Difference between revisions of "SUNDER KUKREJA & ORS. v. MOHAN LAL KUKREJA & ANR. 2009 IN SC 630"

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Latest revision as of 15:10, 1 July 2020

COUNSEL FOR THE APPELLANTS: - Shri Arun Jaitley, Sr. Adv. And Navin Chawla, Adv.

COUNSEL FOR THE RESPONDENTS: - Ms. Nita Gokhale Vijay Kumar, H.P. Singh, Advs. for Dharam Bir Raj Vohra, Adv., Rajesh Prasad Singh, Adv.

APPELLANT: - SUNDAR KUKREJA

RESPONDENT: - MOHAN LAL KUKREJA

DECISION DATE: 26.03.2009

SUBJECT: ARBITRATION

PRIOR HISTORY: From the Judgment and Order dated 30.11.07 of the Hon'ble High Court of Delhi at New Delhi in FAO (OS) No. 469/2006


ABOUT THE PRESENT CASE

1. This case is a an appeal filed by special leave

2. The Appellant filed a petition under Section 20[1] of the Arbitration Act, 1940 praying for an appointment of an Arbitrator. The parties are real brothers and were carrying on business with each other in the name and style of M/s. D.R. Kukreja and Company.

3. The business of the partnership, D.R. Kukreja & Co., was primarily the running of cinema hall, i.e., Sapna Cinema. This cinema hall was constructed on a plot of land in East of Kailash, New Delhi which was given on lease to the partnership by the Delhi Development Authority („DDA‟) by a perpetual lease deed dated 1st September 1970. Their mutual rights and obligations were governed by partnership deeds, the last of which was executed on 10.7.1984. In terms of the Clause of the said deed, disputes arising between the parties had to be resolved by way of arbitration before a sole arbitrator to be nominated by the parties.

4. The respondent said that the partnership was dissolved by the parties with mutual consent in terms of the retirement deed dated 16.8.1990 alleged to have been executed by the appellant. However, the appellant denied executing any such retirement deed and filed a petition under Section 20 of the Arbitration Act seeking a direction for filing the arbitration agreement dated 10.7.1984 in the Court and for reference of the dispute between the parties to arbitration in terms of Clause thereof. It was alleged in the petition that disputes relating to payment of profits earned by the partnership firm and the interest on the said amount had arisen between the parties which called for adjudication by the arbitrator under Clause and also alleged the respondent for mismanaging the affairs of the partnership by employing undesirable elements and other dubious means.

5. This was opposed by the respondent by filing a written statement contending that the petitioner has misrepresented the true facts and that there was no subsisting arbitration agreement between the parties in the light of the retirement deed dated 16.8.1990 allegedly executed by the petitioners by which the partnership between the parties stood dissolved and all claims stood completely satisfied. It was also alleged that the petitioners had not come to the Court with clean hands and had deliberately omitted to mention the fact of their retirement from the business under the retirement deed.

6. The genuineness of the retirement deed was, however, challenged by the appellants herein who asserted that no retirement deed has been executed by them.

7. By an order dated 1.5.1996, the learned Single Judge hearing the arbitration petition referred the disputed deed of retirement for examination and opinion to the Central Forensic Science Laboratory (CFSL). The document in question was accordingly examined by the CFSL who reported that the alleged signatures of the petitioners on the alleged retirement deed were not genuine. The learned Single Judge held that the plea that there was no dispute because of the alleged retirement deed and receipts can be easily gone into by the arbitrator, and in view of the report of the forensic expert between the parties it cannot be prima facie said that the dispute does not subsist. The report of the forensic expert creates a substantial doubt in the stand taken by the respondent of the alleged retirement of the appellant from the partnership.

8. The learned Single Judge held that the arbitration clause in the present case is wide enough to include all the disputes sought to be referred. Hence the learned single Judge allowed the petition under Section 20. In appeal, however, the Division Bench of the High Court was of the view that in case no live dispute existed.


JUDGEMENT

The Court allowed the appeal in this case and set aside the decision of the Division Bench and appointed Mr. Justice D.P. Wadhwa, retired Judge of the Supreme Court as the sole Arbitrator to decide the dispute between the parties, including the dispute whether the alleged retirement deed was genuine or not. The court was of the opinion that the judgment of the Division Bench cannot be sustained and said that there is no dispute about the validity or existence of the partnership deed or the arbitration clause.[2]


REFERENCE

  1. Sec. 20-Application to file in Court arbitration agreement.
  2. https://indiankanoon.org/doc/1761325/