Hari Chand Gandhi vs Suresh Gandhi and Others

Swatanter Kumar, J.—This revision is directed against the order passed by the learned Additional District Judge (II), Faridabad dated 24.4.1999. The learned Counsel for the petitioner basically contended that the compromise before the Court was a result of fraud and as such the only remedy available to him was to file a separate suit. He further contended that on the averments made in the plaint, the petitioner was entitled to interim injunction in relation to execution of a decree dated 28.9.1992.

I am unable to appreciate any substance in either of the afore-stated contentions. Admittedly, the petitioner herein had been a party to the partnership deed dated 11.3.1987 which contained the arbitration clause. An arbitrator was appointed in furtherance to the arbitration agreement between the parties and because of some disputes having arisen. The petitioner participated in the arbitration proceedings and finally an award was pronounced by the arbitrator. The petitioner vide letter dated 8.2.1992 had in fact requested defendants No. 2 and 3 to modify the award as they had wrongly included the assets of M/s Gandhi Silk Emporium. Under the provisions of Section 14 and 17 of the Arbitration Act, the parties approached the Court for award being made rule of the Court. The petitioner filed objections on 26.6.1992 taking up the pleas now sought to be raised and prayed for acceptance of objections and consequentially settling aside of the award in relation to the above aspect.

The parties including the petitioner made a statement before the Court and in furtherance to their statements objections were dismissed and the award dated 4.7.1991 was made rule of the Court and decree drawn in terms thereof vide order dated 28.9.1992. The said decree founded on the basis of the award of the arbitrator was not assailed in appeal or otherwise by the present petitioner. The petitioner has evolved a unique method of filing an independent suit challenging the award dated 4.7.1991 and decree dated 28.9.1992 being a nullity in law because the objections were got conceded by playing a fraud upon the petitioner.

From the above narrated facts, it is clear that once objections were filed to the award being made rule of the Court before the competent Court of jurisdiction the petitioner would be estopped from challenging the correctness thereof after withdrawal of his objections. If at all any fraud was played as alleged, it is for that Court alone or for the Appellate Court to look into the matter arid decide it in accordance with law. The scheme of Order 23 of the CPC in so far as it is principally applicable to the arbitration proceedings would have to be taken recourse to an in view of the provisions of the Indian Arbitration Act, the present suit appears to be misconceived and in any case cannot be said to be a bonafide exercise of legal rights which would entitle the petitioner to a discretionary relief like temporary injunction against the decree of competent jurisdiction.

The learned Counsel for the petitioner has relied upon the case of Vineet Kumar v. Smt. Bhagawadel, AIR 1997 All 403, in support of his contention. In the facts and circumstances of the present case, the said judgment is of no consequence inasmuch as the petitioner in that proceedings had not withdrawn his objections and got a decree passed on consent. No essential ingredient of fraud has either been stated herein. The petitioner cannot seek any advantage of that judgment in this case.

The learned Courts below have taken a concurrent view and rejected the application for injunction of the petitioner. In my humble view it has been rightly rejected and I see no merit in this revision or error of jurisdiction in the orders passed by the learned trial Court. As such the revision is dismissed in limine, without any orders as to costs.