Karnataka High Court
Sri. Ashok Kumar. S vs Sri. Narendra Kumar. S on 29 April, 2025
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MFA No.2231 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE S RACHAIAH
MFA NO. 2231OF 2021(AA)
BETWEEN:
1. SRI. ASHOK KUMAR S.,
S/O LATE SHANTILAL LALJI,
AGED ABOUT 63 YEARS,
NO.809/8, JALARAM KRUPA,
61ST CROSS, 5TH BLOCK,
RAJAJINAGAR,
BENGALURU-560 010.
2. SMT. A. DAKSHA,
W/O SRI ASHOK KUMAR S.,
AGED ABOUT 59 YEARS,
NO.809/8, JALARAM KRUPA,
61ST CROSS, 5TH BLCOK,
RAJAJINAGAR,
BENGALURU-560 010.
...APPELLANTS
(BY SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
SRI. SUNDARA RAMAN .M.V, ADVOCATE)
AND:
1. SRI. NARENDRA KUMAR S.,
S/O LATE SHANTILAL LALJI,
AGED ABOUT 66 YEARS,
NO.155/9/2, 1ST FLOOR,
1ST STAGE, 5TH CROSS,
OKALIPURAM, OPP: JAIN TEMPLE,
BENGALURU-560 021.
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MFA No.2231 of 2021
2. SMT. KALPANA N.,
W/O SRI. NARENDRA KUMAR S.,
AGED ABOUT 58 YEARS,
NO.155/9/2, 1ST FLOOR,
1ST STAGE, 5TH CROSS,
OKALIPURAM, OPP: JAIN TEMPLE,
BENGALURU-560 021.
...RESPONDENTS
(BY SRI. K.N. NITISH, ADVOCATE FOR
SRI. K.V. NARASIMHAN, ADVOCATE FOR R1 & R2)
THIS MFA IS FILED U/S 37(1)(c) OF THE ARBITRATION
AND CONCILIATION ACT, AGAINST THE JUDGMENT AND
DECREE DATED 07.02.2020 PASSED IN A.S.NO.72/2017, ON
THE FILE OF THE LXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE(CCH-64), BENGALURU, DISMISSING THE
ARBITRATION SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT, 1996.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.01.2025, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, V KAMESWAR
RAO J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CAV JUDGMENT
(PER: THE HON’BLE MR JUSTICE V KAMESWAR RAO)
The challenge in this appeal is to an order dated
07.02.2020 passed by the LXIII Additional City Civil and
Sessions Court (CCH-64), Bengaluru, in AS No. 72/2017.
2. The AS No.72/2017 was filed under Section 34
of the Arbitration and Conciliation Act, 1996 (in short,
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MFA No.2231 of 2021
‘Act of 1997) read with Rule 4 of the High Court of
Karnataka Arbitration (Proceedings before the Courts)
Rules, 2001, challenging the Arbitration Award dated
05.04.2017 passed by the learned sole Arbitrator,
whereby the learned Sessions Judge has dismissed
Section 34 petition and confirmed the impugned award
rendered by the sole Arbitrator.
3. The facts that are noted from the record are
that the Appellant No.1 and Respondent No.1 are
brothers. The 2nd appellant is the wife of the 1st
appellant and the 2nd respondent is the wife of the 1st
respondent. Due to various disputes that arose between
them, they were referred to arbitration before the Five
Members of Lohana Samaja at Bengaluru. After
considering the issues, an Arbitral Award was passed by
the said Arbitrators on 28.03.2007. It is a conceded
position that the said award has not been challenged by
the parties herein.
4. It is the case, in pursuance of the Arbitral
Award dated 28.03.2007, a Gift Deed, Partition Deed and
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MFA No.2231 of 2021
Memorandum of Family Settlement were entered into
between the parties on 21.06.2007, which were
registered on 31.07.2007 with an intent to extinguish all
the disputes between them. In the year 2008, the
respondents herein had filed a suit in OS No.5221/2008
before the V Additional City Civil and Sessions Judge,
Bengaluru, challenging the Gift and Partition Deeds dated
21.06.2007 on the ground, they are vitiated by fraud and
hence not binding on them. No reference was made to
the Memorandum of Family Settlement dated
21.06.2007.
5. The appellants herein put in appearance in the
suit and filed an application under Section 8 of the
Arbitration and Conciliation Act, 1996 (‘Act of 1996’ for
short) invoking Arbitration clause as contained in the
registered Memorandum of Family Settlement. The
Sessions Judge has allowed the said application on
13.11.2008 and referred the dispute to Arbitration. The
respondents have challenged the said order by filing a
writ petition being WP No.16963/2008 and a Special
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MFA No.2231 of 2021
Leave Petition being SLP No.19811/2009, before this
Court and the Hon’ble Supreme Court.
6. Suffice to state, the reference to arbitration
was upheld by this Court and the Hon’ble Supreme Court.
7. The respondents herein had filed a claim
statement, to which the appellants filed their statement
of objections and raised a counter-claim on the
respondents. The issues were framed and evidence was
led. It appears at the stage of final arguments, for the
first time, the respondents pointed out that the date
written on the Memorandum of Family Settlement was a
date prior to the purchase of stamp paper. The learned
Arbitrator on this basis, in the absence of any pleading
took a view that the document would result in him, not
having jurisdiction to arbitrate. It is in this background
that the aforesaid suit under Section 34 of the Act of
1996 was filed by the appellants stating that the award is
not only erroneous but, it violates the fundamental policy
of Indian Law; it also suffers from irrational appreciation
of material facts and proceeds on an analysis which is hit
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MFA No.2231 of 2021
by the principles of Wednesbury unreasoableness. It is
also stated that the award is not merely perverse, but is
also illegal. According to the appellants, the learned
Arbitrator ought to have noticed that, no objection was
raised to his jurisdiction under Section 16 of the Act.
When no objection was raised, the right to object the
jurisdiction is deemed waiver in terms of Section 4 of the
Act. When there is no objection to jurisdiction, the
learned Arbitrator cannot suo-moto decide that he has no
jurisdiction. It is the fundamental policy of Indian Law
that a party who objects jurisdiction, must raise the
objection immediately and before filing statement of
defence. It was the stand, strangely the respondents,
who got the learned Arbitrator appointed were seeking to
contend that the Arbitrator has no jurisdiction. To
succeed in such an endeavor, the respondents have to
show that the agreement is hit by any of the principles of
Indian Contract Act. Unless the contract can be declared
void, it is impermissible in law for an Arbitrator, who is a
creature of the contract, to hold that the Arbitration
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MFA No.2231 of 2021
Clause is invalid. It was the stand of appellants that the
learned Arbitrator does not conclude that the
Memorandum of Family Settlement is hit by any of the
provisions of the Contract Act. Yet, he declares the
agreement clause as invalid. The stand was the learned
Arbitrator failed to appreciate that, once he was
appointed as an Arbitrator by this Court and the Hon’ble
Supreme Court, it was not open for him to conclude the
arbitration clause, as not valid. The Hon’ble Supreme
Court and the High Court both appointed the Arbitrator
on the basis of the Arbitration Clause provided in the
Memorandum of Family Settlement. When such
appointment is well-settled, the Arbitrator cannot go
beyond the appointment and more so in Para-2 of the
order in CMP No.13/2010, the Court records the
submission of the appellants and the respondents herein
that the Court must appoint an Arbitrator on the basis of
the Clause-5.1 of the Memorandum of Family Settlement.
It was on the basis of such request, the learned
Arbitrator was appointed. The learned Arbitrator cannot
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MFA No.2231 of 2021
hold, he has no jurisdiction. It was the case that, the
learned Arbitrator has failed to appreciate that the
standard of proof in alleging fraud and misrepresentation
is extremely high. The primary burden is on the person
alleging, to specifically plead in the manner envisaged in
Order VI Rule 4 of CPC, and as has been observed in
catena of judgments. It was the case, the Memorandum
of Family Settlement was within the knowledge of the
respondents as early as in the year 2008, when the
appellants herein have presented document along with
an application under Section 8 of the Act of 1996 before
the Civil Court. Despite the same, the respondents chose
to ignore its existence and filed claim statement before
the Arbitrator without even challenging the said
document. It is only by way of an amendment during the
pendency of the arbitral proceedings, the respondents
have challenged the said document. The respondents
have not averred that there is a fraud or
misrepresentation. It is at the time of arguments,
without there being any pleadings of fraud and
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MFA No.2231 of 2021
misrepresentation that the impugned order has been
passed.
8. The Trial Court has framed the following points
for its consideration:-
i) Whether once arbitral tribunal was constituted
and that it was affirmed by the Hon’ble High
Court and Hon’ble Apex Court, it was not open
to the Arbitral Tribunal to adjudicate on the
question of validity of Arbitration agreement/
clause?
ii) Whether the Arbitral Tribunal has erred in
holding that it has no jurisdiction to adjudicate
the dispute referred to it?
iii) Whether the award of the Arbitral Tribunal
warrants interference by this Court?
iv) What Order or decree?
9. On Point Nos. 1 to 3, the Trial Court has come
to the following conclusion and accordingly dismissed the
suit:-
xx xx xx xx xx
16. Clause 5.2 of the alleged Memorandum of
Family Settlement agreement provides that “the
parties confirm that in the event of any dispute
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MFA No.2231 of 2021
regarding interpretation of the terms of this MOU,
the parties shall refer the same to the arbitrators
for settlement. In the additional claim statement
made on 30.04.2015 under Sec.23 of the Act of
1996, in CMP.13/2010, in prayer column shows as
AA, the defendants of this suit have sought to
declare the Memorandum of Family. Settlement,
gift and partition deeds dated 21.06.2007 as null
and void. In a claim statement filed in
C.M.P.13/2000 filed by the defendants on
14.02.2005 before the arbitral Tribunal U/Sec.23
of the Act, 1996, the defendants have sought for
partition declaring that the claimants are entitled
to half share in ‘A’ schedule and 1st claimant has
half share in ‘B’ schedule property and for
separate possession of shares. In both the said
claim petitions, the defendants have contended
that fraud was played and misrepresentation was
resorted to on them and gift and partition deed
were created. It is for the plaintiffs of this suit to
oppose the said claim petitions. They have not
sought for dismissal of the said claim petitions.
They have not contended that the arbitral tribunal
has no jurisdiction to decide the dispute. The
defendants or the plaintiffs have not objected the
jurisdiction of the arbitral tribunal before the
arbitral tribunal. But the arbitral tribunal at the
stage of argument found that the document dated
21.06.2007 is not executed and could not have
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been executed on 21.06.2007, but has come into
existence subsequently though is not done by the
parties with any criminal intention, but in a casual
manner not realizing the consequences of creating
a arbitral tribunal by an agreement under a
document which is antedated.
17. The Hon’ble High Court in deciding the
W.P.No.16963/2008 (GM CPC) that filed
challenging the order allowing the I.A. filed
U/Sec.8 of the Act, 1996 by the V Addl., City Civil
& Sessions Judge, Bangalore, passed in
O.S.NO.5221/2008 has relied case law reported in
2003(6) SCC 503, Hindustan Petroleum
Corporation Ltd., V/s Pink City Midway Petroleums
to hold that a clause in Memorandum of Family
Settlement to reference to arbitration of all
disputes is made, whether such agreement is in
existence or whether it was validly executed or is
tainted by fraud or misrepresentation can also be
agitated before the Arbitrator. In the aforesaid
case law, in Paras- 14 to 16, it was clearly held
that “objection regarding the applicability of the
Arbitration clause will have to be raised before the
arbitrary Tribunal concerned. The Apex Court has
further held that, Sec.16 empowers the arbitrary
Tribunal to rule or its own jurisdiction including on
any objections with respect to the existence or
validity of the arbitration agreement.
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MFA No.2231 of 2021
18. Perused the case laws relied by the
learned counsel for plaintiffs. In the said case
laws, the Hon’ble Apex Court has not laid down a
case law that once the arbitral tribunal was
constituted and that it was affirmed by the
Hon’ble High Court or Hon’ble Apex Court, it was
not open to the arbitral tribunal to adjudicate on
the question of validity of arbitration
clause/agreement. Facts of this suit and the facts
of reported case laws are entirely different. But,
as stated supra as per case law of Hon’ble Apex
Court and the order of our Hon’ble High Court in
W.P.16963/208 as well as per Sec.16(1) of the
Act, Arbitral Tribunal has authority to rule on its
own jurisdiction including on any objections with
respect to the existence or validity of the
arbitration agreement. Before passing the said
award, the arbitral tribunal has scrutinized the
oral & documentary evidence placed with
reference law and facts of this case. Therefore, it
is clear that, if the Arbitral Tribunal found that
there was no valid arbitration agreement between
the parties, it has no jurisdiction to adjudicate
upon the disputes raised by the parties herein.
Therefore, no grounds to accept that the Arbitral
Tribunal has erred in holding that it has no
jurisdiction to adjudicate upon the disputes raised
by the plaintiffs and the defendants. Hence, no
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MFA No.2231 of 2021
grounds to interfere with the findings of the
arbitral tribunal.
19. No specific allegations made against the
learned arbitrator that he has played fraud on the
plaintiffs while passing the arbitral award. In what
way, the arbitral award is opposed to the public
policy is not explained properly. Therefore, I am
of the opinion that the impugned award of the
Arbitration Tribunal was passed in accordance
with the procedure laid under Arbitration and
Conciliation Act, 1996. Therefore, no grounds to
set-aside the impugned award of the Arbitration
Tribunal. Hence, I answer the Points No.1 to 3 as
in the Negative
10. According to Mr. Dhyan Chinnappa, the
learned Senior Counsel appearing for the appellants, it is
a settled law that the appointment under Section 11 of
the Act of 1996 is a judicial order. Existence of Arbitral
Agreement is neither disputed nor denied by either party.
Once, the Court has upheld the appointment of an
Arbitrator, the same is final and binding between the
parties and no party can then raise an issue before the
Tribunal on the existence of arbitration
clause/appointment. In this case, this Court’s order has
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been upheld by the Hon’ble Supreme Court as well, on
two occasions, once while considering the application
under Section-8 and next while considering the
application under Section-11 of the Act. He refers to the
judgment of the Hon’ble Supreme Court in the case of
S.B.P & Co. Vs. Patel Engineering [(2005) 8 SCC
618] and Chloro Controls India Pvt. Ltd. Vs. Severn
Trent Watar Purification Inc. [(2013) 1 SCC 641] to
contend that the findings made under Section 11 are
final and cannot be questioned by the Arbitral Tribunal.
11. According to Mr. Chinnappa, since the order of
the Hon’ble Supreme Court has confirmed the
appointment, for the learned Arbitrator to determine his
jurisdiction is to state that the order of the Hon’ble
Supreme Court is faulty. The award vitiates the finality to
adjudication process between the parties. The order of
this Court as confirmed by the Hon’ble Supreme Court is
final and binding between the parties and acts as
res judicata. Even assuming that it is not so, the
respondents did not raise any issue of jurisdiction before
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the Tribunal and in fact confirmed the appointment.
Having confirmed the appointment, the Tribunal could
not have suo-moto answered the issue of jurisdiction,
without even being raised by or put to the parties. Such
an award is not merely contrary to the Act, but it is
also violative of the fundamental policy of Indian Law and
is patently illegal.
12. In support of his submissions, Mr.Chinnappa
has also relied upon the following case laws:-
1. Anant Construction (P) Ltd. V. Ram Niwas
MANU/DE/407/1994
2. Rajan Ram v. Jai Prakash Singh & Ors.,
(2019) 8 SCC 701
3. Ranganayakamma and Anr. v.
K.S Prakash (D) by LRs. And Ors
(2008) 15 SCC 673
4. A.C Ananthswamy and Ors. v.
Boraiah (dead) by LRs.
(2004) 8 SCC 588
5. Ajjapalli Papireddy and Anr. v.
Ajjapalli Narayana Reddy and Anr.
MANU/AP/2646/2013
13. The case of the respondents before the trial
Court as contended by their counsel was by not disputing
the relationship between the parties and also that,
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Arbitral Award dated 28.03.2007 was passed by 05
Arbitrators. It was conceded, that the said award has
not been challenged. They have denied the execution of
Gift Deed, Partition Deed and Memorandum of Family
Settlement on 21.06.2007, in pursuance of the award
dated 28.03.2007 by the 05 Arbitrators. They have
denied that, in the year 2008, they have belatedly
decided to agitate the dispute between them and
appellants, by filing a suit in OS No.5221/2008. They
have not disputed the filing of Section 8 application in OS
No.5221/2008. They have also not disputed the fact of
appointment of the sole Arbitrator. They have not
disputed dismissal of the writ petition as well as the SLP.
They have not admitted the pleading of the appellants
that once the dispute has been referred to Arbitration by
the Court, the Arbitrator is bound by the reference and
has no jurisdiction to look into reliability of the alleged
agreement containing Arbitration Clause and to pass
appropriate order. According to them, the Arbitrator has
got jurisdiction to find-out whether the alleged
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agreement is relatable to the dispute and that he can
proceed with the merits of the case. The Memorandum
of Family Settlement dated 21.06.2007 cannot be trusted
as it is apparently an ante-dated document. Therefore,
the Arbitration clause in the said document cannot be
made use of when serious allegation of fraud has been
made. The Arbitrator is justified in recording its finding
that, he has no jurisdiction to adjudicate.
14. According to the learned counsel, a perusal of
the order passed by this Court in WP No.16963/2008
would make it evident that the jurisdiction of the
Arbitrator under Section-16 was kept open. So, the issue
of jurisdiction could have been determined by the learned
Arbitrator under Section-16 of the Act. That apart, it is
his submission that, though the order under Section 8
came to be passed on 13.11.2008, no steps were taken
by the appellants herein to initiate the arbitration
proceedings. As such seeking appointment of the
Arbitrator, the respondents herein filed Civil Misc. Petition
No.13/2010. The same came to be allowed vide order
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MFA No.2231 of 2021
dated 29.03.2010. He stated that the appellants herein
opposed the said application. It was after over-ruling the
objection on the application, the Arbitrator was
appointed. The said order was challenged by the
appellants herein before the Apex Court. The said
petition was disposed of by the Apex Court keeping all
contentions open. As such, the invocation of Section-11
by the respondents herein cannot be considered as
waiver of the claims of the respondents herein. In view
of the observations made by the High Court in W.P.
No.16963/2008, the filing of CMP No.13/2010 was
inevitable, in as much as the respondents herein were in
need of a forum to get their grievances redressed. In
any event, having regard to the language employed in
WP No.16963/2008 and contentions kept open by the
Hon’ble Supreme Court, the aspect of jurisdiction of the
Arbitrator was rightly decided by the Arbitrator himself.
15. It was the Arbitrator, who entered reference
and recorded evidence and on being brought to his notice
that the alleged Memorandum of Family Settlement
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dated 21.06.2027 which itself comprises arbitration
clause is an ante-dated document, he eventually passed
award holding that he has no jurisdiction to adjudicate
upon the dispute raised by the parties. The said
observation is in consonance with the ratio laid down by
the 7 Judge Bench of the Hon’ble Supreme Court in Re:
Interplay between Arbitration Agreements under
the Arbitration and Conciliation Act, 1996 and The
Indian Stamp Act, 1899, more specifically Paragraph
158 thereof. That apart, in respect of the judgment in
AS No.72/2017, which is the impugned order, he stated,
it was incumbent upon the appellants to prove that the
award is in conflict with public policy of India, or that it
contravenes the fundamental policy of Indian Law or that
it is in conflict with the most basic notions of morality
and justice. According to him, an alleged tainted
agreement which was apparently ante-dated, falls in the
mischief of Section 23 of Indian Contract Act, the same
has been rightly discarded by the Arbitrator. As such, the
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Trial Court has rightly passed the judgment dismissing
the challenge of the appellants herein, to the award.
16. He contested the submission of Mr.Chinnappa
that, since the alleged Memorandum of Family
Settlement was registered on 31.07.2007, the
mentioning of date as 21.06.2007 did not make any
difference, by stating that, in terms of Section 47 of the
Indian Registration Act, though the registration is
subsequent to the date of execution, it shall relate back
to the date of the deed. As such, the alleged document
dated 21.06.2007 drawn on the stamp paper obtained by
the appellants herein on 22.06.2007 incorporating a
reference to the alleged Gift Deed and the Deed of
Partition dated 21.06.2007 cannot be considered to be a
valid document. Once the Memorandum of Family
Settlement incorporating an arbitration clause goes, the
consequential document(s) also goes, making the appeal
non-maintainable. He has also referred to the
subsequent developments by filing the documents along
with a memo dated 03.12.2024. According to him, after
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the passing of the award by the learned Arbitrator on
05.04.2017, the respondents herein filed an application
seeking revival of the suit in OS No.5221/2008. The said
application was allowed by the Trial Court vide order
dated 05.01.2018. On revival of the suit, the appellants
herein have filed written statement. Based on the rival
pleadings, issues have been framed. The appellants
herein have sought for recasting of the issues which
prayer was accepted and the issues have been recasted
on 01.12.2020.
17. Having participated in the proceedings of suit
and having not challenged the revival of the suit, the
appellants cannot be heard in this appeal. He referred to
the judgment in the case of Gaiv Dinshaw Irani and
others Vs. Tehmtan Irani and others to contend, the
requirement of taking note of the subsequent
developments in the proceedings, is well settled. So, it
is his submission, looking from any angle, the appeal
deserves to be dismissed, since the appellants have
already subjected themselves to the jurisdiction of the
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Trial Court and the Trial Court is seized of the matter, the
appeal is liable to be dismissed. He also relied upon the
judgment of the Hon’ble Supreme Court in Mcdermott
International Inc. Vs. Burn Standard Co. Ltd., and
Others to state that the Court cannot correct the errors
of the Arbitrator(s). It can only quash the award, leaving
the parties to begin arbitration again, if they desire.
18. A reference is also made to the judgment in
the case of State Trading Corporation of India Ltd.
Vs. M/s. Toeper International Asia Private Limited
to contend that the annulment operates to negate the
decision in whole or in part, thereby depriving the portion
negated by legal force and returning the parties as to
that portion, to their original litigating positions. So he
prays that the appeal be dismissed with costs.
19. Learned counsel for the respondents has relied
upon the following judgments:-
1. Mcdermott International Inc Vs Burn Standard Co. Ltd & Ors
reported in 2006 (11) SCC 181.
2. State Trading Corporation of India Ltd Vs
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M/S Toeper International Asia Pvt Ltd
reported in 2014 SCC Online Del 3426
3. Steel Authority of India Ltd Vs
Indian Council of Arbitration
reported in 2015 SCC Del 13394
4. Kinnari Mullick and Anr Vs
Ghanshyam Das Damani reported in
2018 (11) SCC 328.
5. Re: Interplay between Arbitration Agreements
under the Arbitration and Conciliation Act, 996 and
the Indian Stamp Act, 1899
reported in MANU/SC/1325/2023
6. Gaiv Dinshaw Irani Vs Tehmtan Irani
reported in MANU/SC/0475/2014
ANALYSIS
20. Having heard the learned counsel for the
parties and perused the record, the facts emerge from
the record are that, the parties herein are related to each
other being the brothers and their wives. Various
disputes arose between them. Those disputes were
referred to the Arbitration consisting of Five Members
and the reference has resulted in an award dated
28.03.2007. It was the case of the appellants herein
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that pursuant to the award dated 28.03.2007, a Gift
Deed, Partition Deed and Memorandum of Family
Settlement were executed on 21.06.2007 and registered
on 31.07.2007. In the year 2008 the respondents filed
OS No.5221/2008 before the City Civil Court, Bengaluru,
challenging the Gift and Partition Deed dated 21.06.2007
on the ground that they have been vitiated by fraud and
therefore, not binding on them.
21. In the said suit, the appellants herein have
filed an application under Section 8 of the Act of 1996
contending there exists an Arbitration Clause in the
Family Settlement Agreement and have sought a
reference of the matter to the Arbitration. The said
application was allowed vide order dated 13.11.2008 and
the matter was referred to the arbitration.
22. The case of the respondents was, no
Memorandum of Family Settlement dated 21.06.2007
was entered between the parties. It was also contended
that, the alleged settlement agreement dated 21.06.2007
is a fraud played by the appellants. The said objection
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was over-ruled by the Court on the ground that, where
an arbitration clause exists, the Court has mandatory
duty to refer the dispute between the parties.
23. The order dated 13.11.2008 passed in OS
No.5221/2008 was challenged by the respondents herein
before this Court in Writ Petition No.16963/2008 on the
ground that, since the allegations of fraud made the
matter is required to be tried by the Civil Court and the
matter cannot be referred to the arbitration.
24. The Paragraphs- 13 & 14 of the order of this
Court dated 11.03.2009 in Writ Petition No.16963/2008
(GM-CPC) reads as under:-
“13. In the instant case, the facts and the
circumstances are totally different. The petitioners are
denying the existence of the Memorandum of Family
Settlement, whereunder a clause pertaining to
reference to Arbitration of all disputes is made.
Whether such an agreement is in existence or whether
it is validly executed or is tainted by fraud or
misrepresentation can also be agitated before the
Arbitrator. The mandate of Section 8 of the 1996 Act is
very clear that wherever the parties have agreed to
refer the dispute to Arbitration, the Court is required to
refer the same to Arbitration as it does not have the
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MFA No.2231 of 2021
jurisdiction to entertain the same in the face of such
Arbitration clause.
14. Reliance placed by the petitioners on the
judgment of the Apex Court in this regard in the case
of Hindustan Petroleum Corpn Ltd. Vs. Pinkcity
Midway Petroleums reported in (2003) 6 S.C.C.
503 is apposite. The observations made in paragraphs
14, 15 and 16 of the said Judgment makes the position
very clear. The Apex Court by referring to Section 8
and Section 16 of the Arbitration and Conciliation Act,
1996 has clearly held that objection regarding the
applicability of the Arbitration Clause will have to be
raised before the Arbitrary Tribunal concerned. The
Apex Court has further held in the said decision that
Section 16 empowers the Arbitrary Tribunal to rule on
its own jurisdiction including on any objections with
respect to the existence or validity of the Arbitration
agreement.”
(emphasis supplied)
25. The respondents herein have filed a Special
Leave Petition No.19811/2009 against the order dated
11.03.2009 passed in Writ Petition No.16963/2008. The
Special Leave Petition was dismissed on 24.08.2009.
Interestingly, a CMP was filed by the respondents before
this Court being CMP No.13/2010 under Section 11(6) of
the Act of 1996 to appoint a impartial Arbitrator and it is
– 27 –
MFA No.2231 of 2021
pursuant thereto, this Court, vide order dated
29.03.2010, appointed the learned Arbitrator, a Former
Judge of this Court to resolve the dispute between the
parties.
26. The submissions made by Mr. Dhyan
Chinnappa can be summed-up in the following manner:
i) The appointment under Section 11 of the Act of
1996 is a Judicial Order;
ii) Once the Court has up-held the appointment of
an Arbitrator, the same is final and binding
between the parties;
iii) No party can raise the issue of Jurisdiction of the
Arbitrator to arbitrate;
iv) The Order passed by this Court has been up-
held by the Hon’ble Supreme Court;
v) If the learned Arbitrator has to determine his
jurisdiction it is like stating that the order of the
Hon’ble Supreme Court is faulty;
vi) The order passed by this Court has been
confirmed by the Hon’ble Supreme Court, is
binding between the parties and acts as res-
judicata;
– 28 –
MFA No.2231 of 2021
vii) Even assuming it is not so, the respondents did
not raise any issue of jurisdiction before the
Tribunal and in fact, confirms the appointment;
viii) The Tribunal could not have suo-moto answer
any issue of jurisdiction without even being
raised by or put to the parties. Such an award
is not only contrary to the Act, but it is also
violative of fundamental Policy of Indian Law
and it is patently illegal.
27. We have already re-produced the relevant
paragraphs of the order passed by the Trial Court.
28. Vide the award dated 05.04.2017, the learned
Arbitrator has primarily decided the impugned issue by
stating in Paragraph-5 onwards as under:-
“5. Strangely, this is a case of both the parties
having taken due interest in bringing into existence
this Memorandum of Family Settlement. While the
claimants Sri Narendra Kumar and Smt. Kalpana are
now contending that this document also is vitiated by
fraud, like the Partition Deed and Gift Deed, the
document itself would show that the stamp papers for
this document were purchased by none else than Sri
Narendra Kumar, and the document would further
show that the registration expenses, scanning fee at
the time of registration were all paid by Sri Narendra
– 29 –
MFA No.2231 of 2021
Kumar himself. While this is the situation with regard
to these documents so far as Sri Narendra Kumar is
concerned, Sri Ashok Kumar throughout has been
maintaining the correctness and validity of this
document right from the time of invoking Section 8 of
the Arbitration & conciliation Act. The argument,
therefore, that has been put forth by learned Senior
Counsel Sri Dhyan Chinnappa is that, when the parties
themselves are shown to have actively participated in
bringing into existence this document containing an
arbitration clause, why should the Tribunal take
serious note of a fact that has arisen only at the stage
of arguments. I am, however, not convinced of this
argument.
6. In the absence of a clause in the agreement
between the parties, with regard to referring of the
dispute to arbitration, no jurisdiction vests with the
Arbitral Tribunal. Obviously, such agreement between
the parties should be a valid agreement, enforceable in
law. For the consideration of an object of agreement
being unlawful, Section 23 of the Contract Act inter
alia refers to the Court recording it as immoral or
opposed to public policy. Here is a document titled as
Memorandum of Family Settlement being shown to
have been executed on 21.6.2007. Clause-5 of the
said document deals with an arbitration agreement.
The stamp papers for this document clearly show that
the said stamp papers were purchased by Sri Narendra
Kumar on the next day i.e., on 22nd June 2007. I am
referring to the evidence on this aspect for the limited
purpose of accepting the validity or otherwise of this
document. One of the Arbitrators, as well as, one of
– 30 –
MFA No.2231 of 2021
the attesting witnesses – RW-5 Sri A.V.Rukhana, in
para-6 of his affidavit by way of examination-in-chief,
states that he was informed that there was another
document called the Memorandum of Family
Settlement, which was signed on the same day, but
that it was however informed to them that the
document would be registered only after the money to
be paid by Sri Ashok Kumar and his family, was paid
to Sri Narendra Kumar and his family. Similarly,
another such Arbitrator and attestor RW-1 Sri Prafulla
Raja, in his affidavit by way of examination-in-chief, in
para-7, states that the parties had also decided to sign
another document called the Memorandum of Family
Settlement on the same day, but only after the money
was paid by Sri Ashok Kumar and his wife, to Sri
Narendra Kumar and his wife. It is then that extensive
evidence is led to show that on the very day i.e., on
21.6.2007 in the night, in the presence of the said
elders of the community, Sri Ashok Kumar paid Rs.10
lakhs to Sri Narendra Kumar. It was thus not just
accidental that though the stamp papers were
purchased on 22.6.2007, the date was by oversight
mentioned as 21.6.2007 as the date of the
Memorandum of Family Settlement. As per the case
put forth, there had to be necessarily a document
styled as Memorandum of Family Settlement shown to
have come into existence on the very day the Gift
Deed and Partition Deed came into existence viz.,
21.6.2007, though its registration was intended to be
delayed until the payment was made by Sri Ashok
Kumar and it is then that the evidence is led to show
that, that very night, Sri Ashok Kumar paid Rs.10
– 31 –
MFA No.2231 of 2021
lakhs to Sri Narendra Kumar. Thus, showing the date
of execution of Memorandum of Family Settlement as
21.6.2007, but the document prepared on any day
between 22.6.2007 and 31.6.2007, is not by
inadvertence. It is intentional, in the sense that, they
had to bring up a document purporting to have been
executed on 21.6.2007, but, that exercise of bringing
of that document happened subsequently on any day
between 22.6.2007 and 31.7.2007. Thus, the
document was intentionally got up. The document
which purports to be of 21.6.2007, is thus, in fact, no
so. This Tribunal can assume jurisdiction and proceed
to adjudicate upon the disputes raised herein only by
winking at this fact of the document having been got
up. At the time the parties did this, I would certainly
not even suggest that they had any criminal intent as
contemplated under Section 192 of IPC, dealing with
fabrication of false evidence, for being used as
evidence in the judicial proceeding. Nevertheless, the
truth remains that if the dispute did arise, this
document was intended to be used as an Arbitration
Agreement, to have the dispute settled by arbitration
through an Arbitral Tribunal, now that, even though
belatedly at the stage of arguments, it is found that
the document is not what it purports to be, viz., that
the document dated 21.6.2007 is not executed and
could not have been executed on 21.6.2007, but has
come into existence subsequently, I am of the opinion
that by winking at this factual situation and to proceed
to assume jurisdiction and to adjudicate the disputes
raised herein as an Arbitrator would amount to the
Tribunal also becoming a party to this exercise by the
– 32 –
MFA No.2231 of 2021
parties, though I repeat, is not done by the parties
with any criminal intention, but in a casual manner not
realizing the consequences of creating a Arbitral
Tribunal by an agreement under a document which is
ante dated.
7. I am, therefore, of the opinion that this Tribunal has
no jurisdiction to adjudicate upon the disputes raised
herein. Nothing said herein should be taken as an
observation on the merits of the case by either of the
parties. The parties should be free to pursue their
remedies in accordance with law.
8. By the order on IA.II, dated 27.4.2015, under
Section 17 of the Act, interim injunction had been
granted with reference to Clause 3.2 of this very
document – Memorandum of Family Settlement, on the
basis that the said document is dated 21.6.2007. Now
that a contrary view is taken with regard to the very
document, leaving the parties to have their remedies
worked out in accordance with law, this interim
injunction also needs to be vacated.
In view of the above, I pass the following:
AWARD
For want of a valid arbitration
agreement between the parties, this
Arbitral Tribunal has no jurisdiction
to adjudicate upon the disputes
raised by the parties herein.
The parties are free to pursue
their remedies in accordance with
law.
– 33 –
MFA No.2231 of 2021
Interim injunction granted on
IA.II, on 27.4.2015, hereby stands
vacated.
In the circumstances, the parties
shall bear their own costs.
Under Section 32(1) of the
Arbitration & Conciliation Act, 1996,
this Arbitral proceeding hereby
stands terminated.
Sd/-
(JUSTICE G. PATRI BASAVANA GOUD(RETD.)
SOLE ARBITRTORBengaluru
Date: 05.04.2017
29. The award of the learned Arbitrator directing
that the Arbitral Tribunal has no jurisdiction to adjudicate
upon the disputes is because of the fact that, the
document titled as Memorandum of Family Settlement
being shown to have been executed on 21.06.2007,
whereas the Stamp Paper on which it is drawn was
purchased on 22.06.2007.
30. The learned Arbitrator has also noted, that
one of the attesting witnesses in his examination-in-chief
stated, he was informed that there was another
– 34 –
MFA No.2231 of 2021
document called as Memorandum of Family Settlement,
which was signed on the same day. He also stated even
the Attestor-RW.1 i.e., Sri. Prafulla Raja in his affidavit
stated that the parties have decided to sign another
document called Memorandum of Family Settlement on
the same day, but only after the money was paid by the
appellants to the respondents. He is of the view, it is
then that extensive evidence is led to show that on the
very date i.e., on 21.06.2007 in the night, in the
presence of the elders of the community, the Appellant
No.1 paid Rs.10.00 Lakhs (Rupees Ten Lakhs) to the
Respondent No.1. So, it was not accidental that, some
Stamp Papers were purchased on 22.06.2007. The date
was by over sight mentioned as 21.06.2007, as the date
of Memorandum of Family Settlement. According to him,
there had to be necessary document styled as
Memorandum of Family Settlement shown to have come
into existence on the very day that the Gift Deed and
Partition Deed came into existence on 21.06.2007,
though its registration was intended to be delayed until
– 35 –
MFA No.2231 of 2021
the payment is made. Thus, showing the date of
execution of the Memorandum of Family Settlement as
21.06.2007, but the document prepared on any date
between 22.06.2007 and 31.06.2007, is not by
inadvertence. Thus, according to the learned Arbitrator,
it is intentional in the sense that they had to bring-up a
document purporting to have been executed on
21.06.2007 but that exercise of bringing of that
document happened subsequently on any day between
22.06.2007 and 31.06.2007. Thus the document was
intentionally got up. He was of the view that, he can
assume jurisdiction and proceed to adjudicate upon the
disputes raised herein only by winking at the fact that
the document having been brought up. He concludes
that, even belatedly at the stage of arguments if it is
found that the document is not what is purports to be
viz., that document dated 21.06.2007 is not executed
and could not have been executed on 21.06.2007, but
has come into existence subsequently, he held by
winking at the said factual situation and to proceed to
– 36 –
MFA No.2231 of 2021
assume Jurisdiction and to adjudicate the dispute raised
before the Arbitrator would amount to the Tribunal (i.e.,
He) also becoming party to the exercise by the parties.
Accordingly he held that the Tribunal has no jurisdiction
to adjudicate upon the disputes raised therein.
31. No doubt, that the appointment of the
Arbitrator has been confirmed till the Hon’ble Supreme
Court and at no point of time did any one raised
objection on the arbitrability and it is a settled law, such
an objection need to be taken/pleaded before filing
objections and the Arbitrator could not have decided the
issue suo moto, but the fact of the matter is that a doubt
has arisen in the opinion of the Arbitrator on the
execution of the document, i.e., Memorandum of Family
Settlement on 21.06.2007, as the Stamp Paper was
bought/purchased on 22.06.2007. Surely when the
stamp paper has been purchased on 22.06.2007, the
settlement could not have been executed on 21.06.2007.
32. The Arbitrator is not unjustified to conclude
that, the Tribunal has no jurisdiction to adjudicate the
– 37 –
MFA No.2231 of 2021
dispute raised, as the Arbitration Clause should be in a
valid agreement to be enforceable in law. The
foundation of such a conclusion has already been
narrated above. It is a possible view. The plea of Mr.
Dhyan Chinnappa that, the issue of appointment of
Arbitrator having been up-held till the Hon’ble Supreme
Court, the Arbitrator could not have concluded so, though
sounds appealing on a first blush, but on a deeper
consideration of the fact that, after passing of the award
by the learned Arbitrator on 05.04.2017, the respondents
herein have filed an application seeking revival of the suit
in OS No.5221/2008, the said application was allowed by
the Trial Court vide order dated 05.01.2018 and on the
revival of the suit, the appellants herein had filed a
written statement and based on the rival pleadings,
issues have been framed. The appellants herein have
also sought recasting of the issues, which were re-casted
on 01.12.2020. So in that sense the appellants having
participated in the suit proceedings and having not
challenged the revival of the suit, they cannot be heard
– 38 –
MFA No.2231 of 2021
to contend the dispute need to be decided through
Arbitration. The reliance placed by the learned counsel
for the respondents on the judgment in the case of Giav
Dinshaw Irani Vs. Tehmtan Irani (supra) to contend
that, the requirement of taking note of subsequent
developments when such events have a direct bearing on
the relief claimed by a party becomes relevant. The
submission of Mr. Chinnappa was, as the challenge to
the award was pending before the Trial Court and this
Court, and the appellants were awaiting decision to the
challenge and as such they could not have challenged the
orders passed by the Court in civil suit, is not convincing
for the simple reason, the appellants could have very
well sought the stay of the award dated 05.04.2017 of
the learned Arbitrator, or could have sought the stay of
proceedings in suit till a decision is made in the Section
34 petition. That apart, almost seven years have elapsed
from the date of revival of the suit. The proceedings in
the suit have reached the stage of evidence and beyond
– 39 –
MFA No.2231 of 2021
that, it is too late in the day to put the clock back and
relegate the parties to Arbitration.
33. Additionally we note that, pursuant to the
order dated 25.03.2022 of the Trial Court, the plaint has
been amended seeking a declaratory relief to hold the
memorandum of family settlement dated 21.06.2007 as
null and void. It means, in respect of same family
settlement which incorporates the Arbitration Clause/
agreement, a declaration is sought to treat the same as
null and void. In that sense also, it is doubtful that the
challenge/dispute to the family settlement can be
decided by an Arbitrator, who is a creature of the same
family settlement. The amendment order incorporating
the challenge to family settlement appears to have
attained finality as no appeal has been filed. At least,
nothing has been placed before us to show a challenge in
that regard is pending.
34. The reliance placed on the judgment of the
Hon’ble Supreme Court in the case of S.B.P. and Co. Vs.
Patel Engineering [(2005) 8 SCC 618] and Chloro
– 40 –
MFA No.2231 of 2021
Controls India Pvt. Limited Vs. Severen Trent
Water Purification Inc. [(2013) 1 SCC 641] to
contend that the findings made under Section-11 of the
Act of 1996 cannot be questioned by the Arbitral Tribunal
is concerned, there cannot be any dispute on the
proposition, but the issue of arbitrability/jurisdiction can
be decided by an Arbitrator. In view of our conclusion
above and also in view of the conclusion drawn by the
learned Arbitrator in the award which was challenged by
the appellants before the Trial Court in a petition under
Section 34 of the Act of 1996 and the same having been
negated, we are of the view this appeal filed under
Section 37 of the Act of 1996 lacks merit, as the Trial
Court held, before passing the award, the Arbitral
Tribunal has scrutinized the oral and documentary
evidence placed with reference to law and facts of the
case and also when the Arbitral Tribunal found there was
no valid arbitration agreement between the parties and
as such, it has no jurisdiction to adjudicate upon the
dispute between the parties and upheld the award.
– 41 –
MFA No.2231 of 2021
Moreover, it is seen the appellants have filed the present
appeal challenging the order dated 07.02.2020 on
16.02.2021, which is almost one year after the passing
of the impugned order, the challenge has to be rejected.
35. It is also important to state that, it is a
settled law in terms of the judgment in Mcdermott
International Inc. Vs. Burn Standard Co. Ltd.,
(supra) and also the State Trading Corporation of
India Limited Vs. Toeper International Aisa Pvt.
Limited (supra), on which reliance has been placed by
the counsel for the respondents, that the Court, while
exercising jurisdiction under Section 34, can only set
aside the award or uphold the same, it cannot relegate
the parties to their original litigating position, that is
reviving the Arbitration Proceedings.
36. Insofar as the judgment in the case of
Ananth Construction (P) Ltd Vs Ram Niwas
(Supra) is concerned, Mr. Chinnappa has relied upon
Paragraph No.10.2, more specifically the sub-para (19)
and stated, a distinction sought to be urged between a
– 42 –
MFA No.2231 of 2021
plea requiring amendment of the plaint and a plea
sought to be introduced by replication shall have to be
kept in view. According to him, a plea which essentially
constitutes the foundation of a claim made by the
plaintiff or which is essentially a part of plaintiff’s cause
of action cannot be introduced through a replication, in
other words a replication is always a defensive pleading
in nature. The said preposition of law as advanced by Mr.
Chinnappa shall not have any applicability for the issue
which arises for consideration and also in view of our
finding above.
37. In the case of Raja Ram Vs. Jai Prakash
Singh and Others (supra), reliance has been placed by
Mr. Chinnappa on Paragraphs- 4, 11, 16 and 18, which
we reproduce as under is an argument on the merits of
the dispute. Suffice to state, the issue is pending
consideration in the suit. Surely, for the limited issue
which arises for consideration in this appeal, the
judgment has no applicability:-
– 43 –
MFA No.2231 of 2021
“4. Learned counsel for the
respondent/defendants submitted that under Section
101 of the Evidence Act, 1872 the initial onus lay on
the plaintiffs by establishing a prima facie case for
undue influence and only then the onus would shift to
them. The necessary pleadings in respect of the same
were completely lacking. The First Appellate Court
wrongly shifted the burden upon the respondents. The
deceased may have been old and infirm, but he was
not deprived of his mental faculties so as not to know
the nature of documents executed by him. He was
alive approximately for ten months after the execution
of the deed, but never questioned the same. The
deceased had executed another sale deed two years
earlier in 1968, Exhibit 10 in favour of third persons
which has not been questioned by the appellant. It
establishes that the deceased was not in a condition
where undue influence could be exercised over him.
There can be no presumptions merely on account of
his old age. DW1 was a witness to the sale deed and
was present at the time of registration. The deceased
admitted before the sub-registrar having received a
sum of Rs.2,000/ earlier and Rs.4,000/ was paid at the
time of registration. The SubRegistrar has not recorded
any adverse inferences about the condition or capacity of
the deceased at the time of registration. A registered
instrument will carry a presumption about its correctness
unless rebutted.
Xxxx xxxxx xxxxx xxxxx
- 44 -
MFA No.2231 of 2021
11. That leads us to the question of undue influence.
The pleadings in the plaint are completely bereft of any details
or circumstances with regard to the nature, manner or kind of
undue influence exercised by the original defendants over the
deceased. A mere bald statement has been made attributed to
the infirmity of the deceased. We have already held that the
deceased was not completely physically and mentally
incapacitated. There can be no doubt that the original
defendants were in a fiduciary relationship with the deceased.
Their conduct in looking after the deceased and his wife in old
age may have influenced the thinking of the deceased. But that
per se cannot lead to the only irresistible conclusion that the
original defendants were therefore in a position to dominate the
will of the deceased or that the sale deed executed was
unconscionable. The onus would shift upon the original
defendants under Section 16 of the Contract Act read
with Section 111 of the Evidence Act, as held in Anil Rishi vs.
Gurbaksh Singh (supra), only after the plaintiff would have
established a prima facie case. The wife of the deceased was
living with him and had accopanied him to the office of the sub-
registrar. The plaintiff has not pleaded or led any evidence that
the wife of the deceased was also completely dominated by
the original defendants. In every cast, creed, religion and
civilized society, looking after the elders of the family is
considered a sacred and pious duty. Nonetheless, today it has
become a matter of serious concern. The Parliament taking
note of the same enacted the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. We are of the
considered opinion, in the changing times and social mores,
that to straightway infer undue influence merely because a
sibling was looking after the family elder, is an extreme
proposition which cannot be countenanced in absence of
sufficient and adequate evidence. Any other interpretation by
inferring a reverse burden of proof straightway, on those who
– 45 –
MFA No.2231 of 2021
were taking care of the elders, as having exercised undue
influence can lead to very undesirable consequences. It may
not necessarily lead to neglect, but can certainly create doubts
and apprehensions leading to lack of full and proper care
under the fear of allegations with regard to exercise of undue
influence. Law and life run together. If certain members of the
family are looking after the elderly and others by choice or
by compulsion of vocation are unable to do so, there is bound
to be more affinity between the elder members of the family
with those who are looking after them day to day
Xxxx xxxxx xxxxx xxxxx
16. In Subhas Chandra (supra), it was further
observed that there was no presumption of imposition
merely because a donor was old and weak. Mere close
relation also was insufficient to presume undue
influence, observing as follows:
“Before, however, a court is called upon to
examine whether undue influence was
exercised or not, it must scrutinise the
pleadings to find out that such a case has
been made out and that full particulars of
undue influence have been given as in the
case of fraud. See Order 6, Rule 4 of the
Code of Civil Procedure. This aspect of the
pleading was also given great stress in the
case of Ladli Prasad Jaiswal [1964] 1 SCR
270 above referred to. In that case it was
observed (at p. 295):
“A vague or general plea can never serve this
purpose; the party pleading must therefore be required
to plead the precise nature of the influence exercised,
– 46 –
MFA No.2231 of 2021
the manner of use of the influence, and the unfair
advantage obtained by the other.”
Xxxx xxxxx xxxxx xxxxx
“18. The first appellate court, completely erred
in appreciation of the facts and evidence in the case.
There can be no application of the law sans the facts
of a case. The primary ingredients of the law need to
be first established by proper pleading supported by
relevant evidence. Cases cannot be decided on
assumptions or presumptions. We do not think that
the present calls for exercise of any discretionary
jurisdiction under Article 136 of the Constitution as a
fourth court of appeal. In Pritam Singh (supra) it was
observed:
“9. …Generally speaking, this Court will not
grant special leave, unless it is shown that
exceptional and special circumstances exist,
that substantial and grave injustice has
been done and that the case in question
presents features of sufficient gravity to
warrant a review of the decision appealed
against. Since the present case does not in
our opinion fulfil any of these conditions, we
cannot interfere with the decision of the
High Court, and the appeal must be
dismissed.”
Xxxx xxxxx xxxxx xxxxx
- 47 -
MFA No.2231 of 2021
38. Similarly in Ranganayakamma and
Another Vs. K.S. Prakash (Dead) by LRs., and
Others (supra) more specifically Paragraphs- 39, 40,
42 and 43, on which the reliance is placed, the
paragraphs are also for a the similar preposition in
respect of the merit of the dispute between the parties.
Since, the suit is pending, the issue does not really
arises for consideration.
39. In so far as the case in A.C. Ananthaswamy
and others Vs. Boraiah (Dead by LRs.) (supra) is
concerned, the same shall not be applicable in the facts
of this case and for the issue which arises for
consideration.
40. In so far as the case in Ajjapalli Papireddy
and Ors Vs. Ajjapalli Narayana Reddy and Ors
(supra) is concerned, having seen the said judgment, it
is also on similar preposition, which has also no
applicability, in the facts.
– 48 –
MFA No.2231 of 2021
41. In view of our above discussion, we do not
see any merit in this appeal. The appeal is dismissed.
42. No costs.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
KGR*
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