Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs 7257-7258 OF 2008
(Arising out of SLP© Nos.1957-1958 of 2008
Kailash Rani Dang ….. Appellant
Versus
Rakesh Bala Aneja & Anr. …..
Respondents
J U D G M E N T
HARJIT SINGH BEDI, J.
1. Leave granted.
th
2. These appeals arise out of the following facts: On 7
June, 1995 a partnership deed was executed between
Subhash Chander Aneja, since deceased, his son Amit Aneja
and the appellant Kailash Rani Dang, a cousin of Subhash
Chander Aneja, aforesaid with regard to the running of Alka
Cinema, situated at P-2, Sector-15 NOIDA. The shares in the
2
st
partnership were also delineated therein. On 21 July, 1998,
a family arrangement was entered into between Subhash
Chander and Kailash Rani, in which it was agreed that the
latter would get 50% of the earnings from the Cinema Hall as
well as from the commercial exploitation of the adjoining plot,
whereas 50% would go to the former. This agreement also
contained an arbitration clause whereby all disputes and
differences would be referred to the sole arbitration of Shri
Hans Raj Dang and on his non-availability, to the sole
arbitration of Dr. Amar Nath Kumar. Disputes having arisen,
nd
Kailash Rani vide her letter dated 2 July, 1999, invoked the
arbitration clause in the family arrangement by writing to Shri
Hans Raj Dang requesting him to act as the arbitrator. Shri
th
Hans Raj Dang, however, vide his letter dated 7 July, 1999
informed Kailash Rani that he would not be able to act as
such because of ill-health. Copies of these letters were sent to
the respondent Subhash Chander as well. Kailash Rani, in
th
these circumstances, wrote a letter dated 12 July, 1999 to
the alternate Arbitrator Dr. Amar Nath Kumar requesting him
to act as the arbitrator and also informing him that though the
3
cinema hall was bringing an income of Rs. 2.5 lacs per month,
she had not been paid a single penny on that account. Dr.
th
Amar Nath Kumar accordingly wrote a letter dated 17 July,
1999 to Kailash Rani calling upon her to file her statement of
th
claim before 25 July, 1999 and to send a copy thereof to
Subhash Chander, through registered post. He also called
upon Subhash Chander to file his reply to the statement of
th
claim by 2nd August 1999 and fixed 11.00 A.M. on 8 August,
1999 as the date and time of the hearing at a specified venue
rd
at Ghaziabad. On 23 July, 1999, Kailash Rani dispatched
her statement of claim by registered post to the Arbitrator as
well as to Subhash Chander. The receipt of this statement
was acknowledged by Subhash Chander by his
th
communication on 29 July, 1999 addressed to Kailash Rani
wherein he asked for the supply of certain documents, failing
which it would not be possible for him to file a reply to the
nd
statement of claim. Kailash Rani, vide her letter dated 2
August 1999, replied reminding Subhash Chander that the
documents he was seeking were already in his possession as
he was one of the executants thereto, but that in any case the
4
copies could be taken from the arbitrator during the course of
th
hearing on 8 August, 1999. Subhash Chander nevertheless,
through his Advocates, M/s. Sen & Sen addressed a
th
communication dated 7 August, 1999 to the arbitrator
denying the execution of any family arrangement dated
st
21 July, 1998 and again asking for the supply of the
documents referred to in the statement of claim, and further,
that the arbitration proceedings be deferred till all the
documents were in fact supplied. As a follow up to the
communication from his Advocates, Subhash Chander did not
th
appear before the Arbitrator on 8 August, 1999. The
Arbitrator, accordingly, addressed a letter to him pointing out
that his non-appearance justified the initiation of ex-parte
proceedings but another opportunity was being afforded to
him and further that Kailash Rani had undertaken to supply
copies of all documents relied upon by her on the next date of
hearing in his presence. The hearing was also fixed at 11.00
th
A.M. on 25 August, 1999. Subhash Chander however did not
th
appear before the Arbitrator on 25 August, 1999 as well and
after waiting till 2.00 P.M. on that date the Arbitrator ordered
5
ex-parte proceedings and thereafter passed an ex-parte Award
against him. A copy of the Award was sent by the Arbitrator
to both parties through speed post; the copy of the Award
being addressed to Subhash Chander at his business address,
Alka Cinema, P-2, Sector -15, NOIDA. The Postman visited
th
the cinema premises on 30 August, 1999 but Subhash
Chander was not present. The Postman went to the address
again the next day but Subhash Chander refused to receive
the registered envelope, though the name of the sendor Dr.
Amar Nath Kumar, the Arbitrator stood written thereon. The
Postman accordingly returned the envelope to the sender with
st
an endorsement of refusal dated 31 August 1999. Kailash
th
Rani thereafter (on 7 April, 2000) filed an Application in the
Court of the District Judge, Gautam Budh Nagar for the
execution of the Award. Subhash Chander at this stage filed
an Application under Order 21 Rule 26 of the Code of Civil
Procedure in the Executing Court seeking a stay of the
execution proceedings, and denying any knowledge of the
th
passing of the Award dated 25 August, 1999 and also, inter
alia, pleading that though he had not appeared before the
6
th
Arbitrator on 25 August, 1999, one Mishra, his Manager, had
done so on his behalf, who, after having waited for an hour,
had found neither the appellant nor the Arbitrator present, on
which he had gone away and that this fact had been
communicated to the Arbitrator by Registered post on
th
6 September, 1999. He also filed an application dated
th
28 November 2000 under Section 34 of The Arbitration and
Conciliation Act, 1996 (hereinafter referred to as “the Act”)
th
praying that the ex-parte Award dated 25 August, 1999 be
set aside emphasizing therein that he had received a copy of
th
the Award only on 7 October, 2000 during the course of the
th
execution proceedings. Subhash Chander expired on 29
November 2000 and is now represented by his L.Rs including
respondent No. 1 Rakesh Bala Aneja, his widow. Kailash
Rani, in response to the aforesaid objection petition, filed a
reply pleading that it was time barred and raising several
objections on merits as well. The District Judge – the
Executing Court, thereafter, called upon the parties to
produce their evidence. The statement of the Postman
th st
Dharam Pal, who had tendered the envelope on 30 and 31
7
August, 1999 which Subhash Chander had refused to accept
was recorded. The Court accordingly concluded that as
Subhash Chander had refused to accept the notice from the
Postman he was deemed to have been served and as such the
application under Section 34 was clearly beyond time as the
maximum time permissible for such an application was 90
days. The objection petition was, thus, dismissed. Rakesh
Bala filed a Revision Petition in the Allahabad High Court
which set aside the order of the Executing Court vide the
th
impugned judgment dated 13 November 2006, which to us,
suffers from some basic contradictions. This is what the
Court had to say:
“It is true that in usual course if
the entry of refusal of service of the
award is made by the Postman it is
to be accepted by the Court as correct.
In this view of the matter the present
objections are to be found presented
after the expiry of the limitation period
provided for the purpose. The service
of award upon a party who is definitely
aggrieved by the same is not a matter
to be viewed very lightly. The service
is not a mere formality and it is a
matter of substance. The termination
of an arbitral proceedings are always
subject to certain conditions and it is
8
also subject to provisions of Section 33
& 34 of the Act. In fact the delivery of
award to a party has to be effective
after the same has been received by
the said party. This delivery actually
has the effect of conferring ‘certain
rights upon the parties as also
bringing to an end the right to exercise
those rights on expiry of the period of
limitation’. Therefore, the delivery of
the copy of the award made is
something which is very substantial
for the parties. The mere entry of
refusal of acceptance by the Postman
upon the registered envelope should
not be given so much importance as to
shut the entire available avenues for
the redressal of his grievance of a
party which has been quite adversely
effected by it.”
In support its observations the High Court relied on the
judgment of this Court in Union of India vs. Tecco Trichy
Engineers and Contractors (2005) 4 SCC 239 . It was
accordingly held that the date of receipt of the Award by
th
Subhash Chander would be deemed to be 11 October 2000
and as such the application under Section 34 of the Act was
within time. Kailash Rani filed a review application against the
th
judgment dated 13 November, 2006 but it too was dismissed
9
th
on 7 August 2007. Faced with this situation, Kailash Rani is
before us in the present appeals, both against the orders
th th
dated 13 November 2006 and 7 August 2007.
3. Mr. Arun Jaitley, the learned senior counsel for the
appellant has raised several arguments during the course of
hearing. He has first pointed out that Subhash Chander, the
deceased respondent, had always adopted an indifferent
attitude towards the arbitration proceedings inasmuch that
though he had knowledge of the proceedings he had
th
deliberately stayed away on the 25 August 1999 when he, as
per his own statement, had not appeared before the Arbitrator
but had sent his Manager Mishra instead, though even his
alleged appearance was an afterthought. He has also pointed
out that Subhash Chander in his objection petition had
denied the execution of the family arrangement dated 21st
July 1998 though the execution of the partnership deed which
th
was, in fact, the parent document executed on 7 June 1995
had not been denied and this too, and the fact that the
appellant Kailash Rani though entitled to 50% of the income
from the cinema had not received even a penny on that
10
account, was the reason for his recalcitrant attitude. He has
pleaded that it is in this background that the matter would
have to be examined even with regard to the receipt of a copy
st
of the award by him on 31 August 1999, as held by the
th
executing court or on the 11 of October 2000 as observed by
the High Court. In this connection, Mr. Jaitley has then
brought to our notice the statement of Dharam Pal PW1, the
postman who deposed that he had visited Alka Cinema on the
th
30 August 1999 and after finding Shri Aneja absent he had
again visited the next day but the latter had refused to accept
the envelope on which he had made an endorsement to that
effect and returned the unsealed envelope to the sender.
Reliance has also been placed on Section 3 of the Act which
talks about the receipt of written communications, to support
the argument that as the envelope had been addressed to the
very address, which was the subject matter of the business
and the partnership, it was deemed to have been served. Mr.
Jaitley has also distinguished the judgment of this Court in
Tecco Trichy Engineers (supra) and submitted that it had no
applicability to the facts of the present matter.
11
4. Mr. Ranjeet Kumar, the learned senior counsel for the
respondent has, however, pointed out that the execution of
th
the family arrangement dated 7 June 1995 had been denied
by him and as the service of the award was a matter of great
moment and with deep ramifications for him and his family,
there was no reason as to why he would not have filed his
th
objections had he been served on the 30 August 1999 or
st
31 August 1999, as alleged. He has also pleaded that
Subhash Chander had asked for several documents by his
th
communication dated 29 June 1999 and the request had
th
been reiterated on 7 August 1999, and as the said
documents had not been supplied, he had advisedly stayed
away from the arbitration proceedings. It has also been
st
submitted that as per the family arrangement dated 21 July
1998, the sole learned arbitrator was Shri Hans Raj Dang and
in his absence Dr. Amar Nath Kumar and that there was no
evidence to show that the former had, at any stage, been
approached to assume the role of arbitrator and as such the
very initiation of proceedings before the latter was not in
order. He has also pleaded that in any case the
12
presumptions, if any, raised on account of Section 3 of the Act
th
had been dispelled by the certificate dated 26 August 2003
issued by the Manager of Hotel Shakti, Allahabad to the effect
that Subhash Chander Aneja had checked into the hotel at
th
8.10 a.m. on 30 August 1999 and had checked out
st
on the 31 of August 1999 at 8.35 p.m. to submit that on both
dates when the postman had allegedly visited the premises of
Alka Cinema in Noida, Subhash Chander Aneja had been in
Lucknow and the postman’s statement was, thus, a complete
lie. Mr. Ranjeet Kumar has placed reliance on Tecco Trichy
Engineers (supra) and, in addition, on Oil & Natural Gas
Corporation Ltd. Vs. Saw Pipes Ltd. ( 2003) 5 SCC 705 in
support of his submissions.
5. We have heard the learned counsel for the parties and
gone through the record. We reproduce herein-under Section
3 of the Act:
“Sec.3. Receipt of written
communications. –(1) Unless otherwise
agreed by the parties-
(a) any written communication is
deemed to have been received if it is
delivered to the addressee
personally or at his place of
13
business, habitual residence or
mailing address, and
(b) if none of the places referred to in
clause (a) can be found after making
a reasonable inquiry, a written
communication is deemed to have
been received if it is sent to the
addressee’s last known place of
business, habitual residence or
mailing address by registered letter
or by any other means which
provides a record of the attempt to
deliver it.
(2) The communications is deemed to have
been received on the day it is so
delivered.
(3) This section does not apply to written
communication in respect of proceedings
of any judicial authority.”
6. A bare perusal of the aforesaid provisions would reveal
that if a written communication is delivered to the addressee
personally at his place of business, it shall be deemed to have
been received by him on the day it was delivered. Admittedly,
a copy of the award had been sent to Subhash Chander at the
Alka Cinema which was, in fact, the property which was the
subject matter of the partnership business between the
14
parties. In this view of the matter, the statement of the
postman Dharam Pal becomes extremely relevant wherein he
th
deposed that on the 30 August 1999, Subhash Chander had
not been present in the cinema premises and that on the next
day he had refused to receive the communication even when
tendered to him which fact had been endorsed by him on the
envelope which had then been returned to the sender.
We are, thus, of the opinion that by virtue of sub-clause (a) of
Section 3 (1) read with Section 3(3), a presumption that the
document had indeed been delivered is writ large on the facts
of the case. Mr. Ranjeet Kumar has, however, drawn our
attention to the certificate issued by Hotel Shakti. We find
th
that this document is dated 26 August 2003 that is about
four years after the event. Moreover, it is significant that in
the objections filed in the executing court, no reference
whatsoever had been made to this communication and, even
more significantly, it had been produced in the Executing
Court for the first time during the course of arguments. We
are, therefore, of the opinion that this document is an
afterthought and created with the object of strengthening the
15
submission that the copy of the award could not have been
delivered to Subhash Chander as he had been absent from the
cinema on the two crucial dates.
7. Mr. Ranjeet Kumar’s reliance on Tecco Trichy
Engineers case (supra) to our mind is tenuous. In this
matter, the Southern Railways had entered into a contract
and a dispute having arisen, the matter was referred to
th
arbitration. The Tribunal gave its award on the 10
th
March 2001/11 March 2001 and a copy of the award was
delivered in the office of the General Manager, Southern
th
Railway on 12 March 2001 and an acknowledgement of its
th
receipt was given by some clerk. On 10 July 2001, the Chief
Engineer presented an application for setting aside of the
award and also an application for condonation of delay under
Section 34(3) of the Act. The application for condonation of
delay was contested by the contractor as being beyond
limitation. The objection found favour with the learned Single
Judge of the High Court who rejected the application holding
it as barred by limitation. This decision was upheld by the
Division Bench leading to the filing of an appeal in this Court.
16
This Court set aside the aforesaid judgment and while doing
so observed that the Ministry of Railways was a very large
conglomerate with several divisions and sub-divisions headed
by senior officers and the General Manager being at the apex
of the administration of the division was responsible for laying
down the policy and taking broad strategic decisions and was
not involved in the day-to-day management and operations of
the different departments and that it was only departmental
head, who was directly connected with a particular dispute
who would know what the matter was about. This is what the
Court had to say:
7. It is well known that the Ministry
of Railways has a very large area of
operation covering several divisions,
having different divisional heads and
various departments within the division,
having their own departmental heads.
The General Manager of the Railways is
at the very apex of the division with the
responsibility of taking strategic
decisions, laying down policies of the
organisation, giving administrative
instructions and issuing guidelines in the
organisation. He is from elite managerial
cadre which runs the entire organisation
of his division with different departments,
having different departmental heads. The
day-to-day management and operations
17
of different departments rests with
different departmental heads. The
departmental head is directly connected
and concerned with the departmental
functioning and is alone expected to
know the progress of the matter pending
before the Arbitral Tribunal concerning
his department. He is the person who
knows exactly where the shoe pinches,
whether the arbitral award is adverse to
the department’s interest. The
departmental head would naturally be in
a position to know whether the arbitrator
has committed a mistake in
understanding the department’s line of
submissions and the grounds available to
challenge the award. He is aware of the
factual aspect of the case and also the
factual and legal aspects of the questions
involved in the arbitration proceedings. It
is also a known fact and the Court can
take judicial notice of it that there are
several arbitration proceedings pending
consideration concerning affairs of the
Railways before arbitration. The General
Manager, with executive workload of the
entire division cannot be expected to
know all the niceties of the case pending
before the Arbitral Tribunal or for that
matter the arbitral award itself and to
take a decision as to whether the arbitral
award deserves challenge, without proper
assistance of the departmental head.
9. In the context of a huge
organisation like the Railways, the copy
of the award has to be received by the
person who has knowledge of the
18
proceedings and who would be the best
person to understand and appreciate the
arbitral award and also to take a decision
in the matter of moving an application
under sub-section (1) or (5) of Section 33
or under sub-section (1) of Section 34.
10. In the present case, the Chief
Engineer had signed the agreement on
behalf of the Union of India entered into
with the respondent. In the arbitral
proceedings the Chief Engineer
represented the Union of India and the
notices, during proceedings of the
arbitration, were served on the Chief
Engineer. Even the arbitral award clearly
mentions that the Union of India is
represented by the Deputy Chief
Engineer/Gauge Conversion, Chennai.
The Chief Engineer is directly concerned
with the arbitration, as the subject-
matter of arbitration relates to the
department of the Chief Engineer and he
has direct knowledge of the arbitral
proceedings and the question involved
before the arbitrator. The General
Manager of the Railways has only
referred the matter for arbitration as
required under the contract. He cannot
be said to be aware of the question
involved in the arbitration nor the factual
aspect in detail, on the basis of which the
Arbitral Tribunal had decided the issue
before it, unless they are all brought to
his notice by the officer dealing with that
arbitration and who is in charge of those
proceedings. Therefore, in our opinion,
service of the arbitral award on the
General Manager by way of receipt in his
19
inwards office cannot be taken to be
sufficient notice so as to activate the
department to take appropriate steps in
respect of and in regard to the award
passed by the arbitrators to constitute
the starting point of limitation for the
purposes of Section 34(3) of the Act. The
service of notice on the Chief Engineer on
19-3-2001 would be the starting point of
limitation to challenge the award in the
Court.
11. We cannot be oblivious of the
fact of impersonal approach in the
government departments and
organisations like Railways. In the very
nature of the working of government
departments a decision is not taken
unless the papers have reached the
person concerned and then an approval,
if required, of the competent authority or
official above has been obtained. All this
could not have taken place unless the
Chief Engineer had received the copy of
the award when only the delivery of the
award within the meaning of sub-section
(5) of Section 31 shall be deemed to have
taken place.
As would be evident, no analogy between the case before us
and the above cited case exists. The second judgment relied
upon by Mr. Ranjeet Kumar i.e. Oil & Natural Gas
Corporation Ltd. Vs. Saw Pipes Ltd. (2003) 5 SCC 705
20
deals with the general policy pertaining to certain kinds of
arbitration agreements and has nothing to do with the
question posed before us. We, therefore, find that Mr. Ranjeet
Kumar’s arguments based on these two cases are misplaced.
8. A discussion on this aspect would be incomplete without
a reference to the obstructionist attitude of Subhash Chander
during the course of the arbitration proceedings. It is
significant that though the execution of the family
arrangement has been denied, the fact of the partnership deed
qua Alka Cinema has not been denied. It is also clear that
the cinema was under the complete and effective control of
Subhash Chander and is now under the control of his legal
representatives and that nothing has been paid to Kailash
Rani on account of the income of the partnership. It has been
submitted by Mr. Ranjeet Kumar that Subhash Chander had
not appeared before the arbitrator as the documents referred
to in the statement of claim had not been supplied despite
several requests. Some facts, however, bear re-capitulation
and they would be best put as in the award wherein the
arbitrator observed as under:
21
“In pursuance of the Arbitration
Clause, Smt. Kailash Rani Dang, since
she was aggrieved by the acts and
omissions of Shri S.C. Aneja referred the
matter to the Arbitration of Shri Hans Raj
Dang who refused to arbitrate due to his
illness and other personal reasons by
means of his letter dated 7.7.1999.
Accordingly, Smt. Kailash Rani
Dang, referred the matter to my
arbitration by means of letter dated
12.7.99.
I, there upon entered into the
reference and by means of letter dated
17.7.99 called upon Smt. Kailash Rani
Dang to send or to file a detailed
statement of her claims before me latest
by 25.7.99 and send a copy thereof to
Shri S.C.Aneja through registered post.
Shri S.C.Aneja was also called upon to
send or file the reply of statement of the
claim by 2.8.99. I also fixed 8.8.99 as the
date of hearing at 11 A.M. at the following
address:
KH-219, New Kavi Nagar,
Ghaziabad (U.P.).
Smt. Kailash Rani Dang filed her
statement of claim in time and sent a
copy thereof to Shri S.C.Aneja by
registered post.
However, Shri S.C.Aneja did not
send any reply to the statement of claim.
By means of letter dated 29.7.99
addressed to Smt. Kailash Rani Dang
along with copy endorsed to me, Shri
22
S.C. Aneja acknowledged the receipts of
the letters regarding statement of claim
etc., but requested Smt. Kailash Rani
Dang to send him the Photostat certified
copies of the family arrangement and the
partnership deed to him as well as to his
wife.
Later on by means of letter dated
7.8.99 M/s. Sen & Sen Advocates on
behalf of their client S.C.Aneja requested
to supply the documents to their client
th
while acknowledging 8 Aug.99 as the
date of hearing and requested to refer the
arbitration proceeding till the documents
are received by their client.
It will not be out of place to mention
here that by means of letter dated 2.8.99
sent through speed post addressed to
Shri S.C.Aneja and copy endorsed to me,
Smt. Kailash Rani Dang informed that
the documents shall be produced before
the Arbitrator and that Shri S.C. Aneja is
free to inspect and get the copies from
Dr.Amar Nath Kumar on that date i.e.
8.8.99 accordingly.
Inspite of the full information and
knowledge about the date fixed hearing
i.e. 8.8.99 Shri S.C.Aneja remained
absent on the date and did not appear to
participate in the proceeding or to obtain
copies of the documents Smt. Kailash
Rani Dang remained present on that
date, I also waited upto 2 p.m., but in
vain.
23
To give one more opportunity to Shri
S.C. Aneja I fixed another date i.e.
25.8.99 as the next date of hearing
specially mentioning therein that Smt.
Kailash Rani Dang has offered to supply
to Shri S.C.Aneja copies of the
documents relied upon by her on the
next date of hearing i.e. 25.8.99 in my
presence as Arbitrator. By means of letter
dated 8.8.99 sent through Speed Post.
And I also fixed the following Venue as
the place of hearing at 11 a.m. on
25.8.99:-
14, Old Navyug Market,
Ghaziabad (U.P.).
A copy of the said letter was also
sent to Sen & Sen Advocates and
Consultants, B-12, Nizamuddin West,
New Delhi with reference to their letter
dated 7.8.99.
On 25.8.99 Smt. Kailash Rani Dang
appeared and filed the following
documents in support of her claim:
1. Partnership deed in original dated
7.6.1995.
2. Family arrangement in original
dated 21.7.1998
3. Copy of affidavit filed by Shri
S.C.Aneja in the High Court.
24
4. Copy of letter of reference dated
2.7.99 to Shri Hans Raj Dang.
5. Copy of letter of Shri Hans Raj Dang
dated 7.7.99 expressing his inability
to arbitrate.
I waited upto 2 p.m. on 25.8.99 for
Shri S.C.Aneja to appear but nobody
appeared on his behalf. Thus, it is
established that Shri S.C.Aneja only
wanted to delay the proceedings and he
deliberately absented himself in the
hearing and accordingly, I was left with
no option but to proceed/continue with
the arbitration proceedings in his
absence.”
Nothing more needs be said about Subhash Chander’s
conduct in the face of these serious indictments by the
arbitrator.
9.In view of the above observations, and the fact that no
misconduct has been alleged against the arbitrator, we must
take it as proved that Subhash Chander had deliberately
stayed away from the arbitration proceedings in order to
frustrate and delay the claim of Kailash Rani.
25
10. Mr. Ranjeet Kumar, as already indicated above, has also
challenged the very appointment of the arbitrator and has
referred us to the family arrangement under which Shri
Hans Raj Dang had been named as the sole arbitrator and
on his refusal Dr. Amar Nath Kumar, to suggest that as no
request had been made to Shri Hans Raj Dang and as there
was no refusal on his part, the appointment of the alternate
arbitrator was not justified. This matter has been dealt with
by the arbitrator in his award, but we have re-examined the
matter ourselves. We find from the record that Kailash Rani
nd
had addressed a letter dated 2 July 1999 to Shri Hans Raj
Dang to arbitrate in the dispute and, he had, by his letter
th
dated 7 July 1999, refused to accede to the request
because of ill health and that a copy of this letter had also
been endorsed to Subhash Chander. Faced with this
th
situation, Kailash Rani had written letter dated 12 July
1999 requesting Dr. Amar Nath Kumar to act as the
arbitrator which request had been accepted. The facts
stated above have not been denied by Subhash Chander at
any stage. It must, therefore, be taken that the aforesaid
26
communications had indeed been exchanged. Moreover,
st
even assuming that the family arrangement dated 21 July
1998 had not been executed and a dispute on facts had to
be raised, Subhash Chander ought to have done so before
the arbitrator and a boycott of the proceedings was
unjustified. We, therefore, find no flaw whatsoever in the
conduct of the arbitration proceedings by Shri Amar Nath
Kumar.
11. The judgment of the High Court cannot, to our mind, be
sustained. We, accordingly, allow Civil Appeal No. 7258 of
2008 arising out of SLP© No. 1958 of 2008, set aside the
judgment of the High Court and restore that of the Executing
st
Court dated 31 October 2006. Civil Appeal No. 7257 of 2008
arising out of SLP© No. 1957 of 2008 is rendered infructuous.
There will be no order as to costs.
……………………………J.
(DALVEER BHANDARI)
…………………………….J.
(HARJIT SINGH BEDI)
New Delhi,
Dated: December 12, 2008