the Claimants requested the Respondent to also vacate the said second floor premises (more particularly described in Exhibit D hereto) occupied by the Respondent so that the same could be sold by the Claimants in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rs.60,000/- p.m. to the Claimants. Further, the Respondent did not vacate the said premises despite repeated requests of the Claimants and therefore, the Claimants could not sell the aforesaid premises as per the said Memorandum of Understanding dated 20.7.1995. In view of the above as on 29.2.2000, a sum of Rs.27,36,351/- was due and payable by the Respondent to the Claimants towards the amount of compensation payable by the Respondent for retaining possession of the said second floor premises. The Claimants says that due to some mistake and/or inadvertence, the aforesaid amount of Rs.3,25,139/- was not taken into account by them while calculating the aforesaid figure of Rs. 27,36,351/-. However, in the present claim, the Claimants have duly given credit to the Respondent for the said amount. 44. It is, therefore, clear that both the monetary amounts and possession of the premises on the second floor were claimed on the basis of the first Respondent allegedly having permitted the original Petitioner to occupy the second floor premises for three years from 1st January 1997 to 31st December 1999 upon payment of compensation/mesne profits at the market rate of Rs.60,000/- pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding an arbitral tribunal has jurisdiction to decide such disputes. The Full Bench further held that the term licence must be determined on the basis of section 52 of the Easements Act. It was submitted that there being an inherent lack of jurisdiction in the arbitrator to decide the disputes that arose in respect of the said licence even if the point had not been raised before him, it can be taken as a ground of challenge in a petition under section 34 of the Act. 48. Mr.Kamdar firstly submitted that the pleadings in the statement of claim and even in the correspondence prior thereto was not one of a licence. He submitted that the contentions raised on behalf of the Respondent was not that it had agreed to creating a licence in favour of the original Petitioner, but that the original Petitioner was liable to pay the amount as a mortgagee continuing in possession after the mortgage was discharged. The reliefs claimed, therefore, are not against the original petitioner as a licensee but as a trespasser continuing in possession after the discharge of the mortgage. 49. It may have been entirely different, had the pleading been that the original petitioner wrongly continued in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Act are applicable. The Act of 1996 is not covered within the ambit of section 41(2) in particular the expression "or any other law for the time being in force" contained therein. The question whether the exclusive jurisdiction of the Small Causes Court vested in terms of section 41 of the Act of 1882 is ousted, if an agreement between the licensor and licensee contains a clause for arbitration, the same will have to be answered in the negative. For,section 5 of the Act of 1996 in that sense is not an absolute non-obstante clause.section 5 of the Act of 1996 cannot affect the laws for the time being in force by virtue of which certain disputes may not be submitted to arbitration, as stipulated in section 2(3) of the Act of 1996. We hold that section 41 of the Act of 1882 falls within the ambit of section 2(3) of the Act of 1996. As a result of which, even if the Licence Agreement contains Arbitration Agreement, the exclusive jurisdiction of the Courts of Small Causes under section 41 of the Act of 1882 is not affected in any manner. Whereas, Arbitration Agreement in such cases would be invalid and inoperative on the principle that it would be against public policy to allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the parties to it. But in the instant case there was no such inherent lack of jurisdiction. The decision of the Privy Council in the case of Ledgard v. Bull is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the Court of the Subordinate Judge, who was incompetent to try it. By consent of the parties, the case was transferred to the Court of the District Judge for convenience of trial. It was laid down by the This Order is modified/corrected by Speaking to Minutes Order Privy Council that as the court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a court which was incompetent to try the suit. That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. (C) In Harshad Chiman Lal Modi v. DLF Universal Ltd.,(2005) 7 SCC 791 the Supreme Court held : 30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice . 51. I had considered the above judgments in a judgment dated 14th September 2010 in United Spirits Limited Vs. Paras Collins Distilleries Private Limited Ors, in Arbitration Petition 1072 of 2010. It was contended that the first two judgments, both delivered by a Bench of four learned Judges were conflicting. I held that they were not and attempted to reconcile them. In the present case, however it is not even necessary to do so. If Mr.DeVitre s submission is correct namely that the arbitrator does not have jurisdiction to decide the matters relating to licensee agreements in view of section 41 of the PSCC Act, it is a question of inherent lack of jurisdiction as the arbitrator had no jurisdiction in respect of the subject matter of the reference. 52. If the above principle applies to arbitral proceedings under the 1996 Act, the arbitrator having lacked inherent jurisdiction, did not have seisin of the case because the subject matter was alien to his jurisdiction. The award was therefore made by a tribunal entirely lacking in j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34. 34. Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if (a) the party making the application furnishes proof that (i) a party was under some incapacity; or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitral tribunal will eliminate the grounds for setting aside the arbitral award. 55. There is nothing under section 16 which indicates that a plea of inherent lack of jurisdiction cannot be raised in a petition under section 34 of the said Act even if it was not raised before the arbitrator. 56. I cannot persuade myself to accept Mr.Kamdar s submission that as the term validity in section 16(1) includes questions of inherent lack of jurisdiction, if an objection of inherent lack of jurisdiction is not raised, it cannot be raised in a petition under section 34. Questions relating to the lack of jurisdiction which can be waived or cured, must be raised as required under section 16 of the Act. In that event, the challenge to such findings under section 34 of the Act would be dealt with in the same manner and on the same principles as a challenge to an award in any other respect. Questions relating to inherent lack of jurisdiction may also be raised before the arbitrator. However, that does not imply that if not raised before the arbitrator questions relating to inherent lack of jurisdiction cannot be raised in a petition under section 34 of 1996 Act. 57. Mr.DeVitre s submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said arbitrator entered upon the reference on 6-1-2000. Appellant 1 appointed Justice N.N. Goswami (Retd.) as an arbitrator subsequently on 13-1-2000, which appointment was not valid being contrary to the terms of the agreement entered into between the parties. Respondent 1 thus submitted that the appointment of Justice N.N. Goswami (Retd.) was invalid and the award given by him was liable to be set aside in view of section 34(2)(a)(v) of the Act. 24. The whole object and scheme of the Act is to secure an expeditious resolution of disputes. Therefore, where a party raises a plea that the Arbitral Tribunal has not been properly constituted or has no jurisdiction, it must do so at the threshold before the Arbitral Tribunal so that remedial measures may be immediately taken and time and expense involved in hearing of the matter before the Arbitral Tribunal which may ultimately be found to be either not properly constituted or lacking in jurisdiction, in proceedings for setting aside the award, may be avoided. The commentary on Model Law clearly illustrates the aforesaid legal position. 25. Where a party has received notice and he does not raise a plea of lack of jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is based on general principles such as estoppel or venire contra factum proprium . It is intended to help the arbitral process function efficiently and in good faith. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement though has the knowledge of such noncompliance but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that noncompliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its objection. Though, in order to apply the doctrine of waiver by invoking section 4, the first condition is that the non-compliance must be of nonmandatory provision of Part I of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object. For example, sub-sections (2) and (3) of section 16 are one of such mandatory provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 63. This brings me to Mr.DeVitre s other contention viz. that the licence was created after the Memorandum of Understanding and therefore disputes relating thereto clearly fell outside the ambit of the arbitration agreement contained therein. The Memorandum of Understanding is dated 20th July, 1995 whereas the alleged licence was granted only thereafter with effect from 1st January, 1997. 64. Mr.Kamdar submitted that the contention that the Memorandum of Understanding did not cover the reliefs claimed was not raised by the Petitioner in the first or the second affidavits, in the draft issues tendered on behalf of the Petitioner, in the written statement and the additional written statement. It is not open, therefore, for the Petitioner to raise this issue in a petition under section 34 in any event. Relying upon the judgment of the Supreme Court in Gas Authority of India Ltd. v. Keti Construction (I) Ltd.,(2007) 5 SCC 38, he submitted that even assuming there is any force in Mr.DeVitre s submission it cannot be raised in this petition. 65. I will presume Mr.Kamdar s submission in this regard to be well founded as regards the claim for possession and to Rs. 27,36,351/-. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide a particular issue, it ought not to make observations in that regard. It is made clear that the appropriate Court that may decide the Petitioner s case regarding their being tenants will decide the same on its own merits uninfluenced by any of the observations made in the award. 71. Mr.DeVitre submitted that the tenancy rights do not get extinguished upon the redemption of a mortgage in a case where a mortgagee was the tenant. In this regard, he relied inter alia on the judgment of the Supreme Court in the case of Nirmal Chandra Vs.Vimal Chand, AIR 2001 SC 2284. 72. It is not necessary for me to consider this issue as a question of tenancy cannot be the subject matter of the arbitration proceeding and accordingly of this petition. It is open to the Petitioners to raise this contention before the appropriate Court. 73. Mr.DeVitre submitted that having come to the conclusion that the issue of tenancy cannot be decided in arbitration, the arbitrator s award of compensation is unsustainable. 74. I would agree with this submission only upto a point. The award of monetary compensation was granted on the basis that the Petitioner s claim for tenancy is not established. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. This is consistent with the pleading in the statement of claim. 77. Mr.Kamdar offered no explanation in this regard. The award of compensation regarding the first floor is therefore set aside. Re. IV: The arbitrator did not consider the relevant evidence and wrongly shut it out. 78. Mr.DeVitre in this regard submitted that the arbitrator erred in disregarding an affidavit dated 5th November 2005 of Janak Raj Seth, original Respondent No.3. He stated that although Janak Raj Seth was willing to be cross-examined, the other Respondents did not cross-examine him. Without such cross-examination, the affidavit could not have been disregarded. 79. This submission is incorrect. The arbitrator in paragraph 18 dealt with this aspect in considerable detail. The arbitrator extracted in extenso the earlier affidavits filed by original Respondent No.3, his wife and his daughters. The affidavit supported the first Respondent s case and affirmed the Memorandum of Understanding. That affidavit was dated 27th April 2001. The affidavit relied upon by Mr.DeVitre is dated 5th November 2005. The learned arbitrator noted that the heirs of original Respondent No.3, did not filed such an affida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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