D.K.Seth, J. - (1.) In this petition, an award of the Arbitrator dated 19th January, 2000 between S/Shri Ashoke Mitra and Manmohan Mitra on the one hand and S/Shri Aloke Mitra and Deepak Mitra in Re Mitra Prakashan Ltd., Maya Press Pvt. Ltd., Allahabad has since been challenged.
(2.) Mr. Salil Kumar Rai, learned counsel for the petition contends that the petitioner, a shareholder of the company was not a party to the arbitration proceeding and. therefore, by virtue of the award. her right cannot be affected. By elaborating his submission, he contended that in the award, the entire management has been changed. The existing Directors were divested of their right and the Chief Executive Officer and Chief Accounts Officer were appointed and they are not permitted to take directions from the Directors and the Directors were directed not to interfere with their day to day working. Thus, the petitioner has right to get the company managed through an elected Board under the Companies Act. which has been taken away. He further contends that there was a direction for continuance of the existing Directors without holding further election which has also affected the right of the petitioner. Mr. Rai next contends that the Arbitrator had exceeded Jurisdiction in entering into the question of Management which was not one of the terms of reference out of the seventeen terms referred to the Arbitrator and as such, the Arbitrator had out-stepped the limits of the reference. He then contends that the petitioner was never given any opportunity before the award was passed and as such, the petitioner has no right to take advantage of Section 34 of the Arbitration Act. In support of his contention, he further contends that the petitioner cannot seek remedy under Section 34 of the Arbitration and Conciliation Act. 1996, on two-fold grounds namely, that the petitioner was not a party to the proceeding and secondly, that the question of taking away of her right could not have been gone into by the 'civil court in view of the facts and circumstances of the case. Mr. Rai had taken me through various parts of the award and had pointed out that the Arbitrator had taken a view that he is not supposed to overlook the views of the shareholders as would be apparent from the expression that the shareholders did not approve the scheme of partition and majority of the shareholders were not in favour of the partition between the companies. Therefore, the Arbitrator had acted against the interest or will of the shareholders by interfering with the Management, which is otherwise a protected right under the provision of the Companies Act available to the shareholders. On these grounds, he contends that the award should be set aside.
(3.) Mr. J. Nagar. learned counsel for the respondents on the other hand contends that this petition Is not maintainable In view of Section 34 of the Arbitration and Conciliation Act, 1996, a remedy open to the petitioner. He submits that Article 226 of the Constitution of India cannot be invoked to establish a Civil right which otherwise can be established through civil proceeding. Then he contends that the question of validity of the award cannot be gone into in exercise of writ jurisdiction, in view of the fact, that it requires certain decisions on the question of fact which is otherwise impermissible. He then contends that the petitioner was given notice which is apparent from the arbitral proceedings, the records whereof have since been produced, from which it was so pointed out by Mr. Nagar. Since, the petitioner did not participate in the proceeding and did not submit any objection, it Is not open to her to assail the same. He further contends that the petitioner is the wife of Shri Aloke Mitra who was a party to the proceeding and therefore, he cannot feign ignorance about the initiation of the arbitral proceeding altogether. The petitioner may contend that she was not aware of the details of the proceeding. But it is very difficult to presume that she did not have any knowledge that there was an arbitral proceeding in respect of the companies. Therefore, this petition cannot be entertained.;