Aseem Anand v. Satish Kumar Sharma and Ors

ORDER

24.07.2012

¶1A detailed judgrnent has been passed today in Ex.P. No' 63 of 2008 (Rajeev Kumar Agrawal & Ors. v. Sri Chand & Ors.) along with five connected petitions including the present petition in which all the objcctions, raised by the JDs to the validity of the Award dated 19th August 2000 as rnodified on 19th October 2000, have been rejected'

¶2Accordingly, in the terms of the said judgment in Raieev Kumar Agrawal, the present petition is dismissed with costs of Rs.5,000 which will be paid by the Petitioner to the Respondents through counsel within four weeks.

¶3The Registry is directed to place on the record of this petition a certified copy of the said judgment. b ^ 1? July 24,20L2 akg

S. MURALIDHAR, J. IN THE IIIGH COURT OF DELIII AT NE\A'DIILHI Rcsclvcd on: 7'" MaY, 2012 I)ecision ou: 24tl'.h,rlY, 2012 vW.}. No. 63 of 2008 I{AJEEV KUMAR AGRAW AL' 8' ORS. ..... DCCTCC I'IOIdCTS Through: Nonc. Versus SRI CI-IAND & ORS "" Juclgmcnt l)ebtors. 'fhrough: N{r. Sanjay Jain, Senjor Advocatc with Mr. Aswath sitarallan, Mr"l'ridcep Pias ancl Ms. Plabhsahay I(aur, Advocates lor R-20, 30, 33, 36 8137. With EX.P. No. L71 of 20L1 & E'A' No' 412 of 20ll DINESI{ KIJMAR AGITAW AL. & ORS. ..... I)CCTCC I"IOICIETS 'fl.u.ough: Mr. Amit sibal with Mr'. Parvatl slran'ma, Mr. Munindra Dwivedi, Nh' Rajcsh ernd Ms. ltoohina I)ua, Advocatcs Vcrsus I(ARMYOGI BUILDTII{S pv]'. LTD. & oRs. ..... Juclgrncnt Dcbtors Through: Mr. Sanjay Jain, Senior Advocatc witlr Mr. Aswath Sitaraman, Mr-Irideep Pias aind Ms. PrabhsahaY l(aur, Advocates' with EX.P. No. 181 of 2011 & F,.A' No' 440 of 201X RAKIISII BIiAI{GAVA & ORS' .... I)eclcc Iloldcrs 'fhrough: Mr. It.K.'fcwari, Acfi'ocate' Vet'sus K^I{MYOGI BLIILDIII{S I'}VT. L'ff). & oRs' ..-.. Judgrncnt I)ebtors Ltrrough: IW'. Sanjay .Iain, Scniol Advocale with Mr. Aswath Sitaramau, Mt''Iridecp Pias ancl Ms. PrabhsahaY Kaur, Advocates' With EX.P. No.3L3 of 201L & lt.A' No' 675 of 2011 -"Pj tax.l'. 63 tl'2008, etc. Oot - -{"t" -. -rf:. *^lP - _ ^aq-; I o.f 28 "w.i, 18-BAII(LINTH BEHARI & ORS. Decrec I-Ioldcrs Through: Mr. R'I(. Tewari, Advocatc' Versus KARMYOGII]UII,DERSPVT.LTD.&oRS......JudgmentDebtors 'I'hrough: Mr. Sanjay Jain, Senior Advocate with Mr. Aswath Sitaraman, VIr''Irideep Pias and Ms. PrabhsahaY Kaut, Advocates' August 2000 passed by the learned sole Afbittator, as amendecl lulther on 19'r' october 2ooo. n.t'"d - ASEEM ANAND and O.M.P. No. 938 of 2017 Through : Mr. Ashwath S itararn;"'TH:";T; Versus SATISI{ KLMAR SFIARMA & ORS. Through: None. ..... ItesPotldcnts with O.M.P. No. 568 of 2012 CHANDRA PRAKASII GIJPTA Petitioncr Through: Mr' Parag P. Iripathi, Senior Advocatc with Mr. Shadan liarasat, Advocate' Versus AJAY KLMAR AGRAWN- & ORS. CORAM: JUSTICE S. MURALIDHAR ..... Respondents JUDGMENT

24.07.2012 Introductiotr

¶1'fhese are four execution petitions under Section 36 of the Albitration and conciliation Act 1996 ('Act') read with order XXI ltule 11 of the codc of Civil Procedure, 1908 ('CPC'). ,fhey seek execution of an Award datccl 19tr' ^f 'Mt zoflE EX.P. 63 o.f 2008, etc.

¶2oMp No. g3g of 2011 by gSri Aseem Anand is uncler section l4(2) tead with Section 15(2) of the Act seeking termination of the mandatc of the leamed Arbitrator and appointment of a substitute Arbitrator' o'M'P' No' 568 of 20I2by Shri chandla Prakash Gupta is under section 34 of the Act seeking to challenge the said Award dated 19'l' August 2000, amended on 19tr' Octobel 2000.

¶3By this common judgment the Coutt ploposes to clispose of the objections of the Judgment Debtors ('JDs') to the petitions filed by the Dectcc Ilolders (,DFIs') seeking execution of the aforementioned Award and also to dispose of the above two Petitions. Background Fucts

¶4The background to the present petitions is that the fiiencls and family of late Shri Moti Lal Agrawal comprised of the Karmyogi Group cotlsisting of Karrnyogi Builclers Private Limited ('I(BPL'), Karmyogi Sheltcrs Private Limited ('KSPL',), Karmyogi constluction Private Lirnited ('I(CPL',) and Vihram Real Estate P'ivate Limited ('VREPL')' fhe ftiencls a'd fa'rily of late Shri Moti Lal held shares in the aforefiientioned companics as well as few sister firms. A11 of them wel'e associated dircctly or indircctly with thc affairs and business activities of the I(arrnyogi Group and had an interest/stake therein as shareholders. directors, partners or investols in one or mot'e of the groups concerned'

¶5Disputes arose between the parlies in respect of conduct of the business undertaken as well as affairs of the l(armyogi Group. The parties decided to .resolve their-ciisputes tlu'ough arbitlation and entered into an agreelnent dated 10,r' Ivlarch 1gg5 referring their differences and clisputes to arbitration urder the provisions of the Arbitration Act 1940 ('1940 Act',)' 'fhe parlies executed Powers of Attorney ('POAs') in favour of seven persons' Latcr' atl amendrnent was made to the albitration agreement on 1tt October 1997 EX.P. 63 o.f 2008, etc. 3 0f28 @ wlrereby the parties ag'eed to refer the disputes to arbitration rurcler tfte tV and to thc sole albitration of Shri Sandeep Tandon'

¶6Shri vishwa Nath Agrawal and his brother shri Dinesh I(urnar Agrawal werc the two main poA holders. Their respective groups wefe known as ,VN Agrawal Group'and'DI( Agrawal Group'. Thcy welc the principal parties before the learned Arbitrator'

¶7The Award dated 19tl' August 2000 was an elaborate one runni'g i'to 113 pages. It clealt with claims of the parlies and of their respective shares in the assets of the I(arrnyogi Group which rnostly related to land and shares in pr.ofit in the various companies and concerns. It appeals that the details of the various liabilities and net assets submitted to the learned Arbitrator were either not complete or accurate..He took into account the undelstauding of the family members as to the investments and the allocation of plofits as were reasonably believed by him to have been arrived at and wcre being honoured and accepted. Annexures 1 to 29 ofthe Award gavc the allocation of shares to the different family rnetnbers in various grolrps' compernics' conceffIs and projects. It appears that even afler the disputes auosc between the various family tnembers, solne of the projects urdertaken by thc I{armyogi Group were not atlended to. The learned Arbitrator allocated all projects by way of consolidation to I(BPL believing that it would enable the gl.oup to consolidate its holdings, custorners and plot-holders bettcr' 'I-he assets of I(BPL were allocated in equal ratio to VN Agrawal and DI( Agrawal Groups. As regards the parlies who had stated clairns in thc various assets of the l(arrnyogi Group, the Arbitrator decided that each shareholder would have 50% shares in the paid-up capital of tho company with the managelnent and control givel to the two groups. The Arbitrator determined the liabilities that were to be discharged by I(BPL which included the clairns of the parties to whom no allocation could be made' "fhis was done lespecting the understanding the Group had with those partics inclucling o4 EX.P.63 of 2008, etc. .e^f i^ 4 of 28 settlement of claims of the parlies for compensation of services, claims of staff members and labour to meet the requiretnents of the project at I(ant Enclave to serve the customers and plot-holders of KBPL and to run and manage the projects of KBPL and any other liability and future expcnses required to be incuned. The learned Arbitrator determinecl that the assets of KBPL were not to be utilized for repayment/r'efund of investors other than the project at I(ant Enclave and for all past expenses that J-rad becn incurred by the parties since they had already been accounted for allocating the assets' B. It appears that after the Award was pronounced, two applications were filed by the v N Agrawal Group on 17tl' september 2000 under sections 33(1) and 33( ) of the Act before the learned Arbitrator' One application was filed by Shri Dinesh I(umar Agrawal on lBtr' September 2000 under Section 33 of the Act. 'fwo applications wcre filed by Shri Ashok I(umar Agrawal through his Attorney holdershri Dinesh I(urnar Agrawal ttnder Scction 33(1)(a) and Section 33(4) of the Act on 21't September 2000' Acccpting as justified the rectifications of cer[ain mistakes as pointed ottt by the applicants, the learned Albitrator passed a supplementary Awald on 19th octobcr. 2000 incorporating these changes. The learned Arbitrator in the said supplernentary Award inter alia observed as uudet: ..(e) In the caption .the award and its operation', Clause N, pug" 78, para 2, tire direction documents and papers conveyin; ,h. ownership of assets to the allottees shall sta'd replaced Ind substituted by ,docurnents and papers conveying theownership/management&incomeofassetstotlrc aliottees'. The Arbitration Award dated 19.8'2000 shall be treated as amended to the above extent'" Earlier chullenges to the Award

¶9Thele wele a series of challenges thereafter to the said Award' First was oMP No.276 0f 2000 filed in this courl under section 34 0f thc Act by la Petitioners therein. According to the DI{s, reply was filed to thc said petition bv Shri Vishwa Nath Agrawal supporling most of the objcctions to the EX.P. 63 of 2008, etc. oy'o*t 5 o.f 28 Award except to the extent that some of the objections were directed against him. The DHs fur1her stated that during the pendency of oMP No'276 of 2000, it transpired that signatures of four of the Petitioners in that petition were forged. The siglatures were sent to the Central Folcnsic Scicnces Laboratory which confirmed the forgery. During pendency of the said OMP' the remaining ten Petitionels expressed their desire to withdraw their objections.

¶10On 5tl' Novernber 2001, Sarvashri Sri Chand, Vinod I(umar Aglawal' Nanrlurnal Agrawal, Nirav Nimesh Agrawal and Ramesh Chand Agrawal' all beionging to the VN Agrawal Group, filed IA No'10390 of 2001 and Shri satish Kumar. srrarma fired rA No.r0r07 of 2001 seeki'g their transposition as Petitioners in oMP No.276 of 2000 claiming that thcy had similar' objections as raised in the said OMP to the Award' By an orclcl clated 6tr' Novembe r 2001 thc said applications wele dismissed by the learned single .Judge, inter alia, onthe ground that the objections to the Award had to be filed within the statutory period prescribed by law' Once the main OMP itself stood dismissed as withdrawn, the applicants could not be perrnitted to be transposed as petitioners. In the said order, the Court rccorded the . state*e'l of smt. Sudha Agrawal who was the petitioner No.3 thc'cin and was appearing also on behalf of Petitionel Nos.4, 5 and 6 thercin, who were rninors, as their guatdian, that she had neither signed the petition nor the objections filed to the Award and that she was no longer .interested in pursuing the matter keeping the overall interest of the family as well as the welfare of the minors. The other Petitioners i.e. Petitioner Nos'I,2 and 7 Lo 14 inforrned the Court that they too wished to withdraw the petition and the IAs. Accordingly, the petition was dismissed and the applications were also dismissed.

¶11Aggrieved by thc aforementione<I order dated 6tr'Novcuber 2001' the Applicants therein who sought transposition as Petitigp€rs hlcd IrAO(OS) o' {,t"- ^rf "rtlt*"s of,' ^o:.';1,:=l';$/ u.s:\*;l"' r.\z;qT:ty EX.P. 63 of 2008, etc. r"\o 6 of28 2\ /u) No.537 of 2001 which came to be disrnissed by the Division Bcnch of tws/ Cour.t on 15'r'May 2OO7. Thereafter the same parties again filcd l{cview Petition No.300 of 2007 where one of the main grounds raiscd was that the law of lirnitation was not applicable to a case of transposition' In thc said review petition, the learned senior counsel for the Itesponcieut Nos' 15' 21' 24, 27 and 28 (a11 belonging to the VN Agrawal Group) supported the contentions of the applicants. It was observed by the Division Beuch that the parties seeking transposition "could have themselves filed objections if they were so aggrievecl, but they chose not to file any such objcctions ernd accepted the Award." It was fuidrer observed that "the opportunity of filing objections under section 34 havtngnot been exelcised within the period of limitation, the said right cannot be subsequently exercised'" It was ' ultimately observed that "right of each party to the arbitration proceeding to hle objections is a separate and distinct right which lapses when period prescribed under Section 34 of the Act expires' In our considcred opinion what cannot be done directly, cannot be allowed to be done i'directly'" Accor-dingly, by an order dated 6th Novemb er 2007 the review petition was dismisscd.

¶12Against the order dated 15tr' May 2007 disrnissing IrAo(os) No'537 of 2OOI a'd the or.der dated 6tl' November 2007 clisrnissing I{eview Petition No.300 of 2007, the applicants seeking transposition filed Special Leave Petitiol ('SLP') (C) No.2747 of 2008 in the Suprerne Courl' Notice was dir.ectcd to be issued. in the petition on 25tl' February 2008. It is stated that the said SLP is pending but no stay has been granted of the executiou of the Award.

¶13On 2"d July 2007, nearly seven years after the passing of thc Award' Shri vishwa Nath Agrawal and others belonging to his group filed oMP No'478 of 20Q1 under Section 34 of the Act challe'ging the Award datcd l9'r' August 2000. 'fhere were as lnany as 51 grounds rais9flqft the said petition' EX.P. 63 of 2008, etc. es dr-' +X 'st By a judgrnent dated TtL Septembet 2007, the learned Single Judge of this Court dismissed the said petition on the ground of lirnitation' As an explanation for the delay in preferring OMP No'478 of 2007 the said Petitioners had hled IA No.98 lg-23 of 2001 in which they had prayed for exclusion of thc time spent by them in pursuing the earlier oMP No'276 of 2000 in which the Petitionels in oMP No.47B of 2007 were Itespondent Nos.3, 11, 1 6, lg and20.It was notecl in the said order that accorcling to the petitioners thereid, the arbitral Award was published on lgtr' August 2000 and thereafler on their applications under Sections 33(1) and 33(4) of the Act, a supplementary Award was published on 19tt' Octobcr 2000' The petitioner.s therein ha<l not fiied their objections within the statutory pe'iod pr-escribed under Section 34(3) of the Act. In theil reply to OMP No'276 of 2000 filcd on 25,r, April 200r they had admitted that thcir objcctio's were beyond the prescribed time. It was held that the Petitionefs therein were precludecl from fiting objections against the arbitral Award nearly after seven years after tire passing of the Award. Accordingly, the petitions were dismissed and subsecluently, oMP No.478 of 2007 was also dismissed'

¶14Aggrieved by the aforementioned dismissal of oMl'} No'478 of 2007 ' these Petitioners filed FAO(OS) No.473 of 2007 before the Division Beuch' Tlre said appeal was dismissed on 8tl' Septembe t 2011 ' Thereaftcr' those Petitioners filed SLP (civil) No.1551 of 2012 which was dismissed by the Supreme Court on 21ttFebrualy 2012'

¶15The resultant position is that on two occasions attempts wclc tnade to challengc the impugned Awarcl undel section 34 ofthe Act' 'fhe fir'st round resulted in the original Petitioners withdrawing their objections and the order dismissing the petition as withdrawn and rejecting the applications filed by the Respondents to that petition seehing to transpose themselves as petitioners was also affirmed by the Division Bench' Thc SLP against the said order of the Division Bench is pendine cgUOteration in thc Supreme EX.P.63 of2008, etc- ^€" I of28 Cour1. However, the second round which witnessed Shri Vishwa Nalh Agrawal hinseif and some others belonging to his group filing OMP No'478 of 2007 facing rejection of their objections to the Award by the lcarned Single Judge on 7tr' September 2007 a'd thereafter by a Division Bench on 8'r' September 2011. The said orders attained finality with the Supreme Court dismissing the Special Leave Petition on 21't February 2012. With these two attempts of challenging the irnpugned Award having failcd and with no stay being granted by the Supreme Court, the Award is cn'fiorceable and executable. The present petitions

¶16Execution Petition No.63 of 2008 was filed on l5'r' March 2008 by Mr' I{ajeev I(urnar Agrawai and four others' On 10th April 2008, another execution petition being.Execution Petition No.3 of 2008 was filed by the same parties i.e. Rajeev Kumar Agrawal and four others in the Distlict Court of Faridabacl. In the said execution petition, the lealncd Additional District Judge directed the learned Arbitlator to deposit the original signed Award in the Courl by an order dated 6tr'April 2009. On 3'd August 2009, thc lcarncd Ar-bitrator entered appearance through counsel in the said Court and on 24't' septembe r 2009 the learned Arbitrator deposited in the court o1' the ' Additional f)istrict Judge, Faridabad the original Award. Subscclucntly, the DI{s in the Execution Petition No.3 of 2008 filed an application for adjournrnent of the execution petition sine clie. on 5tl'February 2010, the District Court at Faridabad allowed the said application and lJxccution petition No.3 of 2008 was adjoumed sine die with liberty to thc DI-Is to get it revived. Thereafter, the three Execution Petitions, being Ilxecutiol Pctitiol Nos. I7I, 181 and 313 of 2OIl have been filed by Shri D' K' Agrawal and others, Shri l{akesh Bhar gava and others and Shri Baikunth Behari and othels, respectivelY.

¶17In these execution Petitions, EX.P. 63 oJ'2008' etc. ,'a\ /Yll9 objectiols which are dealt with hereinafter' Even while thc execution petitions were pending, Shri Aseem Anancl, son of shri vishwa Nath Agrawal who had executed a POA in favour of his father, Frled OMP No' 938 of zoI]under section l\(z)read with section l5(2) of the Act with the prayer that the mandate of the learned Arbitrator, shli sandeep. ''fandon' should be terminated and that a substitute Arbitrator should be appointed in his place. The said petition was filed on 17tl' Decembcr 2011 whcreas shri Sandeep Tandon expired on 17tl' March 2010. The arguments in the said petition were heard along with all the objections raised by the JDs in the execution petition. LB. After orders were reserved in the execution pctition and in the aforementioned oMP, Shri chandra Prakash Gupta on 30tr' June 2012 filed oMPNo.56SofZl]2under.Section34oftlreAct.Inthesaidpetitiorr,Shri Chandra Plakash Gupta admitted that he had given a POA in lavour of Shri D.K. Agrawal. I-Ie stated that although he was re-assured by D'I(' Agrawal that his interests would be taken care of, the manncl in which thc cxecutiou petitions were prosecuted, tnade it'clear that Shri D'K' Agrawal was "only concerned with his own interest and those of his wife and children, which he had aiready secured in the Award and was only concerned in sideli'ing the Petitioner, while at the same time giving the Petitioner fake assul'ances'" lg. In all the objections to the execution petitions as well as in oMP Nos' 938 of 2OIl and 568 of 2012 the principal point raised is that none of the parties has been communicated a certified iopy of the Awa'd dated 19tr' August 2000 and that in terms of the decision of the Supreme Court rn Stste of Maharctshtra v. Ark Builders Private Limitecl' (2011) 4 SCC 616 (hereinafter 'Arlc Builclers caser), the period of limitation for filing objections to the Award doqs not arise. Elaborate argurnents have been advanced by the parties in this behalf' . "9$ ado '.) EX.P. 6j o.f 2008, etc-l0 o.f 28 The rlecision in the Ark Builders case

20.I In order to appreciate the above principal objection, this Coutt procecds to discuss the decision in Ark Buitcrers case in some detail. "fhe cluestion that arose in the Ark Buitelers cflse for consideration is sct out in pala I of the said decision and reads as under': ..Whetlrertheperiodoflimitationformakinganapplication under section 34 0fthe Arbitration and conciliation Act,1996 (hereinafter "the Act") for setting aside an atbitral awald is to be reckoned fi'om the date u "opy of the award is received by theobjectorbyanymeansandflomanySource,oritwould statl runnittg fto* the date a singed copy of the award is delivered to him by the arbitrator'"

20.2 Thc facts were that on 20tt' March 2003 the A'bitrator in that case gave a signed copy of the Award to Ark Builders Private Limited, Respondent in that case, ('A1k Builders') in whose favour the Award was made' I-Iowever' no copy of the Award was given to the State of Maharashtra, which was the appellant in that case before the Supreme Court or to the other partics in the proceedings since both the State of Maharashtra and the other parties had failed to pay the cost of arbitration. A[k Builders submitted a copy of the Awar.d in the office of the Executive Engineer of the State of Maharashtra on 29tl' March 2003 claiming payment in terms of the Awarcl' On 16tr' April 2003, the Ilxecutive Engineer put up a proposal for challenging the Award before his suPerior off,tcer. ZO.3 Mea'while on l5tL January 2014,the Executive Engineer informed the Ark Builders that the State of Maharashtra had decided to challenge the Awar.d before the appropriate forum. A decision in that behalf was takcn on 16il' December 2003 but no application to challenge the Award was made since the copy of the Award had not been received fiorn the Arbitrator' on 17tr' Janu ary 2004, a messenger was sent to the learned Arbitrator with a letter seeking a copy of the Award. The Albitrator tnade an endorsement on I the letter and sent along with it a xerox copy of thg'Sald Awar<l ccrtified by '((t'!€ *9t'a/ ./ ^od r.1o.-,"$;l"tt" *'cr"-- EX.P. 63 of 2008' etc. ,.,$":Sl;t.. ll of28 @ the the the Arbitrator as a true copy. This xerox copy of the Award certified by Arbitrator was received on 19tl'January 2004 and on 28tr'Januu"y 2004 State of Maharashtra filed its petition under Section 34 of the Act'

20.4 The question that arose befole the Principal District Judgc, I''atur, was whether the petition under Section 34 of the Act was barred by lirnitation' The said objection raised by Ark Builders was upheld by thc Principal Distr.ict Judge and the State of Maharashtra then prefcrrcd an appcal before the Bornbay {igh court. A contention before the said l-Iigh court was that since thc Arbitrator had not sent a copy of the Award, as envisaged under section 31(5) of the Act, the period of limitation had not begun to run' Reliance was placed on the decision of the Supreme court in (Jniotr oJ'Indiu v. Tecco Trichy Engineers & contrctctors (2005) 4 SCC 239 (hereinafter ',Tecco Triclty Engineers case'). The l{igh courl held that under Scction 3i(5) of the Act itwas notnecessary for copy of the arbitral recordto bc sent by the lcarned Albitrator to the pafiy concelned but only to bc handed over to the appropriate parlies. It was held that since the Executive IJngineer had admittedly received the copy of the Award in April 2003, the Appellants had to blame themselves for not acting till January 2004 to challenge the Award' It was held that there was sufficient compliance with Section 31(5) of the Act since the appellant had received the copy of the Award in April 2003 ' Ihe state of Maharashtla then appealed to the supreme coutl

20.5 After discussing the earlier decision in the Tecco Triclry Ettgineers case,the Supreme Court had obserryed as under: ,,15. 'fhe highlighted porlion of the judgment extracted above, Ieaves ,ro -rooil fo; doubt that the period of limitation prescribed under Section 34(3) of the-Act would start running only fiom the date a signed copy of the award is delivcred tolrecbived by the party making the application for setting it aside under Section3{(l) of the Act. The legal positiol on the . issue may be stated thus. If the law prescribes that a copy of the order/award is to be cornmunicated, delivered, dispatc$ed, forwar-ded, rendered or sent to the parties concelped tn a EX.P. 63 of 2008, etc. -.af"" I2 of 28 parlicular way and in case the law also sets a period of iimitution for challenging the order lawatd in question by thc aggrieved PartY, th; In" period of limitation can only colnmencefi.omthedateonwlrichtheorder/awardwas received by the party concerned in the manner prescribcd by the law."

20.6 "fher.eafter, the supreme courl discussed the decision of Patna Fligh Court in Slteo Sltankar Sahay (Dr.) v. Commr' 1965 BLJR 78 and held in paras 17, 18 and 19 as under: ,"|T.Inlightofthediscussionsmadeabovewefindtlrc impugned order of the Bombay High courl unsustainablc' The Fligh court was clearly in error not correctly following the .decisionofthisCouttinTecco.friclryEngineers&' Contractorsandintakingacontraryview.TheFliglrCourt overlooked that what Section 31(5) contetnplates is not mcrely thedeliveryofanykindofacopyofthealvardbutacopyof the award thut i, duly signed bv the members,of thc Arbitral fiibunal. ls.Inthefactsofthecasetlreappellantswouldappeartobc deriving undue advantage due to the omission of the arbitrator togivetlremasignedcopyoftlrelwardcorrpledwith.tlrc supply of a copy;f the award to them by the respondent claimant but thai would not change the legal position and it wouldbewrongtotailortlrelawaccordingtothcfactsofa parlicular case.

¶19In the light of the discussion made above this appeal must succeed. wJ, u."ordingly, set aside the j'dgments and orders passedbyth"BombayHighCourtandthePrincipalDistrict Judge, Latur. The application made by the appellants under section 34 ofthe Act is restored before the Principal District Judge,Lalur,whoslrallnowproceedtoheartheparlicson rnerits and pass an order on the application in accordance with law. Sinc" ih" matter is quite old, it is hoped and expected that the Principal District Judge will dispose this matter preferably within 6 months from the date of receipt of this order'"

20.7 Theratio of the above decision is that under scction 31(5) the mere delivery of "any kincl of a copy of the Award" is not sufficient but the said ]]]il;olii", rhe "delivery of a copy of the a*urj{lrnd ft#tv,'ig'ed bv ^ *r tt -.ipd^ 13 ttf 2E o"s'l ;:lT:-$.iiJP ;Eff.".'fFP s*'t.e).."-:Uid' EX.P. 63 o.f 2008, etc. ""*.tt*tt .o \--/ the members of the Afbitral Tribunal." Further, it was held that the pcriod of limitation prescribed under Section 34(3) of the Act "would start rurning only fiom the date a signed copy of the Award is delivered to/received by the pafly making the application for setting it aside undcr section 34(1) of thc Act.,, Therefore, the two factors highlighted are the Award having to be signed by the learned Arbitratol and a cerlified copy thercof having to be delivered to the parties to the albitral proceedings who propose to make an appiication to challenge it under Section 34(I) of the Act' WasasigneclcopyoftheAwsrclcleliveredtothepnrties? 2l.Itwas l'epeatedly urged before this Court by the JDs'that there was'.in. fact, no oliginal signed copy of the Award is. available as no patly had seen such copy. Secondly it was submitted that, in any evetrt, a signed copy of the Award was not delivered to each of the parties as was mandatoly undcr Section 31(5) of the Act, as explained by the Supreme Court rn Lhe Arlc Builclers case.It is fuither submitted that a xerox copy of the signed Award cannot be equated with a signed copy' of the Award' In other words' each copy of the Award which is to be delivered to the parlies has to bear the original signature of the Arbitrator and signing one Award and rnaking several photocopies of it does not fulfil the requirement of section 31 (5) of the Act. Delivelilg a photocopy of the Award is 1ot compliance' A further aspect of this argurnent is that since without the delivcry of a signect copy of the Award the arbitral proceedings cannot be said to have terminated under Section 32 ofthe Act, the Award does not becotne enforceable as such' 'Ihe limitation for challenging the Award under Section 34 cannot begin to run till the ingredients of section 31 are not satisfied-Further, since the learned Ar-bitrator has expired with the arbitration proceedings not having concluded' another arbitrator requiles to be appointed by this court' It is subrnittcd that there cannot be any estoppel against law and the law has only now becn explained by the Supreme coutl in the Ark Builtters case"I'he fact of the earlier. challenge to the impugned Award having t"tt".Ur;g to thc Supreme ., !o - Ia of2t EX.P.63 of 2008, etc' r\? -i

6.;".fij]ca . .r.l i ft .'.'.rc)l a Court cannot come in the way of the JDs raisilg an objection' to the validity of the irnpugned Award on the above ground. It is contended that since the arbitral proceedings have not been concluded, and thc Award passed cannot be said to be final and binding, the execution petitions arc Lhemselves prernature.

¶22The DHs point out that a cerlified copy of the Award as filed in the Execution Petition No.3 of 2008 in the Court of the District Judge at Faridabad has beel placed on recold in the plesent proceedings' 'fo counter this, it is contended by the JDs that "while filing of a certified copy fi'om another court proceeding may be sufficient for the purpose of igniting aur execution petitiol but the same is no substitute or compliance of the first requirement of the Arbitrator supplying a signed copy of the awzud to each stakelrold er I pafcy to the Arbitration."

¶23'lhere is a basic misconception in the above subrnissions on bchalf of the JDs as well as the petitioner in OMP No. 93 8 of 201 1 . The fact of thc matter is that the lealned Arbitrator signed the Award on 19'r' August 2000 and passed and signed the suppiementary Award on 19tl' October 2000. The learned" Arbitrator sent certified copies of the Awards to the I']OAs of all the parlies. The last line of the Award dated 19tr'August 2000, in fact, s{ates that ,,a cerlified copy of the Award is being sent to the parlies thror-rgh thcir power of Attorneys holders/Allottees." The learned Arbitrator signed each of the Annexures to thc Award as well. He also appears to havc signed the supplernentary Award dated 19tr' October 2000-

¶24In the application filed by Slui Vishwa Nath Agrawal under Section 33(i) af the Act, he admitted to receivinga copy of the Award dated 19tr' August 2000. In his reply to OMP No.276 of 2000 he stated in para 29 that "the answering respondent after receiving the copy of the Award on 17'r' Septernber 2000 moved an application before the lcarned Arbitrator for EX.P. 63 of 2008, etc-Oottitt" I5 of28 . gtl correction of the Award under Section 33(1) of the Act'" FIe further stated in para 31 that the learned A'bitrator "was pleased to pass an order clated 19th October 2000 and sent.copy of the same to the answering respondent'" In his own objection Petition No.478 af 2007, ShIi vishwa Nath Agrawal stated in para 1 that he was'annexing a true copy of the Award datecl 19tr'August 2000. Furlher, in pafa 5 of the same petition, he stated that he was enclosing a true copy of the order dated 19tl' October 2000 of the lea'ned Arbitrator' dhii Ar""m Anand, son of Shli Vishwa Nath Aglawal and the Petitioner in oMP No. 938 of 2011 had filed a reply in F-aridabad court that the learned Arbitrator had., in fact, passed a final'Award. The POA5 werc valid till the Award was finally implemented. The attempt made by Shri Ascem Anand to wriggle out of his POA in favour of his father cannot be countcnanced' Likewise, the attempt by Shri Chandra Parkash Gupta to wriggle out of the POA granted to shri Dinesh I(umar Agrawal also cannot be countenanced' fhis appears to be a desperate attempt to justifli'the filing of fiesh petitions under Section 34 of the Act several yeals after the passing of the original Awald.

¶25It is very difficult for this Court to accept at this stage that none of the parlies were given a cerlified copy of the Award. The parties gavc POAs in favour of Shri Vishwa Nath Agrawal and Shri Dinesh I(umar Agrawal' Thc receipt by PoA holders of the signed copy of the Award fiorn the learned Arbitrator satisfies the requirement of section 31(5) of the Act' The decision \ in Ark Buil'clers cose rs distinguishable on facts. Ihe said judgment does not discuss the situation where a POA of the party receives a signed copy of the Award and yet the person who has executed such POA later turns around and claims a right to himself or herself to receive a signed copy of the Award' Entcrlaining such a plea several years aftel the passing of the Award would makc a mockery of the period of limitation prescribed under Section 3a(3) of the Act. In the present case, in neither round of litigation challcnging the Award dated 19tl' August 2000 and the supplementary Award dated 19tn "rr^:"le Ki.,s$" o"*tt EX.P. 63 of 2008, etc. I6 of 28 \{ october 2000, was such objection raised by the JDs in the execution petitions ol the Petitioners in the OMPs' . 26: Applications were filed seeking summoning of the record in llxecution petition No.3 of 2008 pending in the Court of the District Judge, Iraridabad' With a certified copy of the original Award having been filed and placed in t these proceedings, this Court is not inclined tb allow the abovc prayer as tt w.ould unnecessarily delay the matter further. Therc is nothing ploduced to denonstrate that the copy of the Award filed in this Court is any different fi-om the original Award filed in Exesution Petition No.3 of 2008 in the District Court in F'aridabad. Thele can be several execution petitions arising out of an arbitration Awa1d. As long as an oliginal signed Award is filed in the Courl in one of those proceedings and a certified copy of it is produced in other Courls, it is sufficient compliance with the requiretnent of Section ''7 31(5) read with Section 34 ofthe Act. There is also merit in the contention of the DI-Is that the question of delivery of the signed original Award to the patcy is relevant only for the purposes of limitation tbr filing of the objections under Section 34 ofthe Act and nothing cotncs in thc way of execution of the Award as long as the executing Court is satisfied that the original Award is, in fact, avarlable'

¶21The coltention of the JDs that there was no signed origilal Award or that thc signed copy of the Award was ngt deliveled to any of them is factually incorrect and is hereby rejected. Wss the,A,ward properly stuntped and registered?

¶28'fhe next objection concelns the starnping of the Award. It is subrnitted that in terms of Article 12(b) read with hrr:iclc 46 of Schedule I of the Bombay Stamp Act, 1958 ('Bornbay Stamp Act') a stamp duty of I{s' 10 per value of Rs. 500 had to be paid. It is submitted that the assets of the I(armyogi Group which are to be distributed in tenns of the Award are o&7 EX.P. 63 qf 2008, etc. (.o' ^, 17 of 28 tlE o 3L spread across several cities including Delhi, Agra, Gurgaol and Gautam Budh Nagar in the States of Delhi, Uttar Pradesh aud liaryana' It is subrnittcd that the valuation of the total assets lulls into hundreds of crores which requiles appropriate starnping of the Award' It is submitted by the JDs that some of the assets which have been all0tted in terms of the Award to various pafties are incapable of valuation' It is contended that under Section 2(m) of the Bornbay Starnp Act,'an instrutnent of partition includes an instrument whereby co-owners of any ploperty by thetnselves reach an agreement as to parlition of those proper-ties or agree to partitiou on ceflain terms and conditions or agree to divide the propefly at a later date' It is submitted that in the present case, the partition of the property was by tlutual consent of all co-owners without any external intervention. It is subrnitted that it is not necessaly for the partition to take place between co-owners'

¶29Onthe other hand, it is contended by the DI-Is that Article 46 of Schedule I to the Bombay Stamp Act is not applicable as it is not an Award dirccting partition within the meaning of Article 12 of Schedule I read with Section 2(m) of tire Bombay Stamp Act. It is subrnitted that some of the parties arb not even shareholders of the four companies. 'fhe distribution of assets among shareholders of the cornpany does not amount to parlition as the shar-eholders are not the owners of the assets of the company. I{eliance is placed on the decision of the Supreme Court in Buchu tr' Guzdar v' Commissioner of Inconte Tax, Bombay (1955) I SCR 876' It is contended that the Award only directs Board of Directors of a company to execute necessary transfer documents and this does not arnount to partition as such' Reference is made to the decision in Anurug Matilc v' Amit Mulilc 2006

(126) DLT 114.

¶30In order to appreciate the above contention, reference may be inade to relevant ptovisions of the Bornbay Stamp Act. Article 46 of Schedule I provides for payment of Stamp duty on an "insttutlent of paftition'" Section '-J o"Q' EX.I.. 63 0f 2008, etc. \.rt i 18 0f 28 ^e' --tft^{G --=-.€#$$--_+::1 1r 2(m) of the Bombay Stamp Act reads as under:-..Instrument of partition" means any instrutnent whereby co-own.ersofanypropertydivideoragreetodividesuchproperty in severaltY and includes:-

i) in final order for effecting a partition passed by al1y levenLre authoritY or any Civil Coutt,

ii)anawardbyanar.bitratordirectingaparlition,and

iii) when any partition is effected without executing any such insfi.ument , -"ny instrume't or instrumelts sigled by the co-owners and recording, whether by way of declaration of such parlition or otherwise, the terms of such partitiol amongst the co-owners."

¶31Arlict e 12 ofschedule I to the Bombay stamp Act reads as under:- Award, that is to SaY, any decision in writing bY an arbitrator or umPire, on a reference made otherwise than by an order of the Courl in the course of a suit, being an award made as a result of a written agreement to submit, present or future differences to Arbitration but not being an award directing a Partition - The same dutY as Bond (Article 13), subject to a maximnm of (one hundred rupees). b) in any other case. One I{undred ruPees. the leamed I9 of 28 -) on the amount of value of the propertY to which the award relates as set forth in the award; g' '?4 Arbitratol held as under:- ,,2. 'lhc award shall come into effect and become operational immediately fi-om the date of rny signing the same as herein under upp#irrg and by virtue of the same the allottees stand vested ,"ith all ownership and other rights in the assets allocated to them. Documents and papcrs colveyilg the ownership/management of assets to the allottees shall bc pr.epared and elxecuted by the board of directors of the iespective companies in ihe manner and to the extent of allocatiols made by me under the auspiccs of this award immediately and any non compliance in this regard shall amount to a contempt of the award. Notwithstanding, thc execution of such documents and papers in respect of the assets and projects allotted to them, this award shall entitle and convey to ihe"allottees all ownership rights, titles and interests in the assets and projects allocated to them with effect fiom the date of mY signing the same. aJ.

¶4All costs, expenses, registratiol charges involved o1 likely to be incurred in respect of tralsfer of assets allocated by me shall be paid and bbrne by the tespective alloltees of sr"rch asscts."

¶33'fhe above portion was fuilher amended by the supplernentary Award dated 19!r' October 2000 by inserting the following additional clause:- "8. The i'vestors and the public atlarge had made invesfilents i1the projects run and undeftaken by the 'Karmyogi Group' by reposing u lot of faith in the family members, parlicularly.Mt" Vishwanath Aglawal and Mr. Dinesh l(umar Agrawal' Such investors, plot holders, customers and the likes are dependelt upon the resolution of disputes of the group for their' entitlements of money and money's woflh, the knowledge of which is mainly confided and limited to the family members, parlicularly M1 Vishwanath Agrawal and Mr. Dinesh I(ut1ar hgrawal. i' addition to that, the group may be callcd upon to discharge goveffiment and statutory dues, meet various rcgulatory r=quirements after passing of the Arbitration Award dated 19.08.t000. After due and thorough consideration of . such peculiar facts and circumstances, the interest of the investors, customers and the public at large, that, the Arbitration Award dated 19.08.2000 has been passed by me' EX.P. 63 of2008, etc. 20 o.f 28 o g. The Arbitration Award dated tq.os.zooo is final and binding on the parties unless and until there is a successful challerige to the same. The process of arbitration is not to be subjectJd to misuse by repeating and reiterating_the disputes and differences whictr have been considered and adjudicated upon in the manner discussed and detailed in the Arbitration Award dated 1 9.08.2000.

¶10The order passed in paras 4 (ato e) supra, shall be an order under Section ZZ(Z) of the Act and form parl of the Arbitration Award dated 19.08.2000. No order under Section 33 (5) is beingpassedorrtheapplicationsnradebeforemefortlre reasons and discussions stated above'"

¶34Consequently, it is not that the Award itself brings about the division of the assets but it requires steps to be taken to convey the owuership' management and income of the assets to the allottees. It is at that stage that necessaly stamp duty for those transactions wouJd be required to bc paid' There is rnerit in the contention that it is the four companies which would be the owners of the assets. It is not as if shareholders of the company own the assets of the company. There cannot possibly be a decd of partition concernittg ailocatiol of assets belolging to the companies' Such a concept is alien to the notion of parlition as such. It is difficult to accept the conrention of the JDs that it is Articre 46 and not A"r'ticle lz of schedule I to the Bornbay Stamp Act that would get attracted in the cit'curnstances' In other words, the contention that within the meaning of section 2(m) of the Bombay Stamp Act, the Award in question tantatnounts to an 'instrument of partition' cannot be accepted. The question of registration and payment of registration charges also does not arise at this stage' As and when the actual transfel takes place, the respective allottees will have to pay registration charges in accordance with law' The MOU of Decenfier 2002

¶35It is next contended by the JDs that by a Memorandum of Uldelstanding (,MOU') dated 2l't December 2002 executed between VN;$fawal Group EX.P. 63 of 2008, etc. and DK Agrawal GrouP, the companies i.e. KBPL, KSPL, \4b shares of the family members in the fbur JD KCPL and VREPL have been transfcrrcd in the name of I{arrnyogi Promoters Private Limitcd ('I(PPL',), a spccial Purpose Vehicle ('SPV') created only for the said purpose with the conscnt of both Shri Vishwa Nath Agrawal and Shri Dinesh I(umar Agrawal' It is stated that as on date, I(PPL holds maximutn number of shales in each of the four JD companies and this has been done under the advice of the Chartered Accountants. It is further stated that in tenns of Clause 1(a) of the MOU' the cornmunity centre has been jointly sold by shri vishwa Nath Agrawal and shri Dinesh Kumar Agrawal and receipts thereof have beeu utilizcd for settlement of loans of cefiain parties. Likewise, it is stated that several clauses of the Mou have been acted upon by the parties' It is further stated that a tripartite agreement between KBPL, Techman Buildwell Pvt' Ltd' and Neelpadam Builders Pvt. Ltd. had been entered into fo1 rcsolving the problems of over 700 custofilers of I(alnyogi Nagar" Reference is made to an agreernent to sell of senior secondary school in I(ant Enclave in tertns of Clause 15 of the MOU. It is contended that Shri Dinesh l(umar Agrawal could notlbe pennitted to back out fiom the MOU' Accordingly, since Shri V.N. Agrawal had not agreed to the execution of the Award, Shli Dinesh I(urnar-Agrawal atternpted to.resolve the disputes ilue to the pressule of the customers by entering into the MoU dated 21't December 2002-I:lowever, it is stated that the said Mou could not be implernented as thc consent of other constituent members of the DI( Agrawal Group and VN Agrawal Group could not be obtained and, therefore, the MOU was abandoned' It is stated that another-MolJ was signed/agreed in 2004 between shri Dinesh l(umar Agrawal and Shri Vishwa Nath Agrawal and the property shaling ratio in lespect of the said four projects was 45: 45 and 100% was reserved for being ailocated in future. According to the DI( Agrawal Group, thc copy of the MOU is not traceable but the subsequent change in the shareholding of KPPL would testify to such an MOU having been entered into. It is fur1her stated that aftel the2004MOU, the shareholding oflUdfrePl changed to 50: {cl'} EX.p. 63 of 2008, etc. ^{ -z}Ft { 22 ttf 28 . \o- '/rlb? -r5,/ 't\.-tfj-J r,w ."3W o \41 50 both in numbel as well as value and the VN Agrawal Gloup and the DI{ Agrawal Group purportedly transferred their shareholding in the four companies to I3PL. In the written submissions filed, the DI{s have in two tabular-colunns shown the shareholding in KPPL in April 2003 as well as on 8,r' Decern ber 2004. It is assefted that except to the exle'l of transfer of shareholding in the four JD compauies as set out in the tabulated chart' "no part of either he 2002MOU or the 2004 MOU has been acted Lrpon and has been abandoned by both the parlies inter alia because of not receiving the consent of the other parlies to the Arbitration Agreemenl'" Thc DI-Is have also set out various circurnstances which would show that the 2002 MOU had been abandoned by the parties. A reference is also made to the order dated 10,r' December 2O0I passed by the Division Bench' in FAO(OS) No.537 of 2001 directing status quo to be maintained in respect of the pr-operties which we1e the subject matter of the Award dated 19tr' August 2000. 'fhe above order was fui1her modified on 23'd May 2005 by directing that Respondent Nos.72 to 75 could do their business in nortnal course' however, proper accounts were to be maintained in respect of the sale/purchase of the land in question'

¶36It rnust be mentioned at the outset that there is rnerit in the contention that the transfer of shares pursuant to the MOU of 2002 has not helped to resolve the issues between the parties. If it is true that the Mou has, in fact' been abandoned or, in any event, not givel effect to completely' then it is necessafy to restore the status qtto ante the date of passing of th9 Award dated 19tl' August 2000. It is stated that all the parties to whom the companies have been transferrea i.e. the Djrectors and shareholders of ISPL are parties to the Award. KPPL is comprised of the parties to the arbitration or their representatives. In the circumstances, it is necessary that the transfer of all shares of'the four JD companies to ISPL be declarccl illegal and the Award clated lg,h August 2000 be read with the orders of the Divisio'Bench dated l0tL December 200L If, however, even after the presetrt order' the o"d EX.P.63 of 2008, erc. a"'P ^i 23 of 28 ^t^oo Y2/ parlies are able to get the shareholders of the four JD companies to agt'ee to such transfer then possibly there can be a rectification of such tt'ansfer of their shareholding to KPPL. Therefore, the transfer of shares of the foul JD companies to I(PPL is declared as invalid and the status qtto antethe trausfe| of shares to I(PPL is restored. Correspondilg changes will be tnade in the register of shareholders of the four JD companies as well as of I(PPL' In any event, the remaining shareholders of the four JD companies are directed to transfer their shares in the manner indicated in the Award dated 19tl' August 2000. School in Kant Enclave

¶37As regards the agreement to se|l concerning the school in I(ant lSnclave, it is stated in the written submissions filed by the DHs that the utilization of the part of the sale considelation for the refund of certain atnounls to creditors was not pursuant to the MOU as such ancl that the DI( Agrawal Group is r-eady to refund the amount used by the vN Agrawal Group for discharge of genuine tiabilities on production of proper documents together with interest. It is, accordingly, directed that within foul weeks VN Agrawal Group wili file an affidavit indicating what was the exact atnount utilized of the sale consideration in respect of the Senior Secondary School at Kant Enclave to discharge the liability so that appropriate directions can be issued bv this Coutl. Karntyogi Nagur

¶38It is then contended by the JDs that pursuant to the 2002 MOll,' I(armyogi Nagar held by KPPL was to be divided between DI( Agrawal Group and VN Agrawal Group. As regards the triparlite agreelnent refelrcd to earlier whic.h was entered into on 3'd June 2005, it is contended by the JDs that I(armyogi Nagar was not to be allocated to any pcrson and was to remain with KBPL in which VN Agrawal and DI( Agrawal Groups had oe- <.9 ^f 24 of 28 &.2 -di* ,+i1 *'',1 o v\9 assets like Karmyogi Nagar in KBPL and it was to serve the liability of the I{armyogi Group. It is fuither contended that the tripartite agreetnent was not entered into pursuant to the MOU. Various circumstances are higiilighted to demonstrate this.

¶39Without going into these details, it suffices only to notice that the DI{s thernselves stated that the division of Karamyogi Nagar jointly to both the groups had been achieved and, therefore, the Courl rrlay recold satisfaction of the Award by transfbr of I(armyogi Nagar to Neelpadam/nominees and Techman Buildwell pvt. Ltd./nominees pursuant to the said tripartite agreement. It is, accordingly, ordered' R. Kant & ComPanY

¶40An objection is raised as to the division plan of R' I(ant & Company not being signecl till date. The DFIs have pointed out thal KRPL is a partner in R. I(ant & company and that by another MOU dated 1ltr' November 1992' the properly of R. Kaut & company was divided amongst its variotts paftner-s. The Award deals with the assets of R. I(ant & Compaly which fell to the shares of I(FPL. It is stated that since Dinesh l(umar Agrawal has accepted the Awald and has filed the present execution petition' he is obviously not cirallenging the division of assets of It' I(ant & Company' It is ciaimed that all the assets of I(ant Enclave will fall to the shares of I(BPL includin! the Film Studio and Senior Secondary School which are clearly identified on the ffiep, a copy of which has been placed on record in the execution petition.

¶41The question of transfer from the Government of Halyana for Group Housing in favour of vREPL is a matter which would be dealt with by the Court when it takes up the question of executing the impugned Award' This Der se does not make the Award unenforceable or invalid for that leason. The moclified layout plan marks out the properties--lpng to the share-of o-EX.P.63 of 2008, etc. nt t / ^ 25 of 28 {o i{.- r";'"$F" 'Att'"' w KBPL and a copy of the modified plan is also placed on fecord' Even as regards the senior secondaiy school, there appeal's to be a layout plan even according to Vishwa Nath Agrawal' These,objections as legards thc assets in I(ant Enclave do not affect the validity of tire Awar d per se' At this stage the court is concerned with the question whether the Award is enforceable as .such. Any difficulty that would be faced in the matter of opelationalization of the Award will be dealt with at the appropriate stage' With mole than 1 1 years having elapsed after the passing of the Award, it is impoftant to ensure that the Award to the best extelt possible is enforced' It does appcar ftorn the written submissions filed by the DFIs that hundreds of plots in I(ant Enclave have been sold and transfened by owners inqluding the DI( Agrawal Group, the vN Aglawal Group and other partners of R. I(ant & company' F^S/

¶42The next objection concerns the allocation by the Arbitrator of l?loor Space Index ('FSI',) to the parties. As pointed out by the DI{s themselvcs' FSI is only a mathematical ratio and does not denote physical assets' The Arbitralor appears to have used the term 'FSI' in a commou parlhnce as' buildable area.

¶43These are againobjections which can be dealt with at the appropriate stage. It is possible that the allottees could, enter into agreements between them and dernark their respective shares. All these objections really do not impinge on the validity or the enforceability of the Award. Moti Cinema uncl Vikram Resl Estste

¶44As regards Moti cinema and vikram Real Estate, there appears to be some dispute between KSPL and Banarasi I(rishna committee which was refeged to arbitration. In the said arbitration, the Arbitratol awarded Rs'41 lakhs to I(SPL along with interest at l2d/o per annum. The objections filed by the VN Agrawal Group were dismissed by this Court$Ft in appeal it has .\, ^J 26 0f 28 # lqr v, .afc .f' )-,.,i, (_.. i:;3 EX.P. 63 qf 2008, etc. 's,{ been remanded by the Division Bench to a Single Judge. The appeal filed against the said order by Banarasi Ikishna Committee is stated to be pending in the suprcme court. It is obvious that the execution of this palt of the Award will affect the decision in the said arbitral proceedings'

¶45The objection as regards vilaamReal Estate is also ttntenable since in terms of the Award the Karmyogi vatika Project jointly held by vRIIPL and KSPL has been allocated to the DI( Agrawal Group and the Moti Cinetna Project of I(SPL has been allocated to the VN Agrawal Group which allocation is not permissible in view of para 3 of thc Award' 'I"here is' in fact, no asset callecl Moti cinerna Project which can be transfcrrcd to the vN AgrawalGroup.Moreover.,intermsofpara3,nopartallocaliorris permissible. I(aruna Associutes

¶46The firm I(aruna Associates was allocated to the DI( Agrawal (iroup originally, however, in the corrected Award in place of words 'ftrtn I(aruna Associates' the words 'Project Springdales held in I{aruna Associates to the extent of rights of l(armyogi Gloup in the fir'm I(aruna Associates' were insefted. Consequently, there is no need to make the paft1e1s of 'Karuna Associates parties to present proceedings. Fufther, all partners of the finn Dhoopchaon Buiiders are stated to be the parties to the arbitration except Ms' Alka Agrawal who has already signed papers in favour, of Dinesh l(umar Agrawal to whom the said project has been allocated. 'fherefolc, they can easily execute the documents for operational\zingthis parl ol'the Award'

¶47As regards the liabilities which have been allocated, it will be necessary ' for the respective pafties to whom such allocation has been made to take care of the respective liability. Here again, in the actual enforcetnent of the Award, detaiied directions will have to be issued. As regards Kant Enclave Colony, while mining is prohibited the transfer of la1d of the said colo1y is J 27 o.f 28 ,il EX.P. 63 of 2008, etc. t:i.o-# .luo I not. Further,.as regards, I(armyogi Vatika only shares have to be transferred' 4g. There are other minor objections which actually do not affect the validity of the Award dated 19tl'August 2000 as clarified on 19tr' October 2000' Conclusions

¶49For.the aforementioned reasons, this Court rejects all the objections raised by the JDs to the validity of the Award dated 19tr' August 2000 as modifiecr on 19,r, october 2000. It is decrared trrat the said Award dated 19tl' August 2000 as modified by the order dated 19tl' october 2000 is enforceable as such.

¶50oMP Nos. 938 0f zo:-t and.568 0f 2012 are disnissed with costs of Rs.5,000 each which will be paid by the Petitioners to the Dl{s/Itespondents in the petitions through counsel within four weeks'

¶51The execution petitions are fixed for hearing for enforcetnent of the Award dated 1g,r, August 2000, as modified by the order dated lgtr' october 2000, on 8'r' October 2012. July 24,20L2 s.pal ,t' EX.P. 63 of 2008, etc. 28 of28

( IN THE HIGH COURT OF DELHI AT NEW DELHI O.M.P. No. 938 of 201'1 ASEEM ANAND .... Petitioner Through: Mr. Ashwath Sitaraman, Advocate' Versus SATISH KUMAR SHARMA & ORS. ..... Respond6nts Through: None. CORAM: JTISTICE S. MURALIDHAR