IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, M.SUNDAR, JJ.
S.A. Fasludeen – Appellant
Vs.
Siyauddin – Respondent
O.S.A.No.173 of 2014
Decided on : 19-12-2017
Arbitration and Conciliation Act, 1996 – Sections 11, 34, 37, 14 – Permanent Injunction – Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is against a judgment and order passed by Single Judge dismissing the Original Petition filed by the appellants under Section 34 of the 1996 Act for setting aside an award made and published by the Arbitral Tribunal in an arbitration between the parties thereto. – Held, When the mandate of the Tribunal terminates, it is incumbent that an Arbitral Tribunal be reconstituted in accordance with law as per the applicable rules of appointment of the Arbitral Tribunal. – In the absence of any express provision in this regard in the arbitration agreement, the 1996 Act would prevail. – In no circumstances could an Arbitral Tribunal of two Arbitrators proceed to make and pronounce an award upon the death of the third Arbitrator. – The mandate of the Arbitral Tribunal came to an end by reason of the event of the death of the third Arbitrator and the Arbitral Tribunal became functus officio. – The award made after the death of the third Arbitrator is, thus, null and void, even though the draft may have been prepared while the third Arbitrator was alive. – Impugned award is, thus, set aside. – Arbitral Tribunal may be re-constituted by agreement of the parties and/or alternatively if there is no consensus, in accordance with Section 11 of the 1996 Act. – The arbitral proceedings may be continued and concluded by the Tribunal so constituted. – The records of the proceedings may be transmitted to the Arbitral Tribunal so constituted. – It would be open to the Arbitral Tribunal to decide the issue in accordance with law on the basis of the materials and evidence on record or to take further and fresh evidence. – Appeal Allowed
This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) is against a judgment and order dated 7.11.2013 passed by the learned Single Judge dismissing the Original Petition No.59 of 2012 filed by the appellants under Section 34 of the 1996 Act for setting aside an award dated 11.10.2011 made and published by the Arbitral Tribunal in an arbitration between the parties thereto.
2. The appellants and the respondent Nos.1 to 4 are the sons and daughters of S.M.Abdul Majid, who died on 15.2.2009. The appellants are the brothers of respondents 1 to 4 herein.
3. During the lifetime of S.M.Abdul Majid, two of his sons, i.e., the Appellant No.2 and the Respondent No.4, filed a civil suit, being O.S.No.4910 of 2008, in the City Civil Court at Chennai praying for a decree of declaration that any document created by their father S.M.Abdul Majid in favour of his two daughters, being the respondents 2 and 3, or any document created in favour of any one son, i.e., the Appellant No.1, after 2004 was null and void.
4. The Appellant No.2 and Respondent No.4 also sought a permanent injunction restraining the defendants in the suit from interfering with the possession of the plaintiffs in the suit, i.e., the Appellant No.2 and the Respondent No.4 herein, of a property at Adyar in Chennai. It is stated that S.M.Abdul Majid was not impleaded as defendant in the said suit.
5. Later, two sons of the second appellant herein and a son of the appellant No.1 filed another suit, being O.S.No.6456 of 2008 against their grandfather S.M.Abdul Majid and his two daughters, being the respondent Nos.2 and 3 herein, and sought a permanent injunction restraining the defendants from interfering with their possession and enjoyment of the property at Adyar.
6. The above two suits were compromised by the parties thereto who entered into an agreement, whereby the parties decided to have their disputes referred to arbitration by a panel of three arbitrators. Under Clause (2) of the agreement, which is dated 16.11.2008, the parties agreed to treat the award passed by the Arbitral Tribunal final and binding on them and they also agreed to have the two suits withdrawn.
7. Some of the relevant clauses of the arbitration agreement are set out herein below for convenience:
Clause (4)
We, the signatories herein have absolute confidence in the fairness of the above Arbitrators and we solemnly agree to be bound by the decision of the Tribunal. The parties herein agree that no reasons need be given by the Tribunal for its decision.
Clause (6)
The agreement hereby made shall not be revoked either by the death or incapacity or any act of any one or more of the parties hereto and the said Arbitral Tribunal shall proceed as if no such act or event had occurred.
Clause (9)
As the disputes are among the members of the family, the Tribunal is requested to decide the questions involved not strictly in accordance with the law but on the principles of justice, equity and good conscience, in order to ensure ever lasting peace and amity in the family during and after the life time of the propositus Haji S.M. Abdul Majid, No.(1) of us.
8. The parties thereto filed their respective pleadings before the Arbitral Tribunal. The appellants filed their statement of claim on 15.1.2009 on their own behalf and on behalf of respondent No.4. It was the contention of the appellants and the respondent No.4 that their father S.M.Abdul Majid was acting as a puppet in the hands of his daughters and sons-in-law and that the daughters should not be granted any part of the properties.
9. The Respondent No.1, who had been a resident of the United States, filed a claim statement on 19.1.2009, a major portion of which focused on the philosophy of human life and in the end of the statement, he pleaded for a fair and correct division of the properties in accordance with the Islamic Shariat Law.
10. After the claim statements were filed, S.M.Abdul Majid died on 1
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