The Court emphasized that it does not sit in appeal over the findings and decision of the arbitrator, and the objections to the Award had to be specifically spelt out.

NAJMI WAZIRI, J.

CAV 26/2018

1. Counsel for the caveator/ respondents enters appearance. Caveat stands discharged.

FAO 21/2018 & CM APPL. 1584-1586/2018

2. This is an appeal under Section 37 of the Arbitration & Conciliation Act, 1996 (in short the Act) against the order dated 25.09.2017 passed by the learned Additional District Judge (South District), Saket Courts, New Delhi, in Arb. Petition No.20706/16 filed under section 34 of the Act, which had challenged the Award dated 23.12.2015.

3. The order is impugned under section 37(1) of the Act, on the ground that the counter-claim of the appellant was not considered and, therefore, there is perversity in the Award. The additional grounds are that the agreement dated 13.04.2005 does not reflect the real and true terms and conditions of the understanding between appellant no.1 and respondent no.1; the said document is forged; the signatures of appellant no.1 on various other documents too are forged; the appellant is an uneducated person, does not understand Gurumukhi or English and has been a victim of fraud and misrepresentation committed by respondent no.1 and his associates; the cash receipts produced by respondent no.1, purportedly showing the payment of large sums of monies to appellant no.1, are fictitious; that the appellant has been paid only Rs. 5.50 lakhs in cash and Rs. 1.5 lakhs in cheque; that the arbitral award is also bad and the impugned order is perverse because there was nothing on record to show that agreement dated 13.04.2005 was cancelled and then three subsequent agreements dated 01.07.2005 were executed, both agreements cannot co-exist; the hand writing expert opining that the signatures on the aforesaid documents was of appellant no.1 was erroneous and unsubstantiated because, other than his mere opinion, no corroborative or other independent evidence or material was adduced to reach an indisputable conclusion that the said signature was of the appellant no. 1; the impugned order is contrary to the dicta of the Supreme Court, that where Award/order/decree is based on concealment of material facts or based on fraudulent documents, they are likely to be set aside.

4. The facts of the case are that appellant no.1 is the owner of property in Green Park Extension, New Delhi. He entered into an agreement with respondent no.2 on 13.04.2005 to construct three floors in the said property which were sold to respondent no.1 for Rs. 69 lakhs. Two of these flats i.e. first and second floor flats have been delivered to the purchasers and sale deed apropos them have been executed pursuant to directions of this Court in earlier proceedings. A dispute arose between the parties over non-execution of the sale deed by appellant no.1 regarding the upper ground floor in favour of respondent no.1. A suit for specific performance was filed against the appellant no.1. He invoked the arbitration clause in the aforesaid agreement. The case reached this Court which appointed an arbitrator with mutual consent. The parties participated in the arbitral proceedings, an Award was passed, which was challenged and was partly allowed by the impugned order.

5. The Award had directed execution of the sale deed by appellant no.1 in favour of the respondent regarding upper ground floor; making available space for parking of one big car to the respondent, resultant removal of constructions/structures that may be, for the provision of the said car parking, a cost of Rs. 4.85 lakhs with interest at the rate of 12% per annum commencing from 04.09.2006 was imposed for the loss of area of 20 sq. yds. to respondent no.1; half of the arbitral fee of Rs. 2.65 lakhs too was imposed along with damages of Rs. 10 lakhs. The impugned order found that the award of the aforesaid monetary amounts were unwarranted and no case was made out for grant of the same. Hence it set aside the award of Rs. 3.10 lakhs with interest as being against public policy, and the damages of Rs. 10 lakhs and Arbitral Fee of Rs. 2