Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
In my view, the filing of the pleadings stating facts supporting claim, the points at issue and the relief or remedy sought is mandatory and is in compliance with the principles of natural justice. The opponent is always entitled to know the case of the rival party and the reliefs sought by him to enable him to deal with such allegations and to seek the counter relief, if any. No party can seek any relief orally before the learned arbitrator and has to plead his case in writing. In my view provision for filing of pleadings stating facts points at issue and reliefs or remedy sought is not derogable and thus there is no question of waiver under section of theArbitration Act.
77. " The learned Arbitrator in my view has committed patent illegality but not allowing the parties to file pleadings so as to indicate their case and reliefs sought. The impugned award is thus in violation of section 23 of the Arbitration Act, 1996 and deserves to be set aside on this ground alone. In my view, since the award made by the learned arbitrator is not in accordance with provisions in Part-I, such arbitral award can be set aside under section 34 (2) (a) (v) of the Arbitration Act.
78. In view of this unexplained gross delay in rendering the arbitral award of more than three years, the case of the petitioner was seriously prejudiced. Since the learned arbitrator did not fix any hearing and did not follow any procedure though repeatedly requested by the petitioner, the impugned order award deserves to be set aside on this ground also.
79. The respondent was exchanging the correspondence with the learned arbitrator behind the back of the petitioner. Though the petitioner was requesting the learned arbitrator even during the said period of three years to fix an early date of hearing and to follow the procedure, the learned arbitrator did not inform the petitioner that he was not declaring the award in view of the pending negotiations between the parties.
80. In my view, the learned arbitrator could not have visited the place of residence of the petitioner when the matter was subjudice and that also without issuing any notice to the petitioner in advance on the request of the respondent.
81. This Court in the case of Amrutlal Tirathram Gupta (supra) app306.6.423.12 has held that an arbitrator cannot consult anybody behind the back of the parties and even if the arbitrator wants to consult somebody then that person has to be called as witness. In my view, the judgment squarely applies to the facts of this case.
83. Even if it is held that under the arbitration agreement entered into between the parties the learned arbitrator could have held meetings with such intervenors, the information obtained by the learned arbitrator could not have been used as evidence unless it was brought to the notice of the parties and an opportunity ought to have been given to the petitioner to deal with the same.
85. In my view, the issue in respect of flat was subjudice before the Cooperative Court and the parties including the learned arbitrator having decided not to decide that matter, the learned arbitrator could not have adjudicated upon the issue in respect of the said flat. In my view, the award on that issue on the face of it is without jurisdiction and contrary to the agreement arrived at between the parties.
86. In my view, none of the parties had produced copy of such alleged will before the learned arbitrator. Even otherwise the said alleged will of Mrs Kankuben could not have been taken into consideration for the purpose of deciding the rights of the parties in respect of the said flat. Learned arbitrator in my view has exceeded his jurisdiction by referring to the alleged testamentary document and deciding the said issue based on the said alleged will and bequest alleged to have been made therein.
88. Learned arbitrator in paragraph 2.25 has referred to such confirmation alleged to have been obtained form those intervenors and has recorded a finding that all such intervenors had agreed that the petitioner was not pressurized to agree to the payment of Rs.12.51 lacs to the respondent. It is not the case of the respondent that the said intervenors were produced as witness by any of parties or were called in the arbitration meeting in presence of the petitioner.
Learned arbitrator did not disclose to the petitioner about the alleged information obtained by him from those intervenors. Award is in violation of principles of natural justice.
Bombay High Court
Nitin Harjivandas Rajyagor vs Rajesh Pravinchand Rajyagor on 14 June, 2016
Bench: Anoop V. Mohta
Citation:2016(6) MHLJ 634
