Sanjay Kapur v. Vikram Kapur

1. This petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) has been filed by the petitioners inter alia praying for the following reliefs:- “a) Direct that the proceedings titled Bijender vs. Sanjay Kapur & Ors. pending in the Court of learned Assistant Collector, 1st Grade, Panipat shall remain stayed;” 2019:DHC:3363 O.M.P. (I) No.398/2015 Page 2

2. It is the case of the petitioners that by an MOU dated 08.01.1999, the three groups of legal heirs of Late Sh.Janki Das Kapur had agreed to split the ownership, management and / or control of the companies and assets of the family in three equal shares and to award one share to each of the three units/groups of the family. One of the properties was the Panipat Agricultural Farm land.

3. As certain disputes arose between the parties, the same were referred to the Arbitrator named in the MOU.

4. The Arbitrator passed an Award dated 01.11.2014, directing as under:

5. Learned senior counsel for the petitioners submits that as the Arbitrator by his Award dated 01.11.2014 did not deal with some of the assets of the family, including the Panipat Agricultural Land, the Award was challenged by the petitioners inter alia on this ground by way of a petition under Section 34 of the Act being OMP No.30/2015. He draws my reference to Ground V in the petition, which is reproduced hereinbelow:

“V. The impugned award is conspicuously silent about the division of the assets like Dalhausie property, Panipat land, Jankidas & Company (Departmental Store) etc. which were specifically mentioned in the Memorandum of Understanding dated 8th Jan 1999. It is relevant to point out that Jankidas & Company (Departmental Store), which is a partnership concern shut down its business operations many years back and a suit filed for dissolution of partnership and rendition O.M.P. (I) No.398/2015 Page 4 of accounts is pending adjudication before this Hon'ble Delhi Court being suit No.430/ 2004.”

6. The said petition was disposed of by this Court vide its order dated 03.08.2015, inter-alia observing as under:

7. The learned senior counsel for the petitioners submits that the above judgment has been challenged by the respondent no.1 by way of an appeal, which is pending adjudication. He submits that though in the said order it has been recorded that the petitioners had made it clear that they are not questioning the division already effected on the residential buildings or other units other than the Company and the Trusts in terms of the 1999 and 2003 MOUs and that the challenge is confined to the extent that it pertains to the management and control of the Company and the two Trusts, however, as the said order is pending adjudication in an appeal filed by the respondent no.1, this Court should await the decision in the appeal.

8. Learned senior counsel for the petitioners further submits that by an interim order dated 30.08.2014 passed by the Arbitrator during the arbitral proceedings, the Arbitrator had directed maintenance of status quo with respect to the agricultural land situated at Panipat and therefore, it is in the interest of justice that the same order be continued. O.M.P. (I) No.398/2015 Page 6

9. On the other hand, counsel for respondent no.9 submits that the respondent no.9 has purchased portion of land by way of a registered Sale Deed dated 11.04.2013. He submits that on purchase of the said share, the respondents have initiated proceedings for demarcation before the Asstt. Collector, Panipat, which has been stayed by this Court by the order dated 17.09.2015. He submits that this Court would lack jurisdiction to grant the prayer made by the petitioners in the present petition inasmuch as the respondent no.9 is a bona fide purchaser for consideration and in any case, the petitioners, as recorded in the order dated 03.08.2015, had given up their challenge to the division of property including the agricultural land at Panipat.

10. I have considered the submissions made by the counsels for the parties. At the outset, it is noted that this petition was filed on 04.08.2015. Learned senior counsel for the petitioners has not been able to show if the petitioners have during these last four years invoked the Arbitration Agreement between the parties. He submits that the petitioners are in fact awaiting the outcome of the appeal filed challenging the order dated 03.08.2015. I may only note that the petitioners have not filed the said appeal. The appeal has been filed by respondent no.1 and 2, who are aggrieved of the final direction. As far as the petitioners are concerned, their statement has been recorded in paragraph 52 of the order dated 03.08.2015, which has been O.M.P. (I) No.398/2015 Page 7 quoted hereinabove. Further, the Court in paragraph 85 of the order dated 03.08.2015 clarified that the portions of the Award so far as they relate to the division of the residential properties and other assets are not being interfered with as that was not pressed. What was the nature of this division and effect thereof has not been explained by the petitioners either in their pleadings or in their oral arguments.

11. Once the petitioners have given a concession that the property stands divided and are not questioning the same, what is the extent of that division and effect cannot be considered in the present proceedings especially when the petitioners have for the last five years not initiated any arbitration proceedings against Mr.Salil Kapur or persons claiming under him.