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TMI Blog2000 (11) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... avit. The petitioner has filed affidavit in reply. 2. The petitioner also has filed a Chamber Summons No. 956 of 2000 for a direction to the respondent to disclose the assets and properties both movable and immovable, which form part of the assets of the deceased Vipin Pandya and/or which she has inherited from him as his widow as also her own assets and properties. The petitioner has also sought injunction orders and attachment of the properties of the respondent etc. In this chamber summons both the parties have filed their respective affidavit, affidavit in reply and affidavit in rejoinder. A third party by name Ms. Smita Patel has also entered the fray between the petitioner and the respondent to stake her own claim. She has also filed her own affidavit in her capacity as one of the creditors of the deceased Vipin Pandya, husband of the respondent. 3. There is also another chamber summons filed by the respondent bearing Chamber Summons No. 1251 of 2000 seeking direction to the petitioner to furnish to the respondent inspection and photo copies of the documents set out in the Schedule of the said chamber summons. 4. From the synopsis submitted on behalf of the petitioner, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the parties and it cannot be challenged. He further submitted that this Court granted petitioners the decree in terms of the award and the said order has been confirmed by the Appeal Court and therefore, the points which are raised have already been concluded and they are governed by the doctrine of res judicata. Sbri Thakore further submitted that this Court sitting as an Executing Court cannot go behind the award which has now become a decree. Shri Thakore further stretched his submissions to the point that the Executing Court has to merely enforce the decree and cannot look into any material or any documents which form part of the award. On merits of the case Shri Thakore has drawn my pointed attention to the fact that the present respondent had signed a memorandum of understanding with the petitioners confirming and admitting the debt under the award and therefore, she is now estopped from disowning any liability under the said award. He has also pointed out that the said memorandum of understanding was signed by the respondent in the presence of two independent witnesses who have also filed separate affidavits to that effect in this Court. He has also relied upon certain aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in law, since this would come within the expression "otherwise invalid" used In Section 30 of the Arbitration Act. Non-application of mind to the materials on record suggests absence of fair play and indicates that the Arbitrator did not function in a manner befitting his role. On this ground also, the impugned award is liable to be set aside and is hereby set aside." 8. The third judgment on which the learned Advocate for the respondent has relied upon is in the case of S. P. Chengalvaraya Naidu v. Jagannath,. The Supreme Court held that the decree was vitiated by fraud as the party had suppressed the relevant documents. The learned Advocate for the respondent tried to draw support from this judgment in support of her point that in the present case also the petitioners had played fraud on her client's husband and therefore, the decree is vitiated. On the same point another Judgment of the Supreme Court in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd., was relied upon by her. In nutshell, the Supreme Court has held that if there is any forgery or fraud the final result would always be vitiated, as fraud and Justice never dwell together and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court has observed that objection of jurisdiction cannot be raised for the first time in execution if the question depends on investigation of facts. The objection should appear on the face of the record. (v) Nagarbhai Motibhai Makwana v.. The District Panchayat,- Notice of award under section (1) and (2) is not mandatory and would not vitiate the award. (vi) Champsey Bhara & Company b. Jivraj Balloo Spinning and Weaving Co., Ltd.,. - This judgment has been considered by the Supreme Court in one of the judgment referred hereinabove. I am, therefore, not going into the facts of the case. 11. Having heard the learned Advocates for both the parties and having carefully gone through the case law cited by them, it was utmost necessary for the to begin with the beginning of the matter i.e. the arbitration agreement between the parties. I am fully aware of the restricted and narrow parameters of my jurisdiction as an Executing Court. According to me, they are not as narrow as is suggested by Shri Thakore that I cannot look into any paper and I cannot touch any matter forming part of the proceedings. The running thread through all the aforesaid judgments cited by both the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he award is made in breach of the principles of natural justice and if the award is made in breach of the express terms of the contract. The learned Judges have clearly observed in para 30 of the judgment that enforceability of an award can be resisted even at the execution stage. They have gone one step further following the judgment of the Supreme Court that the Court has suo motu powers to set aside the award on grounds other than those covered by section 30. Para 36 of the judgment is pertinent for our purpose. It indicates that before the Arbitrator, the parties must file their statement and they need not be exactly as pleadings in strict or technical sense. The Arbitrator would know if there are drawn up terms of reference for his decision. Both the parties must place before the Arbitrator their respective documents and material in support of their respective case. It is, therefore, certainly implied that the Arbitrator must have the terms of reference and the statements of parties and also documentary and other material depending on the nature of the dispute or difference between the parties. It is further observed by the learned Judges that the Arbitrator is required to sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and principles which emerge therefrom the impugned award cannot stand judicial scrutiny of the Executing Court even for a minute. I may clarify here the point raised by Shri Thakore that the learned Single Judge of this Court has granted a decree in terms of the said award and that the said order was confirmed by the Division Bench of this Court in appeal. Both the Courts were called upon to grant a decree in terms of the award and no doubt a decree in terms of the award was granted. There is also no dispute that some of the contentions raised before me were also raised at that stage. According to me such a grant of decree does not debar or estop an Executing Court from testing the validity and legality of the award. Even a decree which is confirmed upto the Supreme Court can be questioned when it is to be in execution and the Executing Court can go into the contentions which are open to it under the law. Even the Division Bench had restricted itself only to examine ex facie illegality by observing, "Ex facie illegality, we discover none : We are not required to delve deep to discover such illegality or propriety in the petition". As an Executing Court, I am, however, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclose even primary material on the basis of which he had staked such a huge claim against the deceased. It is very significant to note that no account books, no income tax returns and other documents were produced before the Arbitrator. As no such documents form part of the arbitration proceedings, which are forwarded by the Arbitrator along with his affidavit, I safely presume that no such documents, account books, vouchers, receipts were produced before the learned Arbitrator. I am not able to understand how such a huge claim of more than Rs. 8 crores was lodged by Shri Jaimal Shah without any relevant account books and material. There is nothing on record before the Arbitrator on what basis he was entitled to claim the said amount. I further fail to understand if the aforesaid amount of Rs. 8 crores was due from the deceased Pandya, how he was satisfied with such a very small amount of Rs. 85 lakhs awarded by the Arbitrator. Shri Jaimal Shah has not challenged the said award. This aspect itself gives rise to a very strong suspicion about the genuineness of the dealings between the parties. There have been no account books, no signed or verified statements by the parties were b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which I reproduce for ready reference :- "We (1) VIPIN D. PANDYA of Bombay, Indian Inhabitant and (2) JAIMAL SHAH also of Bombay, Indian Inhabitant do hereby solemnly jointly severally declare and state as under :- We hereby declare that there has been disputes and differences between ourselves including our respective friends, relatives, firms, Companies and trust in regards several transactions etc. which have taken place between us and our respective friends etc. The names of the concerned parties are as per details shown in Schedule I hereto. We further declare that we have not been able to sort out the disputes and differences between our respective groups and have with the consultation of our said respective friends, relatives, firms. Companies, trust and have decided to settle the disputes by referring the same to the arbitration of Mr. Markand Gandhi, of M/s. Markand Gandhi & Co., Advocates & Solicitors, by signing simultaneously herewith an agreement of reference. We record that the said reference agreement is signed by both of us only representing our respective groups assuring each other that we have full irrevocable authority to do so and that it will be our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t additions and deductions without any ghost of particulars and names and signatures. Even from this statement nothing can be made out. Then there are two letters and a draft of arbitration agreement. It appears that this draft agreement was prepared by M/s. Parimal K. Shroff and Company. This draft contains some names and some details but it appears that parties did not approve and finalise the said draft giving some specifications and particulars for the reasons best known to them. Then we come to the award. Nothing can be very vague than this document. I am tempted to reproduce the entire document for ready reference and it would speak for itself. "I have pursuant to the reference perused the papers and accounts given to me. I also had several meetings with the parties both jointly and separately. I have also met one Parimal Shroff, Solicitor, one Shri Lalpuria C.A., Jai Chinai, an Advocate practising as Counsel, Suresh Shroff, Mr. Godha and Jayantibhal also who are all having some knowledge of the disputes under reference to me for one reason or the other, to find out the facts of the matter to come to conclusion in respect of the matters under reference and given an awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , his integrity, honesty were beyond any shred of doubt and therefore, their one line decision was accepted by all without any demur. In that cultural background Arbitrators were not required to speak out the reasons for their decisions. But with the changing times and erosion of values and fast weakening of moral fabric of our society the panchas of the old times have slowly started disappearing warranting the necessity and requirement to know the reasons for the decisions to avoid and to minimise growing arbitrariness in the arbitration proceedings. The Panchas have descended from their original high pedestal of the God or Angles to that of an ordinary human being with all the mundane temptations close to frail mind frame. In the process of justice we now cannot run any risk and risk the very justice itself by ignoring totally the basis part of the award. Even an unreasoned award must withstand the test of a reasonable man who would always put his step on some available ground to support. To determine a debt he would certainly base his decision on some account books before him. In our case the learned Arbitrator has not given any intelligible indications of the grounds to find ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Arbitrator from the salient features of the Award. He has to scrupulously observe them in his award. I am constrained to hold that the impugned award has totally failed to satisfy any of them. Every decision of a dispute must be a determination and not a mere ipse dixit of the Arbitrator or his speculative figure work, otherwise there will be no distinction between an award and an order of a don. A determination of a dispute or difference cannot be made in the absence of terms of reference or broad formulation of a dispute or difference with some reasonable specifications and particulars of claims with sufficient material in support of the respective contention and some discussion thereof in the Award. As observed in Indian Oil Corporation v. Indian Carbon Ltd., the Arbitrator must give some indications to indicate how his mind has acted. Similarly his view should fall in the category of "a possible view" and not "an impossible view." He should not act irrelevantly or unreasonably. The bare minimum expected from the Arbitrator is "a short intelligible indications of the grounds available to find out the mind of the Arbitrator for his action. The law does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow of the deceased Vipin Pandya, i.e. the respondent herein, wherein she has agreed to abide by the said award. The original arbitration agreement was between Jaimal Shah and the deceased Vipin Pandya. It appears that the signature of the respondent IIA Pandya is obtained thereon, may be, in the presence of two witnesses. That by itself will not give the label of legality, validity and sanctity to the award. The respondent has clearly stated on oath that Shri Jaimal Shah was visiting her premises time and again trying to pressurize her and that he had obtained her signature on the said writing under threat of dire consequences. From the nature of transactions between the parties, happening of such an event cannot be ruled out. 20. I, therefore, make the chamber summons absolute in terms of prayer clause (a). As I am dismissing the execution application no other prayers and no other chamber summons would survive. Hence the Chamber Summons Nos. 956 of 2000 and Chamber Summons No. 1251 of 2000 are hereby dismissed. Ad interim order dated 23.8.2000 to continue for further eight weeks. Needless to say that I have not decided the rights of the third party here. She will be free to pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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