K.R. Shriram, J. - (1.) AN award dated 7.1.2010 passed by Mr. Justice S.M. Jhunjhunwala (retired) is sought to be set aside under Section 34 of the Arbitration & Conciliation Act 1996 (the said Act). Though it is not stated specifically in the petition under which part of section 34 of the said Act the petitioner is praying for setting aside the award, the counsel for the petitioner, across the bar, submitted that the award has to be set aside under Sections 34(2)(a)(ii), 34(2)(a)(iii), 34(2)(b)(i) and 34(2)(b)(ii) of the said Act.
(2.) AS a prelude, it is necessary to mention that the petitioner had filed a Suit bearing No. 1163 of 1999 against the respondents to this petition and one Dr. S.K. Poddar, in the Original Side of this Court. In the said suit the petitioner had prayed for the following reliefs: - - "(a) for a decree of specific performance of the agreement of sale entered into between the plaintiff and the 2nd Defendant as per Exhibit 'B' hereto by requiring the 2nd Defendant; (i) to execute a conveyance of the suit property as described in the schedule Exhibit 'A' hereto; (ii) to give vacant possession of the portion of the suit property in occupation of the 2nd Defendant, as shown shaded red and green in the plan Exhibit 'C' hereto and shown in red and green in the plan Exhibit 'D' hereto; (b) that pending the hearing and final disposal of the suit, the 2nd Defendant by himself or through his agents, servants or contractors, be restrained by temporary injunction from transferring or assigning or parting with the possession of any part of the suit property to any person other than the plaintiff; (c) for ad -interim relief in terms of prayer (b) above; (d) that pending the hearing and final disposal of the suit, Receiver, High Court, Mumbai be appointed Receiver of the suit property described in Exhibit 'A' hereto with all powers under Order 40 Rule 1 of the Code of Civil Procedure; (e) for ad -interim relief in terms of prayer (d) above; (f) for costs of this suit and (g) for such further and other reliefs as the nature and the circumstances of the case admit." In the Schedule annexed to the Plaint filed in the said Suit as Exhibit 'A' thereto, the property in respect whereof the reliefs were claimed by the Claimant has been described as under : DESCRIPTION OF THE SUIT PROPERTY ALL that piece and parcel of land or ground admeasuring 453.1 square metres or thereabouts, lying, being and situate at 24, Tilak Mandir Road, Vile Parle (East), Mumbai 400 057 and bearing C.T.S. No. 1287 of Greater Bombay in the Registration district and sub district of Bombay City suburban together with a building constructed in the year 1938 (approx) consisting of ground and one upper floor with ditched small ancillary structures used as W.O. Block and Watchman's cabin and other structures and erections standing thereon and bound as follows: - - WEST : By plot No. 1285 known as Easwar Bhavan, EAST : By main Tilak Mandir Road, NORTH : By plot No. 1288 known as Trimurti Building, SOUTH : By plot No. 1286 known as Heena Building." The first respondent at that time was a minor and was sued through his father and natural guardian -the 2nd respondent herein. Though no relief against the said Dr. S.K. Poddar was claimed in the suit, according to the petitioner the said Dr. S.K. Poddar was made party defendant in the suit since in his capacity as one of the executor named in the Will of Smt. Dakhibai Mohanlal Saraf, the said Dr. S.K. Poddar was the first confirming party to the agreement for sale of the property as alleged by the petitioner and of which, decree for specific performance was sought by the petitioner herein.
(3.) THE respondents herein, who were the defendant Nos. 1 & 2 to the Suit, took out a Notice of Motion under Section 8 of the said Act seeking reference of the disputes to arbitration. It was the respondents' case that the agreement relied upon by the petitioner in the Suit was a forged and fabricated document and that the petitioner and the 2nd respondent had executed an agreement dated 20.9.1995 which was for sale of 1/5th undivided share in the suit property. It was also the case of the respondents that the petitioner and the 2nd respondent retained one original each of the agreement, in 1996 the said agreement was revoked, cancelled and torn by the petitioner in the presence of the 2nd respondent and the reliance of the respondents on the said agreement was only to substantiate their case that the agreement which the petitioner was propounding, to be the agreement in the suit, was a forged and fabricated document. According to the respondents, the alleged agreement for sale relied upon by the petitioner in the suit and of which the petitioner sought specific performance was never entered into by and between the petitioner and the respondents and that the petitioner was not entitled to maintain the suit. The 2nd respondent also contended that the subject matter of the suit in any event, was required to be referred to arbitration.;