F. I. Rebello, J. - (1.)The petitioner has approached this Court in the exercise of its extra ordinary jurisdiction under Article 226 of the constitution of India to set aside the order dated 9th December, 2001 passed by the learned arbitrator appointed under the provisions of the indian Arbitration and Conciliation Act, 1996, hereinafter referred to as the Act. It is the case of the petitioner that she is a Partner of the Partnership firm known as Vidarbha distillers in which she has 25% share holding. The partnership was registered on 28th february, 1982. The petitioner's contention is that another partner Aspi Bapuna, the respondent No. 3 herein, played a fraud on her stating that the financial position of the firm is not good and that there are Sales Tax outstanding in a few crores and if the petitioner co-operates the firm can be saved and the personal properties of the petitioner could be liquidated. The petitioner is a divorcee. The respondent No. 3 under influence obtained signature of the petitioner on blank papers, stamp papers vakalatnamas and got signature on Mou under duress and handed over cheque of Rs. 4,92,023.65 and assured the petitioner that she is 25% shareholder in the firm. In february/march, 1997 the respondent No. 3 again approached the petitioner and got her signature on renewal form for renewal of the liquor licence and accordingly the licence was renewed with effect from 1st April, 1997 to 31st March, 2002. The petitioner was informed that she will be paid her profit after settlement of dispute between Sahus, another holder in the partnership and the Bapunas. Thereafter the petitioner was not informed of any other act or thing. The petitioner's son mohan contacted the Respondent No. 3 in April, 2002 and enquired about the dispute and about payment of profit in the share of petitioner. The respondent No. 3 refused to give any information to the petitioner's son informing that as the petitioner has retired petitioner has no concern with the firm. The petitioner made enquiries from the Excise Department and came to know about arbitration proceedings going on. It is the case of the petitioner that she is partner and is so shown in all Government records of Vidarbha Distilleries. On enquiries from Mr. Sahu the petitioner was informed that she is being represented in arbitration proceedings and on her behalf a reply was filed by Advocate R. K. Deshpande. The petitioner on noticing the fraud practised on her by respondent No. 3 filed an application before the learned Arbitrator in her own hand without assistance of Advocate for permission to withdraw the purported reply filed on her behalf dated 21st March, 1998 by Application of 9th june, 2001 and to permit her to file her claim statement before the Sole Arbitrator. On 16th july, 2001 the petitioner filed an affidavit in support of the application dated 9th June, 2001. It is the case of the petitioner that Advocate deshpande filed the purported reply dated 21st march, 1998 without Vakalatnama and authority from the petitioner. A reply to the application was filed by Respondent No. 3 on 25th June, 2001. In so far as engaging Lawyer the case as pleaded is that the petitioner herself as she had retired from the partnership informed the respondent No. 3 that it could not be expected that she should expend money on litigation for defending her retirement and transfer and as such requested the respondent no. 3 to engage Lawyer for her. The respondent No. 3 suggested the name of advocate R. K. Deshpande to which the petitioner agreed. The Vakalatnama was signed by the petitioner appointing Shri. R. K. Deshpande as Lawyer. The reply prepared was also signed by the petitioner after reading its contents. She informed the respondent No. 3 to arrange to file the said reply through her lawyer R. K. Deshpande. Evidence was led both by petitioner and Respondent No. 3. The Sole arbitrator dismissed the application by his order dated 9th December, 2001. The learned arbitrator whilst passing the order observed that the issue of validity of the Mou is in issue the requires to be decided on merits later. It may be mentioned that the application moved by the petitioner before the learned Arbitrator was to withdraw the statement of counter claim dated 21st March, 1998, deed of Understanding dated 3rd July, 1996 and reply, if any, purported to have been signed on her behalf in view of the fraud played by Mr. Aspi Bapuna on the claimant. After the petition was filed and admitted an order was passed by this Court on 28th march, 2002 requiring Advocate R. K. Deshpande to file a short affidavit placing on record the facts and circumstances under which he was engaged and represented the petitioner before the Arbitrator. Advocate Ravi krishna Deshpande has filed an affidavit before this Court. It is set out in the said affidavit that he is appearing for the petitioner herein who is defendant No. 3 in R. C. S. No. 1343 of 1996 pending in the court of 7th Joint Civil Judge, junior Division, Nagpur, where he is holding power/vakalatnama of the petitioner filed on 15th July, 1997. He has also filed Civil Revision application No. 907 of 1997 on behalf of the petitioner to challenge the order dated 15th July, 1997 passed by the trial Court in RCS No. 1343 of 1996. Apart from that he was holding vakalatnama on behalf of the petitioner in Civil revision Application No. 907 of 1997 which was disposed of on 20th March, 1998. The affiant Advocate Deshpande then sets out that on 28th February, 1998 Shri. S. P. Dharmadhikari, Advocate and Respondent No. 3 came to his office accompanied by one asudani. The respondent No. 3 in the presence of Advocate S. P. Dharmadhikari represented to him that Dr. Vimal Wasnik had agreed to his appearing for her before the Arbitrator and that asudani would be hence forth co-ordinating with the Advocate. Accordingly on 28th february, 1998 he attended the arbitral proceedings along with Shri. S. P. Dharmadhikari, Advocate and represented the petitioner. On 21st March, 1998 when the mater was fixed he went there and met advocate Deshpande and Shri. Asudani. A reply was given to him as signed by the petitioner. It appeared to have been signed by the petitioner. He was also shown the Deed of understanding signed by the petitioner. He found the reply in tune with the stand of the petitioner in the aforesaid Deed. He had no doubt about the correctness of the reply nor any doubt about the authenticity of the said reply and filed the reply at the request of S. P. Dharmadhikari, Advocate. The reply was filed by him before the Arbitrator not for any monetary consideration, but only on the request so made by Advocate S. P. Dharmadhikari whom he trusted and respected as a Senior colleague. He set out that he was barely knowing the respondent No. 3 and Shri. Asudani and he was not having any professional relations with them. He has neither claimed any fees nor received any amount from Shri. Aspi Bapuna or Shri. Asudani or from Shri. S. P. Dharmadhikari either by way of fees or otherwise for appearing and filing the said reply before the Arbitrator.
(2.)At the hearing of this petition on behalf of the petitioner it is contended that it is open to this Court to exercise its extra ordinary jurisdiction, more so after the affidavit filed by advocate Deshpande which would show that he was not engaged by the petitioner nor had he prepared the reply on the instructions of the petitioner and both the Vakalatnama and reply were given to him by Respondent No. 3 to be filed before the learned Arbitrator. It is submitted that fraud has been practised on the petitioner before the Arbitrator in the arbitral proceedings and the learned Arbitrator considering that ought to have permitted the petitioner to withdraw the earlier reply and file a counter claim. The learned Arbitrator was not bound by the procedure as set out in the code of Civil Procedure. At any rate it is submitted that it is open to this Court to interfere in the exercise of its extra ordinary jurisdiction under Article 226 of the Constitution, considering that the counter-claim filed on behalf of the petitioner was by playing fraud on the Arbitral Tribunal. Reliance is placed on the judgment of United India Insurance Co. Ltd. Vs. Rajendra Singh and Co. , (2000) 3 supreme Court Cases 581 to show that a tribunal or Court has power in case of a fraud played on it, to recall its earlier order secured by fraud or misrepresentation. Reliance is placed on the judgment of M/s. Anuptech equipments Private Ltd. Vs. M/s. Ganpati co-operative Housing Society Ltd. , Mumbai and Others, A. I. R. 1999 Bombay 219 : [1999 (3) ALL MR 580] to hold that it is open to this Court in proceeding before Arbitrator, specially where the party had no remedy to resort to the extra ordinary jurisdiction under article 226 of the Constitution of India. Reliance is placed in the judgment in Harbanslal Sahnia and Anr. Vs. India Oil Corporation Ltd. and ors. , 2003 AIR SCW 126 to contend that mere existence of alternative remedy is no bar to the court to exercise its extra ordinary jurisdiction and it is always open to the Court in cases (i) where the writ petition seeks enforcement of any of the Fundamental Rights, (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of Act is challenged, to exercise its extra ordinary jurisdiction notwithstanding the alternative remedy available. Reliance is also placed in the judgment of Asea Stal AB and Ors. VS. M/s. Indian Charge Chrome Ltd. and Ors. , (1994) 2 SCC 156 to contend that appearance must be by the party and a party cannot be bound by acts of a Counsel, who has taken steps on behalf of the party by any unauthorised action of the Advocate contrary to express instructions. Reliance is placed on the judgment in the case of Ramkaran Vs. Shrikishafi and ors. , AIR 1976 Raj 130 as to when a Advocate is not entitled to plead or act on behalf of a party. Reliance is also placed in the judgment in the case of Doki Adinarayana Subudhi and Brothers Vs. Doki Surya Prakash Rao, air 1980 Orissa 110 wherein the Court held that undertaking by Senior Advocate, appearing on behalf of another Advocate engaged by the party, in the absence of party is not binding on her.
(3.)On the other hand on behalf of the Respondents their learned Counsel submits that it is open to the party to raise all such challenges against the award finally passed if the petitioner was aggrieved and in these circumstances this Court ought not to exercise its extra ordinary jurisdiction. Reliance for that is placed on the judgment of this Court in Babar ali Vs. Union of India, (2000) 2 SCC 178. Reliance is also placed in the judgment of a learned Division Bench of Court in BASF styrenics Pvt. Ltd. Vs. Offshore Industrial construction Pvt. Ltd. and Anr. , 2002 (2) mh. L J. 873 : [2002 (2) ALL MR 910] to point out that this Court also has followed the view expressed in Babar Ali (supra). It is pointed out that the judgment in M/s. Anuptech Equipments, 1999 (3) ALL MR 580 (supra) at the highest can be restricted to those cases where there is no challenge to ah award and not to interim orders bearing in mind section 5 of the Arbitration and Conciliation Act, 1996.