The court held that once an arbitral award is fully executed, a party cannot seek rescission of the underlying contract under Section 28 of the Specific Relief Act.

ORDER :

C.M. Poonacha, J.

The present Writ Petition is filed seeking for the following reliefs:

"a) Issue a writ of mandamus or any other appropriate directions to the Resp. No.2 to takeup the application (Annexure-D) filed by the petitioners under section 28 of Specific Relief Act in the Arbitration case no.CMP.83/2006 for consideration and disposal in accordance with law;

b) Pass any other appropriate order or directions as this Hon'ble court deems fit on the facts and circumstances of the case."

2. The relevant facts necessary for consideration of the present petition are that the first petitioner entered into a Memorandum of Understanding, dated 24.2.2023 [Hereinafter referred to as the 'MOU'] with the first respondent. Due to certain disputes that arose between the parties from the said MOU, arbitration proceedings in CMP No.83/2006 was initiated before the second respondent - the Sole Arbitrator, Hon'ble Mr. Justice Patri Basavanagoud (Retd.,) Hereinafter referred to as the 'Arbitral Tribunal'], wherein the first respondent was the claimant and the first petitioner was the respondent represented by his Power of Attorney Holder - the second petitioner. Vide Award dated 17.12.2012 the Arbitral Tribunal held that the first respondent was entitled to specific performance of the MOU and passed the following order:

"In the above circumstances, the claimant is hereby held to be entitled to specific performance of the agreement dated 24.2.2003. Respondent, having already got an extent of 1 acre 1 gunta converted for residential purposes by the order dated 5.3.2003 passed by the Special Deputy Commissioner, Bengaluru, shall pay the development charges to the Municipal Authority concerned, get his name entered in the katha and then shall execute sale deed in favour of the claimant or its nominees, shall deliver the original title deeds and shall also put the claimant in possession of the said land on receipt of the balance of sale consideration from the claimant at Rs. 310/- psf., failing which, the claimant shall get the same done through a Commissioner to be appointed by the Court executing this award. Respondent shall also bear the expenses of this arbitral proceedings. This Arbitral proceeding hereby stands terminated."

3. The first respondent instituted Execution Case No.1764/2013 to execute the said arbitral Award and pursuant to the order passed by the Executing Court, the registered Sale Deed dated 23.2.2021 was executed through the Court Commissioner in favour of the first respondent in terms of the arbitral Award dated 17.12.2012.

4. The arbitral Award dated 17.12.2012 was challenged under Section 34 of the Arbitration and Conciliation Act, 1996 [Hereinafter referred to as the 'Arbitral Tribunal'] in Com.A.S.No.149/2018 before the LXXXVII Additional City Civil and Sessions Judge (exclusive dedicated Commercial Court) at Bengaluru (CCH-88).[ Hereinafter referred to as the 'Commercial Court'] Vide order dated 1.7.2021 the said Com.A.S.No.149/2108 was dismissed. Being aggrieved, COMAP.No.251/2021 was filed by the second petitioner under Section 13(1-A) of the Commercial Courts Act, 2015[Hereinafter referred to as the 'Act of 2015'] before this Court. A coordinate Bench of this Court vide judgment dated 30.6.2022 dismissed the said appeal. The said judgment dated 30.6.2022 passed in COMAP.No.251/2021 was challenged in SLP (C) No.32794/2022 before the Hon'ble Supreme Court, which was dismissed vide order dated 6.1.2023.

5. Subsequently, the petitioners preferred an application under Section 47 r/w 151 of the CPC in EP No.1764/2013. The Executing Court by order dated 16.11.2022 dismissed the said application. Being aggrieved, the petitioners preferred CRP No.602/2022 before this Court. Vide order dated 13.2.2023 the said Revision Petition was dismissed.

6. Subsequently, the petitioners filed an application under section 28 of the Specific Relief Act, 1963[Hereinafter referred to as the "Act of 1963"] before the Arbitral Tribunal. Alle