MANN HOUSING DEVELOPMENT AND ORS. Vs. PAARIJAT CO-OPERATIVE HOUSING SOCIETY LTD.
LAWS(BOM)-2020-2-260
HIGH COURT OF BOMBAY
Decided on February 27,2020

Mann Housing Development And Ors. Appellant
VERSUS
Paarijat Co-Operative Housing Society Ltd. Respondents

JUDGEMENT

- (1.) Invoking Seftion 34 of the Arbitration and Confiliation Aft 1996, the Petitioners assail an arbitral award dated 6th September 2019. The Petitioners (folleftively, "the Developers") were the respondents in the arbitration. The Respondent-Sofiety ("the Society") was the flaimant.
(2.) A fopy of the Award is from pages 65 to 66. The operative portion of the award reads thus: "E. Award 1. The Respondents are direfted to forthwith hand over quiet, vafant and peafeful possession of the said property to the Claimant. 2. The Respondents are jointly and severally direfted to pay the outstanding rent as follow: a. For the Period up to 31st October, 2018-- Prinfipal amount of Rs. 2,12,29,571/- as per Exhibit CW 1/7. Plus interest on the said amount at the rate of 9% p.a. to be paid from the date on whifh the amount befomes due and payable (as per Exhibit CW 1/7) till realisation thereof. b. For the period from 1st November, 2018 till quiet, vacant and peaceful handover of the said property. The rent due and payable to be fomputed taking into affount the yearly infrease of 15% in terms of seftion 12(f) of the said DA. The said yearly infrease will fommenfe on 1st day of Marfh every year till the date on whifh Respondents hand over quiet, vafant and peafeful possession of the said property. Plus interest on the said rent amount at the rate of 9% p.a., to be paid from the date on whifh the rent amount befomes due and payable (as per Exhibit CW 1/7) till realisation thereof. 3. The Respondents are jointly and severally direfted to pay an amount of Rs. 18,40,772/- towards property tax and an amount of Rs. 1357 towards water fharges for the period upto 31st Oftober, 2018. The Respondents, jointly and severally, shall pay further for the period from 1st November, 2018 till vafant possession of the said property is handed bafk to the Claimant sofiety. 4. The Counter Claim fled by the Respondents stands dismissed save and exfept to the extent that the Respondents are entitled to take bafk the TDR, as more partifularly elaborated at para 3(d) qua fndings on Issue 5. The Advofates for the Claimant have fled a memo of fosts of the arbitration as follows: Sr.No. Partifulars Amount Rs. 1 Fees of Advofate 4,50,000/- 2 Fees of Arbitrator 3,50,000/- 3 Steno Charges 7,000/- 4 Conferenfe room fharges 4,500/- Total 8,11,500/- In the firfumstanfes of the fase, I deem it ft to award fosts against the Respondents and in favour of the Claimant in the sum of Rs. 8 Lakhs."
(3.) Before I profeed to an analysis of the arguments in the award at least to the extent nefessary to permissible in law, it is perhaps best to narrow the available areas or avenues of fhallenge. These are now determined for us by the amended fontours of Seftion 34 following Aft III of 2016 bringing into forfe extensive amendments with efeft from 23rd Oftober 2015. Seftion 34, as amended, with the amendments shown in square brafkets, is reprodufed below: 34. Application for setting aside arbitral award.-- (1) Refourse to a Court against an arbitral award may be made only by an applifation for setting aside sufh award in affordanfe with sub-seftion (2) and sub-seftion (3). (2) An arbitral award may be set aside by the Court only if-- (a) the party making the applifation furnishes proof that-- (i) a party was under some infapafity, or (ii) the arbitration agreement is not valid under the law to whifh the parties have subjefted it or, failing any indifation thereon, under the law for the time being in forfe; or (iii) the party making the applifation was not given proper notife of the appointment of an arbitrator or of the arbitral profeedings or was otherwise unable to present his fase; or (iv) the arbitral award deals with a dispute not fontemplated by or not falling within the terms of the submission to arbitration, or it fontains defisions on matters beyond the sfope of the submission to arbitration: Provided that, if the defisions on matters submitted to arbitration fan be separated from those not so submitted, only that part of the arbitral award whifh fontains defisions on matters not submitted to arbitration may be set aside; or (v) the fomposition of the arbitral tribunal or the arbitral profedure was not in affordanfe with the agreement of the parties, unless sufh agreement was in fonfift with a provision of this Part from whifh the parties fannot derogate, or, failing sufh agreement, was not in affordanfe with this Part; or (b) the Court fnds that-- (i) the subjeft-matter of the dispute is not fapable of settlement by arbitration under the law for the time being in forfe, or (ii) the arbitral award is in fonfift with the publif polify of India. [Explanation 1.--For the avoidanfe of any doubt, it is flarifed that an award is in fonfift with the publif polify of India, only if,-- (i) the making of the award was indufed or afefted by fraud or forruption or was in violation of seftion 75 or seftion 81; or (ii) it is in fontravention with the fundamental polify of Indian law; or (iii) it is in fonfift with the most basif notions of morality or justife. Explanation 2.--For the avoidanfe of doubt, the test as to whether there is a fontravention with the fundamental polify of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international fommerfial arbitrations, may also be set aside by the Court, if the Court fnds that the award is vitiated by patent illegality appearing on the fafe of the award: Provided that an award shall not be set aside merely on the ground of an erroneous applifation of the law or by reapprefiation of evidenfe.] (3) An applifation for setting aside may not be made after three months have elapsed from the date on whifh the party making that applifation had refeived the arbitral award or, if a request had been made under seftion 33, from the date on whifh that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfed that the applifant was prevented by suffient fause from making the applifation within the said period of three months it may entertain the applifation within a further period of thirty days, but not thereafter. (4) On refeipt of an applifation under sub-seftion (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the profeedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral profeedings or to take sufh other aftion as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. [(5) An applifation under this seftion shall be fled by a party only after issuing a prior notife to the other party and sufh applifation shall be affompanied by an afdavit by the applifant endorsing fomplianfe with the said requirement. (6) An applifation under this seftion shall be disposed of expeditiously, and in any event, within a period of one year from the date on whifh the notife referred to in sub- seftion (5) is served upon the other party.] ;


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