VINOD KUMAR SHARMA Vs. TEREZA DINESH VAGHELA

JUDGEMENT

(1.) HEARD Shri V.R. Tamba, the learned Counsel appearing for the appellant and Shri M.B. Da Costa, the learned Senior Counsel appearing for respondent no.1. None for respondent no.2, though served.

(2.) THE above appeal challenges an award passed by the sole Arbitrator dated 2/03/2005 as well as the judgment and order dated 30/04/2009 passed by the learned Principal District Judge, North Goa at Panaji in Civil Miscellaneous Application No.100/2007.

(3.) SHRI V.R. Tamba, the learned Counsel appearing for the appellant has assailed the impugned judgment on the ground that as per the notice issued by the appellant raising the dispute and seeking the appointment of an Arbitrator by notice dated 2/02/2002, the appellant had raised two claims namely; (a) two flats belonging to the partnership firm, which have not been sold and which are required to be sold and (b) the filing of a civil suit for recovery of the said amount from one Dinesh Vaghela, who is said to be the husband of one of the partners. The learned Counsel further pointed out that the said claims are independent from the claims and differences which were raised by the parties before the earlier Arbitrator. The learned Counsel further submits that the learned Arbitrator has come to the conclusion that the claim was barred by principles of res judicata on the ground that such claims were available to the appellant at the time of putting up their original claim before the earlier Arbitrator. The learned Counsel further points out that the learned Arbitrator was not justified to come to such conclusion as according to him such claims were not available to the appellant and this Court whilst referring the matter to Arbitrator under Section 11 (6) of the Arbitration and Conciliation Act, 1996 has clearly held that these differences were not part of the earlier award. The learned Counsel further pointed out that even the earlier pleadings or statement of claims of both the parties were not before the Arbitrator whilst passing the impugned award and as such the learned Arbitrator was not justified to come to the conclusion that the claim is barred by principles of res judicata only on the basis of presumption as pointed out in the impugned award. The learned Counsel has taken me through the impugned award of the learned Arbitrator and pointed out that the learned Arbitrator has totally misdirected itself in refusing to adjudicate upon the difference raised by the appellant and as such the appellant is entitled for a fresh adjudication of such dispute by the said Arbitrator. The learned Counsel has taken me through the judgment of the learned Principal District Judge and pointed out that the learned Judge has erroneously dismissed the objections under Section 34 as according to him the learned Judge has totally misdirected itself in concurring itself with the findings of the learned Arbitrator whilst passing the impugned award. The learned Counsel further points out that the net result of the impugned judgment and the award is that the differences raised by the appellant have not been adjudicated and as such it has resulted in miscarriage of justice to the appellant which requires to be corrected by this Court.