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2000 Supreme(Bom) 843

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Jaimal Shah.... Petitioner.
Versus
Ila Pandya.... Respondent.
Chamber Summons No. 1188 of 2000 in Execution Application (L) No. 323 of 2000 in Arbitration Petition No. 274 of 1998, decided on 7-11-2000.
Advocates appeared :
Thakore i/b. Thakore Jariwala Associates, for petitioner.
Ms. F. Sethna Ms. A. Nadar i/b. Dunmorr Sett, for respondent.

Headnote:Sections 33 and 17-Challenge in decree an award-Ground-Non-application of mind-Award issued without considering facts of Acts-Principles of justice to be followed-Award not being well thought liable to be set aside being shabby-Accordingly attachment etc. raised but stayed.- The award has no bottom to base and no legs to stand. According to me, it would be travesty of justice to allow such an award to be enforced against the widow of the deceased Pandya and even against his property and/ or her property. Though the award has become a decree in the drifting course of law, my conscience is not at all satisfied to allow execution of such a blatantly invalid and perverse award. This award has its own undercurrent of underground dealings, which can have sensed from the number of factors which I have already discussed. According to me no reasonable man having a little common sense and prudence would deal with the matter in such a shabby manner. According to me, this award cannot be executed and cannot be enforced. The execution application, therefore, stands dismissed and warrant of attachment is hereby quashed and set aside.

JUDGMENT - R.J. KOCHAR, J.:---The respondent abovenamed has filed the present chamber summons seeking a direction to dismiss the above execution application. She has further sought a declaration that she is not liable to pay the decretal amount in her personal capacity. She has also sought a direction to the petitioner to make a full and complete disclosure as to the persons/entities/companies, the petitioner claims to represent in the execution application and their individual decretal sums. She has further prayed for a direction to the petitioner to make full and complete disclosure of the documents on the basis of which the petitioner had based his claim against her husband. In support of the chamber summons she has filed her own affidavit. The petitioner has filed affidavit in reply.

2. The petitioner also has filed a Chamber Summons No. 956 of 2000 for a direction to the respondent to disclose the assets and properties both moveable and immovable, which form part of the assets of the deceased Vipin Pandya and/or which she has inherited from him as his widow as also her own assets and properties. The petitioner has also sought injunction orders and attachment of the properties of the respondent etc. In this chamber summons both the parties have filed their respective affidavit, affidavit in reply and affidavit in rejoinder. A third party by name Ms. Smita Patel has also entered the fray between the petitioner and the respondent to stake her own claim. She has also filed her own affidavit in her capacity as one of the creditors of the deceased Vipin Pandya, husband of the respondent.

3. There is also another chamber summons filed by the respondent bearing Chamber Summons No. 1251 of 2000 seeking direction to the petitioner to furnish to the respondent inspection and photo copies of the documents set out in the schedule of the said chamber summons.

4. From the synopsis submitted on behalf of the petitioner, it appears that there were some disputes and differences between Jaimal Shah group (hereinafter referred to as the petitioners) and the deceased Vipin Pandya, who is represented by the respondent being his widow. By an arbitration agreement the said disputes appear to have been referred to the sole arbitration of one Shri Markand Gandhi, Advocate and Solicitor. The learned Arbitrator appears to have submitted his award dated 29th May 1995. According to the petitioner, the said award was filed in this Court on or about 22nd September 1995. It further appears that the petitioner obtained a decree under section 17 of the Arbitration Act, 1940 in terms of the award in Arbitration Petition No. 274 of 1998. By an order dated 22nd March 2000 this Court (F.I. Rebello, J.) granted decree in terms of the award to the petitioner. In appeal before the Division bench of this Court the order passed by the learned Single Judge dated 22nd March 2000 was confirmed by the Division Bench order dated 5th September 2000.

5. The petitioners have thereafter appear to have taken out execution proceedings under Order XXI, Rule 11(2) of the Code of Civil Procedure, 1908. The petitioners sought to recover from the respondent a sum of Rs. 2,28,18,447/- with further interest at the rate of 21% p.a. on the principal amount of Rs. 85 lakhs till payment and/or realisation. The petitioners sought to enforce the decree against the respondent by issuance of warrant of attachment of all the moveable and immovable properties of the judgement debtor as provided under Order XXI, Rule 43 and Order XXI, Rule 54 of the Code of Civil Procedure, 1908. The petitioners have also sought for warrant and proclamation of sale of the said properties.

6. Shri Thakore, the learned Counsel for the petitioners in chamber summons has raised a preliminary objection against the maintainability of the present chamber summons as barred by the principle of res judicata. According to him various disputes and differences between the petitioners on the one hand and late Vipin Pandya on t













































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