TMI Blog2013 (4) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... t - Held that:- On perusal of the award as well as interim order passed by the learned arbitrator it is clear that though the plea of the legal heirs claiming the property in question to be self acquired property and not having been inherited the same from the borrowers and/or guarantors and though such plea not having been controverted by the applicant, the learned arbitrator could not have overlooked these facts and could not have confirmed the order of warrant of attachment on the properties of the legal heirs. The award shows patent illegality committed by the learned arbitrator in the impugned award on this issue. The learned arbitrator ought to have clarified in the impugned award that the legal heirs were liable only to the extent they had inherited any property from the estate of the deceased borrowers and/or guarantors. Not be accepted the submission made by the learned counsel appearing for the bank that the issue as to whether the properties in question which were attached by an order passed by the learned arbitrator were inherited by the legal heirs or not from the borrowers and/or guarantors has to be decided only in the execution proceedings and were not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings before the learned arbitrator, petitioners shall not sell, alienate, encumber, part with possession or create any third party rights in respect of the properties which were subject matter of attachment. - Arbitration Petition No. 85 of 2010, Arbitration Petition No. 23 of 2010 - - - Dated:- 2-4-2013 - R. D. Dhanuka,J. For the Petitioner : Mr. Navin Tiwari, Mr.Vasant Dhawan For the Respondent : Mr. Nikhil Sakhardande, i/b. Mr.Sandeep Waghmare JUDGMENT By these petitions filed under section 34 of the Arbitration and Conciliation Act, 1996, the petitioners seeks to challenge the awards made by the learned arbitrator under section 84 of the Multi State Cooperative Societies Act, 2002 (hereinafter referred to as Multi-State Act, 2002 ) allowing the claims made by the first respondent. As the learned counsel appearing for parties have made common arguments in all the four petitions, the same were heard together by consent of the parties finally at the admission stage and are being disposed of by this common order. 2. The facts in Arbitration Petition No. 85 of 2010 and Arbitration Petition No. 23 of 2010 are as under :- (a) The first petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le before appropriate authority. (c) On 28th June, 2006, the first respondent filed arbitration proceedings (RC/204/06) before the learned arbitrator appointed under section 84 of the Multi- State Act, 2002 inter alia praying for an award in the sum of Rs.4,92,34,124.40 with further interest thereon and cost. In the said proceedings, the petitioner nos. 3 to 6 have also been joined as legal heirs of the said Mr. Abdul Latif Dadan. The Petitioners filed common written statement and also counter claim before the learned arbitrator disputing the claims made by the first respondent on various grounds and also praying for an award against the first respondent in the sum of Rs.77.69 lacs with interest thereon. Petitioner no. 3 also filed affidavit of evidence in support of counter claim before the learned arbitrator. (d) On 9th October, 2007 the first respondent made an application under section 17 of the Arbitration Conciliation Act, 1996 before the learned arbitrator inter alia praying for an order of attachment before the award and for restraining the petitioners herein from selling and/or disposing of and/or creating any third party rights in respect of various properties. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mazgaon, Mumbai 400 010 and also flat No. 5 on 11th Floor, A Wing in the same building. On 22nd April, 2009, the learned arbitrator refused to vacate the ad interim order of attachment passed by him and confirmed the ad interim attachment order against the property of the petitioner no.5. (f) By award dated 10th June, 2009, made by the learned arbitrator, it is declared that the first respondent Bank was entitled to recover from the party respondents to the said proceedings who are petitioners herein and respondent no. 2 and 3 jointly and or severally, sum of Rs.12,52,858.86 with interest at the rate of 16.5% per annum with effect from 24th August, 1983 till 18th June, 2002 with further interest at the rate of 14% per annum from 19th June, 2002 till realization and cost of Rs.20,000/-. The learned arbitrator also declared that the attachment of the properties i.e. flat no. 4 and flat no. 5 in New Sai Niketan as well as various lands situated at Taluka Pen, District Raigad shall remain in force till the realization of the amount awarded. The learned arbitrator rejected the counter claim made by the petitioners with cost quantifying at Rs.20,000/-. (g) Being aggrieved by the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner no. 5 to 8 were impleaded as legal heirs of Mrs. Sharifa Tahkur, one of the partner of the petitioner no. 1. Written statement was filed by some of the petitioners before the learned arbitrator opposing claims made by the first respondent. (d) On 18th October, 2007, the first respondent filed an application for interim relief under section 96 of the Said Multi- State Act, 2002. In the said application, it was pleaded by the bank that the respondent no. 3(a) to 3(f) who are petitioners in the present petition were liable to the amount of claim made by the bank as legal heirs of the guarantors late Mrs. Sharifa Thakur and with a view to defeat the claim of the bank, the said respondents were in the process of disposing of and/or creating third party rights in respect of their property mentioned in the said application. The properties situate at village Rajapur bearing Gat No. 68A/1A, 1A/17 having area 28 acre and holding account no. 72. The learned arbitrator passed ad interim warrant of attachment in respect of the said property situated at village Rajapur and issued show cause notice. On 12th December, 2007 the petitioner no. 4 herein made an application before the learned ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed till full satisfaction of the claim. Being aggrieved by the said award dated 30th May, 2009, the principal borrower i.e. M/s. Thakur Electrical Engineering Works as well as partners of the said firm and the legal heir of the deceased partner have impugned the award by filing Arbitration Petition No. 1160 of 2009. Petitioner no. 4 herein who is one of the legal heirs of Mrs. Sharifa Thakur and whose property is attached by an order passed by the learned arbitrator has filed separate petition being Arbitration Petition No. 119 of 2010 impugning the said award. In none of these petitions the Bank has filed any affidavit in reply. 4. The learned counsel appearing for the petitioners, submits as under : (a) The learned arbitrator did not have jurisdiction to entertain the dispute as the dispute could be adjudicated only by the cooperative court. (b) The claims made by the Bank were barred by law of limitation. (c) The award is in violation of principles of natural justice and is passed without verifying the alleged claim of the first respondent and without recording evidence or allowing the petitioner to cross examine the first respondent and its witnesses. (d) The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti State Act, though the first respondent became Multi- State Cooperative bank, the dispute which was already pending in the cooperative court was bound to be decided by that court alone and no arbitration proceedings could have been filed in view of section 126(6) of the Multi-State Act, 2002. The learned counsel placed reliance upon the judgment of this court in Abhudaya Coop. Bank Vs. State of Maharashtra, 2009(4) Mh.L.J. 929. (l) In support of the plea that the award was in violation of principles of natural justice, the petitioners placed reliance upon the judgment of this court delivered on 16th March, 2012 in the case of Prakash Kumar Sinha Vs. Konkan Mercantile Cooperative Bank Ltd. And Ors. in Arbitration Petition No. 767 of 2009. (m) In support of the plea that even if the plea of jurisdiction is not raised by the party, the said plea is legal plea and can be accepted although no such plea had taken or precise issue is framed. Petitioner placed reliance upon the judgment of the Supreme Court in the case of State of Rajasthan Vs. Rav Raja Kalyan Singh AIR 1971 SC 2018. 5. The learned counsel Mr. Sakhardande and Ms. S. Shrikrishna appearing for the bank submits as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Supreme Court in the case of L.S. Synthetics Vs. Fairgrowth Financial Services Ltd. And another, (2004) 11 Supreme Court Cases 456 and particularly paragraph Nos. 38 and 39 in support of the plea that in case of inconsistencies between the special statute and Limitation Act, the special statute or local law would apply. (c) On the ground of bias raised by the petitioner in the petition, it is submitted by the learned counsel appearing for the respondent that no such issue was raised before the learned arbitrator. No application was made under section 12 read with section 13 of the Arbitration and Conciliation Act, 1996. The petitioner all through out participated before the learned arbitrator without raising any such dispute. The learned arbitrator was not appointed by the bank but was appointed by the Central Registrar under section 84(4) of the said Multi-State Act, 2002. The petitioner in any event has not furnished any particulars of alleged bias against the learned arbitrator. (d) On the issue of natural justice raised by the petitioner, it is submitted that after return of the plaint by the Cooperative Court, the Bank filed fresh statement of claim bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no reason why the statement of Mr. Byrne should not be accepted as true. He was admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses began on April 20, 1953, and four witnesses were examined on that date, among them being Sri G.B. Tawakley. If, as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to crossexamine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is clear that the learned Single Judge, without disputing the stand of the Appellant-Bank that it can retain the documents as a lien on the basis of the power conferred by Section 171 of the Indian Contract Act, took a view that having regard to the fact that the Respondent's husband Mahendran, who was the guarantor in respect of the loan advanced to one M/s. Somerset Tea Plantation, died and therefore, on his death, the liability as against the guarantor stands extinguished. With due respect, the learned Single Judge is not correct in law in holding that the liability under the guarantee: stands revoked or extinguished on the death of the Guarantor. Section 131 of the Contract Act clearly provides that in case of death of Guarantor, the date of guarantee/continuing of the guarantee executed in favour of the Bank stands revoked in respect of future transactions. Hence, we have no hesitation in holding that the liability of the guarantor cannot be extinguished on his death so far the liability which existed on the date of the death of the Guarantor. It is well settled that on the death of the Guarantor, the liability exists and such liability can be fastened on the estate of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cooperative Court and thus filing of fresh proceedings before the learned arbitrator in respect of the same cause of action was not maintainable. It is submitted that if the right and remedy has been provided in the same statute, one cannot be disassociated from the other. It is then submitted that the only right of the bank was to file appeal under section 149 of the MCS Act against the order dated 18th June, 2002 returning the plaint and not by adopting the proceedings under the provisions of the Said Multi-State Cooperative Societies Act, 2002. The learned counsel also placed reliance upon the judgment of the Supreme Court in 2004 11 SCC 456 in support of the plea that the Maharashtra Cooperative Societies Act is self contained code and thus the bank could not have adopted the proceedings under the Multi-State Cooperative Act, 2002. It is submitted that the change of statuts does not permit the bank to invoke provisions of the Multi-State Cooperative Societies Act. It is submitted that the learned arbitrator could not have passed any order against the legal heirs or in respect of their personal properties. It is submitted that if such award delivered by the learned arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrator. The Petitioner filed counter claim before the learned arbitrator without raising any plea of jurisdiction and unconditionally. In my view, the petitioners have thus waived the right to challenge the jurisdiction of the learned arbitrator in view of section 4 of the Arbitration Conciliation Act, 1996. The order passed by the Cooperative Court returning the plaint became final and binding on both the parties. No application under section 16 was filed by the petitioners before the learned arbitrator raising the issue of jurisdiction. 9. As far as the judgment of this court in the case of Abhyudaya Cooperative Bank Vs. State of Maharashtra, 2009(4) Mh.L.J. 929 relied upon by the petitioner is concerned, this court has distinguished the said judgment in the case of Abhyudaya Bank Vs. Rainproof Export Pvt. Ltd in the judgment delivered on 23rd January, 2013 in Arbitration Petition No. 935 of 2012 holding that under section 126(6) of the Multi-State Cooperative Act, 2002, after conversion of the Cooperative Bank into Multi-State Cooperative Bank, provisions of the said Multi-State Cooperative Societies Act, 2002 would apply to such multi-state cooperative bank and not Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the situation where the proceedings filed under section 101 of the Maharashtra Co-operative Societies Act against the borrowers was rejected by the Assistant Registrar. Revision application under section 154 of that Act was pending before the Divisional Authority. In the meanwhile the petitioner bank stood registered under the Multi State Act on 11th January, 2007. The Revisional Authority in view of such registration of the petitioner under the Multi State Co-operative Societies Act rejected the revision application on the ground that the authority under the Maharashtra Co-operative Societies Act did not have jurisdiction to decide the proceedings in respect of the society registered under the Multi State Act. The petitioner bank impugned the order of Revisional Authority by filing a writ petition. In the facts of that case, this court took a view that the proceedings under Maharashtra Co-operative Societies Act remaining un-affected could not fall within the ambit of Section 126 of the Multi State Co-operative Act. This court considering those facts quashed the order passed by the Revisional Authority and remanded the matter back to the revisional authority for disposal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion agreement between the parties or that the respondents not having given consent to appoint any arbitrator, the matter could not be referred to the arbitration under section 84 of the Multi State Act. In my view, remedy of the arbitration provided for under section 84 is statutory and no consent of the parties is required for referring the dispute to arbitration once condition under section 84 are satisfied. 32. From the perusal of the record, it is clear that the petitioners had filed application for withdrawal of the application under section 101 of the Co-operative Societies Act in view of the subsequent development. The application dated 25th November, 2008 was the first application filed by the petitioner for seeking liberty to withdraw the application filed under section 101 of the Maharashtra Co-operative Societies Act. During the pendency of the said application, the petitioner filed application under section 84 of the Multi State Act before the learned arbitrator for seeking resolution of dispute. By an order dated 12th January, 2009 the Assistant Registrar rejected the first application for seeking withdrawal. In these circumstances, the petitioner bank filed another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on this issue would be relevant which reads thus : 29. Savings : (1) .. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purposes of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 12. In view of the fact that Multi-State Cooperative Societies Act, 2002 is a special or local law prescribing period of limitation different from the period prescribed by the schedule to the Limitation Act, the limitation prescribed by the Multi State Cooperative Societies Act, 2002 shall apply. Paragraphs 38 and 39 of the judgment of the Supreme Court in the case of L.S. Synthetics Vs. Fairgrowth Financial Services (supra) read thus : 38. A Special Court, having regard to its nature and functions may be a court within the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputed from the date on which such member dies or ceases to be a member of the society. 14. It is not in dispute that the petitioner no. 1 continues to be member of the first respondent bank, period of limitation would thus commence from the date on which the member ceased to be member of the society. 15. In my view thus there is no substance in the plea raised by the petitioners that the claims filed by the first respondent before the arbitral tribunal on 28th June, 2006 were barred by law of limitation. 16. As far as issue of violation of principles of natural justice raised by the petitioner is concerned, though oral evidence was led by the parties before the Cooperative Court, it is not in dispute that before the learned arbitrator, both the parties filed their respective claims and pleadings. It is not in dispute that neither the petitioners nor first respondent applied for taking the evidence led by the parties before the Cooperative Court on record of the arbitral proceedings. It is also not in dispute that that the petitioner did not make any application for cross examining the witnesses of the first respondent. Both the parties made their respective submissions bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the counter claim made by the petitioner. 18. As far as the plea of the petitioner that petitioner Nos. 4 to 6 were not parties to the arbitration agreement and could not have been impleaded as party respondents to the arbitration proceedings and the entire proceedings were thus without jurisdiction is concerned, it is not in dispute that the petitioner nos. 4 to 6 were impleaded as legal heirs of one of the party who was director of Petitioner No. 1 against whom the Bank had made money claim. Reference to section 84(1) (2) and (3) would be relevant which read thus : 84. Reference of disputes.- (1) Notwithstanding anything contained in any other law for the time being in force, if any dispute[ other than a dispute regarding disciplinary action taken by a multi- State co- operative society against its paid employee or an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947 )] touching the constitution, management or business of a multi- State co- operative society arises- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past members and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Multi-State Cooperative Society for any debt or demand is due from members or their legal representatives whether such debt or demand is admitted or not. In my view the petitioner no. 4 to 6 who are claiming to be legal heirs of one of the party to the proceedings who was impleaded as Creditor by the Bank were claiming through him and were therefore, necessary parties to the said proceedings and would be also governed by section 84 of the Multi-State Cooperative Societies Act, 2002 including the arbitration agreement and were bound by the statutory arbitration under section 84. In my view, there is no substance in the plea raised by the petitioner that their impleadment as party respondent to the arbitration proceedings was without jurisdiction or was bad in view of their being no alleged agreement between the Bank and Petitioner Nos. 4 to 6. Under Section 131 of the Contract Act, on the death of the guarantor, liability exists and such liability can be fastened on the estate of the deceased guarantor, being inherited by the legal heirs and the creditor can recover the dues out of the estate of the deceased. 20. As far as reliance on the judgment of the Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The next question which arise for consideration of this court is whether properties of the legal heirs who were brought on record in the proceedings before the learned arbitrator could be attached without deciding the issue whether any of the legal heirs have inherited any properties from the deceased borrowers and/or guarantors considering the effect of section 52 of the Code of Civil Procedure, 1908. 25. Perusal of the records in Arbitration Petition No. 85 of 2010 and Arbitration Petition No. 23 of 2010 indicates that the 1st respondent bank had filed an application under section 17 of the Arbitration Act, 1996 before the learned arbitrator seeking an order of attachment in respect of the properties of the legal heirs. In the application dated 9th October, 2007 made by the bank, it was alleged that with a view to defeat the claims/rights of the bank, the said respondent were in process of disposing of and/or creating third party rights in respect of their property. The petitioner no.4 filed an affidavit opposing the said relief and contended that the properties mentioned in the application for which attachment was sought by the bank were personal properties of petitioner no.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is the only requirement for passing order of attachment under section 96 of the said Multi- State Act, 2002. It is held that there is no discretion made in empowering the arbitrator under section 96 to decide as to whether the property held by the legal heirs were self acquired, inherited or received as gift and confirmed the attachment order against the property of petitioner no.4. The learned arbitrator did not address himself on the issue as to whether the said properties in respect of which warrant of attachment was sought by the bank were personal properties of petitioner no.4 or not and were not inherited from the deceased borrowers and/or guarantors of the bank. 27. In the operative part of the award, the learned arbitrator has directed that the attachment of the said properties shall remain in force till the realization of the amount awarded. The arbitrator also held that the principle debtors as well as all the legal heirs were jointly and/or severally liable to pay the amount awarded by the arbitrator in favour of the bank with interest. Schedule of the properties to the said award discloses the properties which were claimed by the one of the legal heir as his indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore at that stage, no interference could be made with the impugned order. The arbitrator was directed to dispose of the said application as early as possible. Perusal of the record indicates that the said application filed by petitioner no.4 for vacating the adinterim order passed by the learned arbitrator has not been disposed of. 29. On perusal of the impugned award it reveals that the learned arbitrator did not decide the issue whether properties attached by interim order were whether inherited by the legal heirs from the deceased borrowers and/or guarantors. In the operative part of the award, the arbitrator has directed that the principle borrowers/guarantors as well as all the legal heirs of the original respondent no.3 were jointly and severally liable to pay amount of Rs.44,88,798.68 with interest thereon. The learned arbitrator also directed that the properties situate at Village Rajapur shall continue to stand attached till further satisfaction of the claim. 30. Section 96 of the said Multi State Act, 2002 reads thus :- 96. Attachment before award.- (1) Where the arbitrator is satisfied that a party to any reference made to him under section 84 with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties by the legal heirs of the deceased borrowers and/or guarantors were self acquired properties or were inherited by them from the borrowers and/or guarantrors or not could be decided only by executing court at the stage of execution of the decree and thus the said properties could be attached under section 96 of the said Multi State Act, 2002 which attachment would continue till such issue is decided by the executing court under the provisions of Code of Civil Procedure, 1908. The learned counsel appearing for the bank in support of this plea had relied upon the judgment in case of Ranjitsingh vs. Mt.Narmadi reported in 1931 Nagpur 173. Relevant portion of the said judgment reads as under :- As to the next question, viz., whether the plaintiff-appellant is entitled to a decree against the assets of Mt. Rukmabai in possession of the respondent, I am inclined to think that the appellant is entitled to this relief. In the plaint, para. 2, he alleged that Mt. Rukmabai was dead and that the respondent was her heir, being her daugther. The plaintiff claimed a personal decree against the respondent. In the pleadings the defendant contended that she was not in possession of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts the assets of the deceased. All that is necessary is that the legal representative must be a person on whom the estate would devolve. Section 52(1), Civil P.C., also shows that a decree may be passed against the legal representative of a deceased person without proof that the deceased left any property. The decree passed against the legal representative only declares his liability to account for the assets of the deceased debtor in his hands. Consequently it is not necessary to inquire in this suit as to whether the respondent has any assets in possession of Mt. Rukmabai or even that Mt. Rukmabai had left any assets. On this point there was disagreement between the Judges of the Allahabad High Court. In Tamiz Bano v. Nand Kishore MANU/UP/0074/1927 : AIR1927All459 , Mukerji, J., was of opinion that the question has to be determined in execution and Ashworth, J., was of opinion that it must be determined in the suit itself. It would appear however that Ashworth, J., was influenced by the rule of English law in this respect. In view of Section 52, Civil P.C., it appears to me clear, as observed by Mr. Mulla, p. 181, Edn. 9 of 1930, that the plea is confined to execution only: see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the legal heirs before the learned arbitrator. Even the documents referred to and relied upon by the legal heirs before the learned arbitrator were not disputed by the bank. The learned arbitrator has erroneously proceeded on the premise that once the bank shows that they have apprehension that the properties might be disposed of so as to deprive the bank to recover its dues in case of any award is made in their favour by the arbitrator, order of warrant of attachment was a matter of fact under section 96 of the Multi- State Act, 2002. The learned arbitrator did not address himself on the issue that when it is the case of the bank itself that such properties were of the legal heirs and in any event not having controverted those averments by filing any affidavit, whether final order of warrant of attachment could be passed by the learned arbitrator in respect of such properties which were claimed to be self acquired properties of the legal heirs. 34. In my view, on conjoint reading of Sections 35 and 36 of the Arbitration and Conciliation Act, 1996, it is clear that subject to Part I, an award shall be final and binding on the parties and persons claiming under them respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or guarantors has to be decided only in the execution proceedings and were not to be decided by the learned arbitrator. 38. The High Court in case of Ranjitsingh (supra) relied upon by the bank has held that under section 52(1) of the Code of Civil Procedure, the decree may be passed against the legal representatives of the deceased persons without proof that the deceased left any property. It is held that the decree passed against the legal representative only declares his liability to account for the assets of the deceased debtor in his hands and it is thus not necessary to enquire in that suit as to whether respondent has any assets in possession of the party against whom a decree is prayed and as to whether that party had left any assets. The High Court in the said judgment has noticed that some of other High Courts had disagreed with such view. In the facts of that case, the High Court held that the said issue could be decided by executing court. In my view, in view of the finality rendered to an award subject the provisions in Part I and such award being enforceable as a decree of court in view of section 36 of the Arbitration and Conciliation Act, 1996 on a refusal of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its payment because the deceased Shyam Behal had not left any movable or immovable property to the respondent. Therefore, the learned Trial Court dismissed the suit of appellant/Bank. The main grievance of the appellant against the impugned judgment and decree is that in view of Section 52 of the Code of Civil Procedure the legal representative of the debtor could have only raised the objection regarding the deceased having left no property in her hand in the execution proceedings and the learned Trial Court should not have considered the same in the suit. According to him the learned Trial Court and have decreed the suit after finding that the said amount was due from the said Shyam Behal and the respondent was his legal representative. Therefore, the only question that arises for determination is whether the plea that the defendant was not in possession of the assets of the deceased was available to the defendant inARBP-85-23-1160-119 the suit or not ? On a similar question in the case of Sheonarayan Harilal v. Kanhaiyalal Devidin, reported in AIR 1948 Nagpur 168, following observations were made by Justice Bosc J., as he then was:-- "...... a difference of opinion emerges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree being passed....... Indeed it would appear that a person sued for a debt as legal representative can resist the suit either on the plea that as the deceased left no assets, he can have no legal representative (since the expression has reference to some estate and does not mean merely a relation who would have been the heir if any property had been left) or again on the plea that he has duly applied all the assets available or proved to be available." Agreeing with the above referred opinions for the reasons mentioned therein, it is held that the respondent was well within her rights to raise the plea that she has not inherited any property from her son, by way of defence in a suit for recovery of a debt of her deceased-son. The plea that the respondent was not in possession of any property left by the deceased was available to the respondent in the suit itself. The impugned judgment, therefore, suffers with no legal infirmity. 40. In my view, the learned arbitrator ought to have considered section 96 of the Multi State Act, 2002 with sections 35 and 36 of the Arbitration and Conciliation Act, 1996 and section 52 of the Code of Civil Procedure, 1908 in the impugned awar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
