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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Rajendrabhai Alias Samirbhai Natvarlal Shah – Petitioner
Versus
Chandrajitbhai Natvarlal Shah – Respondent
R/Petn. Under Arbitration Act No. 41 of 2021
Decided On : 22-10-2021
Arbitration and Conciliation Act, 1996 - Section 11, 8, 34, 11(6) - Appointment of a Presiding Arbitrator – It is case of petitioners that certain disputes and differences arose with regard to operation of joint business and management therein, including share, right or interest in immovable properties acquired and held jointly - Whether by virtue of subsequent event, can it be said that original arbitration clause contained in initial document can further be utilized for purpose of resolving dispute - Whether same can be said to be continued to operate even after declaration of consent award and for that consideration first of all Court would like to closely peruse undisputed position which is prevailing on record - Whether arbitration clause applied to subject matter of suit or not.
Findings of the Court: Court can safely come to conclusion that in aforesaid peculiar background of facts, petitioner cannot relate back to original arbitration clause which has already been exhausted by passage of time and if there is any dispute or grievance with regard to performance or any obligation, pursuant to consent award, a separate remedy is provided under the statute and Court is posted with facts even that proceedings have been initiated before competent forum where grievance can be ventilated are not in dispute - Court is unable to accept submissions of Advocate and found that this is not a fit case in which, relief as sought for can be granted - Court has not expressed any opinion with regard grievance about dispute raised in respect of merit of same - Court has only examined whether in facts and circumstances, a fresh arbitration can be allowed to be initiated on basis of original agreement - Hence, it goes without saying that it would be open for either side to take out appropriate proceedings before competent forum where grievance if surviving can be ventilated.
Result: Petition stands dismissed
JUDGMENT :
1. By way of this Arbitration Petition under Section 11 of the Arbitration and Conciliation Act, 1996, the petitioners have prayed for following reliefs :-
(B) Such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case may be granted in favour of the petitioners.”
2. The case in brief is that petitioner no. 1 and respondent no. 1 are brothers whereas petitioner nos. 2 to 4 and respondent nos. 2 to 4 are their respective family members. The petitioners as well as the respondents were jointly carrying business of manufacturing and marketing of building construction products, trading and/or supplying building material and/or construction products and/or construction and development of the land. For the purpose said business, the petitioners and respondent nos. 1 to 4 jointly formed several partnership firms and setup private limited company. Over a period of time, the petitioners and respondent nos. 1 to 4 acquired several immovable properties. While some of the properties were independently acquired and held in own name by the respective parties, there were some properties jointly acquired and held by the petitioners and respondent nos. 1 to 4 either in the course of business or otherwise.
2.1. It is the case of the petitioners that certain disputes and differences arose with regard to operation of the joint business and the management therein, including share, right or interest in immovable properties acquired and held jointly. With a view to maintain harmony and the family peace and dignity, the petitioners and respondent nos. 1 to 4 decided to resolve their inter se disputes and differences amicably with the support of the well wishers and friends. As a result of this, recorded their mutually agreed terms in handwritten documents prepared in Gujarati in the presence of the parties. The said handwritten document was without any duress and coercion signed by the respective parties and then it was decided that formal agreement be prepared by an Advocate/Solicitor and be executed containing all terms and conditions and the procedure for division of businesses and properties. In view of such understanding, Memorandum of Agreement (MOA)/Family Arrangement came to be executed on 02.01.2014 by the petitioners and the respondents for division of the joint business and joint properties. The said MOA/Family Arrangement was executed in counter-parts, and each copy was deemed to be original thereof. The petitioners have asserted that as per the said MOA/Family Arrangement, the business and properties coming to the share of the petitioners was higher than those of respondent nos. 1 to 4 and as such, it was agreed and recorded that the petitioners shall pay to respondent nos. 1 to 4 a mutually agreed sum arrived at after taking the value of the business and the properties coming to the share of respondent nos. 1 to 4 and the difference of the said value was to be paid by the petitioners to respondent nos. 1 to 4 in installments over a period of four years from the date of execution of the MOA/Family Arrangement.
2.2. It is the case of the petitioners that though the said MOA/Family Arrangement was prepared as per the Gujarati handwritten document which, respondent no. 1 had duly signed. Respondent nos. 1 to 4 raised an issue and insisted that since the petitioners would get their share of the properties and business immediately, on execution of the said agreement and the respondents would receive the difference of the valuation/consideration in installments over a period of four years, the petitioners must offer an adequate security for securing payment of the consideration by th
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