Prakash Chand Meena v. Nitin Khurana

1. Exemption is allowed, subject to all just exceptions. CM APPL. 54750/2022 (for exemption)

2. The application stands disposed of.

3. The petitioner challenges the arbitration award dated 08.06.2010 passed in Arbitration Case No. 10/2010. Learned counsel appearing for the petitioner draws the attention of this Court to the notice dated 17.02.2010 issued by the Arbitrator to the petitioner, requiring the petitioner to answer the statement of claims as filed by the respondent. Learned counsel submits that subsequently, the impugned award was passed by the Arbitrator after contest. CM(M) 1422/2022 & CM APPL. 54749/2022 (for stay) CM(M) 1422/2022 2

4. The challenge to the said award by the learned counsel for the petitioner is predicated on the submission that the said award was never served upon him and, therefore, there was a procedural irregularity committed by the Arbitrator, which needs interference by this Court.

5. Learned counsel draws the attention of the Court to page 79 of the paper book, which is a notice dated 07.05.2010 issued by Advocate for the respondent in the form of notice to produce documents whereby, the respondent sought the original arbitration agreement, which was alleged to be in the possession of the petitioner.

6. Learned counsel for the petitioner submits that the aforesaid statement in notice dated 07.05.2010 would amount to admission on the part of the respondent to the effect that the proceedings under the Arbitration Act, 1996, were commenced without the original arbitration agreement being placed before the Arbitrator, which irregularity would be fatal to the arbitration proceedings.

7. Learned counsel submits that in view of the above facts, which are undisputed, this Court ought to interfere in the impugned award and if required, set it aside.

8. Learned counsel for the petitioner relies upon the judgment of the Supreme Court in Civil Appeal No. 14665/2015 Bhaven Construction Through Authorised Signatory Premjibhai K. Shah vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. & Anr. 2022 1 SCC 75. The same is taken on record.

9. Per contra, learned counsel appearing for the respondent, who appears on advance notice submits that the petitioner has concealed material facts and has not approached this Court with clean hands. CM(M) 1422/2022 3

10. Learned counsel for the respondent draws the attention of this Court to page 116 of the paper book to submit that much water had flown after the award was passed and the petitioner cannot feign ignorance of the subsequent events, which transpired post passing of the impugned award.

11. Respondent had filed criminal complaint under Section 156(3) Cr.P.C. and while those were pending, there was a settlement which was drawn up before the Mediation Centre at the District Court, Saket, whereby vide the proceedings dated 24.04.2018, full and final settlement in respect of the disputes was recorded.

12. According to the settlement terms, the disputes would stand resolved finally, if the petitioner would pay to the respondent a total sum of Rs. 36 Lakhs, to be paid in different installments, the last being on 20.06.2018.

13. Learned counsel submits that the petitioner actually end up paying Rs. 3 Lakhs and defaulted on its commitments to pay balance of the Rs. 36 Lakhs as agreed and settled before the Mediation Centre.

14. Learned counsel for the respondent submits that the conduct of the petitioner as well as the fact that he was aware of the passing of the arbitration award, cannot be disputed in view of the fact that the settlement terms itself was on the basis of the inter se disputes adjudicated vide the arbitration award. Thus, this claim of not having received the impugned award is false to the knowledge of the petitioner.

15. This Court has heard both the learned counsel and perused the pleadings as well as documents filed by the petitioner on record and is of the considered opinion that the petition deserves dismissal for the following reasons:- CM(M) 1422/2022 4 (a) The first and foremost issue which comes to the mind of this Court is the admission that in the year 2017, petitioner became aware of the impugned award passed in 2010 and yet, no steps in accordance with law were ever taken by the petitioner to redress his grievances. Having failed to undertake the legal steps, as provided under law, the petitioner is precluded from seeking interference under Article 227 of the Constitution by this Court, inasmuch as a party once having neglected to take the legal steps cannot be found to question the valid award, which was passed in the year 2010. (b) Another relevant aspect which has been considered by this Court is the settlement agreement and the proceedings dated 24.04.2018 whereby the petitioner had entered into an agreement to pay a total sum of Rs. 36 Lakhs, as full and final settlement towards all disputes. The petitioner does not dispute this document nor the statement made by the petitioner himself. Having the regard thereto, the petitioner is precluded from approaching this Court under its supervisory jurisdiction to contend that there is jurisdictional error or that the Arbitrator has acted with material irregularity requiring interference by this Court, inasmuch as he was fully aware of the proceedings that he ought to have undertaken after having come to know about the impugned award.