SHOBHA W/O SHRIKANTRAO vs. RAGHAVENDRA RAMACHANDRA INNANJE

- 1 - IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 23RD DAY OF DECEMBER, 2021

BEFORE

THE HON’BLE MRS.JUSTICE M.G.UMA

MFA.NO.25344/2012 C/W MFA CROB.820/2013

IN MFA NO.25344/2012

BETWEEN

1 . SMT.SHOBHA W/O SHRIKANTRAO AGE: 60 YEARS, OCC: HOUSEHOLD WORK R/O.NO.708, 17TH MAIN SARASWATIPURAM, MYSORE- 570009

2 . SMT.USHA KISHORE AGE: 55 YEARS, OCC: HOUSEHOLD WORK R/O.NO.87, NANDIDURG ROAD BENSON TOWN, BANGALORE-560046 ...APPELLANTS

(BY SRI.UDAY HOLLA, SENIOR COUNSEL FOR SRI.SURESH KINI & SRI.N.S.KINI, ADVS.)

AND

1 . SRI.RAGHAVENDRA RAMACHANDRA INNANJE AGE: 53 YEARS, OCC: BUSINESS R/O.HOTEL ASHOKA TOWERS, LAMINGTON ROAD, HUBLI

2 . SRI.U INNANJE GURURAJ AGE: MAJOR, OCC: BUSINESS R/O.VIPRA TRAVELS, ASHOK HOTELLAMINGTON ROAD, HUBLI-580020

- 2 -

3 . SRI.U UNNANJE SHRIKANT AGE: MAJOR, OCC: BUSINESS R/O. HOTEL SAMRAT ASHOK, LAMINGTON ROAD, HUBLI-580020

4 . SMT.SHARADA W/O RAMACHANDRA BHAT AGE: 80 YEARS, OCC: HOUSEHOLD WORK R/O.GEETPRASAD, CHITAGUPPI PARK, HUBLI

SINCE RESPONDENT NO.4 IS DECEASED, THE APPELLANTS 1 and 2 AND RESPONDENTS NO.1 TO 3 ARE THE ONLY LRS. HENCH THEY ARE ALREADY ON RECORD.

RESPONDENTS (BY SRI.SANGRAM S.KULKARNI, ADV. FOR R1, SRI.V.P.KULKARNI, ADV. FOR R1 & R2, R3 SERVED; R4 DECESED & APPELLANT NOS.1 & 2 AND R1 TO R3 ARE LRS OF DECEASED R4)

THIS APPEAL IS FILED U/S U/SEC.37(1) OF THE ARBITRATION AND CONCILIATION ACT, AGAINST THE JUDGMENT AND ORDER DTD:14.08.2012 PASSED IN ARBITRATION SUIT NO.6/2010 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD, PARTLY ALLOWING THE SUIT FILED U/S. 34 OF THE ARBITRATION AND CONCILIATION ACT.

MFA CROB.820/2013

BETWEEN

SRI.RAGHAVENDRA RAMACHANDRA INNANJE AGE: 56 YEARS, OCC: BUSINESS R/O.HOTEL ASHOKA TOWERS, LAMINGTON ROAD, HUBLI.

...CROSS OBJECTOR

(BY SRI.SANGRAM S.KULKARNI,)

- 3 - AND

1 . SMT.SHOBHA W/O SHRIKANTRAO AGE: 62 YEARS, OCC: HOUSEHOLD WORK R/O.NO.708, 17TH MAIN, SARASWATIPURAM, MYSORE- 570009

2 . SMT.USHA KISHORE AGE: 58 YEARS, OCC: HOUSEHOLD WORK R/O.NO.87, NANDIDURG ROADBENSON TOWN, BANGALORE-560046

3 . SRI.U. INNANJE GURURAJ AGE: 59 YEARS, OCC: BUSINESS R/O. WIPRA TRAVELS ASHOK HOTEL LAMINGTON ROAD, HUBLI, DIST: DHARWAD.

4 . SRI.UNNANJE SHRIKANT AGE: 57 YEARS, OCC: BUSINESS R/O. HOTEL SAMRAT ASHOK LAMINGTON ROAD, HUBLI, DIST: DHARWAD.

5 . SMT.SHARADA W/O. RAMACHANDRA BHAT AGE: 82 YEARS, OCC:HOUSEHOLD WORK, R/O. GEETAPRASAD, CHITAGUPPI PARK, HUBLI -580020, DIST: DHARWAD. …RESPONDENTS

(BY SRI.SRI.SURESH N.KINI, ADV. FOR R1 & R2, SRI.KUSHAL V.BOLMAL & SRI.PURUSHOTTAM MANCHALI, ADVS. FOR R3; R4 SERVED; R5 DECEASED & R1 TO R4 ARE LRS OF DECEASED R5)

THIS MFA CROB. U/O 41 RULE 22 OF CPC 1908, SET ASIDE THE JUDGMENT AND AWARD DTD:14.08.2012 PASSED IN ARBITRATION SUIT NO.6/2010 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD, PARTLY ALLOWING THE SUIT FILED U/S. 34 OF THE ARBITRATION AND CONCILIATION ACT.

THIS APPEAL AND CROSS OBJECTION HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.12.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

- 4 -

JUDGMENT

The appellants in MFA No.25344/2012 being the claimants in the arbitral proceedings and respondent Nos.1 and 2 in A.S.No.6/2010 on the file of the learned Principal District and Sessions Court, Dharwad (hereinafter referred to as ‘the court’ for short) are before this court to modify the award passed by the court reducing the rate of interest to 6% p.a. on the amount that is to be paid to them and to restore the award passed by the learned arbitrator awarding interest at the rate of 18% p.a. from 22.06.1993, along with cost of the arbitral proceedings. 2. Respondent No.1-cross objector was the petitioner in A.S.No.6/2010 and one of the respondents before the learned arbitrator is before this court in MFA.Crob.820/2013 challenging the impugned judgment and award passed by the court and also by the learned arbitrator directing the respondents to pay Rs.3,00,000/- each to the appellants with interest at 18% p.a. and seeking to set aside the award passed against him.

- 5 - 3. Brief facts of the case are that, Sri.U.Ramachandra Bhat is the father of the appellants and respondents. He had two daughters and three sons. He owned various properties in Hubballi which are described as scheduled properties. During the lifetime of the said Ramachandra Bhat, he formed a partnership firm by name Ashok Hotel consisting of himself and his three sons, as partners. It is stated that Clause 18 of the said partnership deed provides for arbitration clause of any dispute between the partners or their representative of such partners. On 22.06.1993, the said Ramachandra Bhat died and it is contended by the appellants/daughters that he died intestate and they have begotten 2/5th share over the schedule properties. It is stated that one Sri.Biradar obtained signatures of the appellants/daughters on a document stating that wishes of the deceased Ramachandra Bhat will be fulfilled by giving effect to the same through the document. It is stated that thereafter, the partnership was reconstituted with the consent of the appellants. 4. It is the contention of the appellants that their father late Ramachandra Bhat earned these properties and joined his

- 6 - sons as partners only for income tax purposes. The properties left behind by the deceased Ramachandra Bhat is worth more than Rs.100 crores. Respondent Nos.1 to 3 being the sons have not contributed anything either in securing the properties or developing it. The respondents neglected to give the share in the schedule properties left behind by late Ramachandra Bhat to the plaintiffs. Since there was an arbitration clause in the partnership deed to which father of the appellant was a party, Misc.Petition No.35/2005 was filed before this court seeking appointment of the arbitrator. The said petition was allowed and Sri.S.Anantmurthy, Retd. District Judge was appointed as the sole arbitrator. 5. Learned arbitrator passed an award after holding the proceedings. As per the award, each of respondent Nos.1 to 3 were directed to pay Rs.3,00,000/- each to the appellants, with interest at 18% p.a. from 22.06.1993 till the date of payment, within three months from the date of the award, along with cost of arbitration. Respondent No.1 is the cross objector herein challenged the said award by filing the Arbitration Suit in

- 7 - A.S.No.6/2010 before the court. The said suit was partly decreed confirming the award passed by the learned arbitrator but reducing the rate of interest from 18% p.a. to 6% p.a. to be paid on Rs.3,00,000/- that is to be paid to each of the appellants. 6. Being aggrieved by reduction of the rate of interest from 18% p.a. to 6% p.a. in the arbitration suit, the appellants who are the daughters of late Ramachandra Bhat are before this court seeking restoration of the rate of interest awarded by the learned arbitrator. 7. In the meantime, the cross objector respondent No.1 who is one of the sons of late Ramachandra Bhat is impugning the judgment passed in A.S.No.6/2010 wherein the award passed by the learned arbitrator was confirmed except reducing the rate of interest as stated above by filing the cross objection. 8. Heard learned Senior Counsel Sri.Uday Holla for Sri.Suresh Kini and Sri.N.S.Kini for the appellants, Sri.Sangram S.Kulkarni for respondent No.1 and Sri.Kushal Bolmal & Sri.Puroshottam Manchali for respondent No.3.

- 8 - 9. Learned senior counsel representing the appellants/daughters submitted that the deceased Ramachandra Bhat, father of the appellants died intestate leaving behind him huge properties worth more than Rs.100 Crores. As per the partnership deed that was entered into between late Ramachandra Bhat along with his three sons, there was an arbitration clause to settle the dispute between the partners or their legal representatives. In terms of the said clause 18, found in the partnership deed, the sole arbitrator was appointed who passed an award directing each of the respondents/sons to pay an amount of Rs.3,00,000/- to each of the appellants, with interest at 18% p.a. from 22.06.1993 along with full cost of the arbitration proceedings within three months from the date of the award. Even though the appellants were entitled for 2/5th share in all the properties left behind by their father, they being daughters satisfied with the award passed by the sole arbitrator. Even though a paltry sum of Rs.3,00,000/- was ordered to be paid by each of the brothers with interest, however, the said award of the sole arbitrator was challenged by one of the brother while other two brothers have accepted the same. But however,

- 9 - they have also not paid even the said sum of Rs.3,00,000/- ordered to be paid as per the award passed by the sole arbitrator. The arbitration suit filed by the cross objector herein was considered by the trial court once again and affirmed the arbitration award passed by the sole arbitrator. However, the rate of interest was reduced from 18% p.a. to 6% p.a. Therefore, the appellants are before this court challenging the portion of the judgment passed in A.S.No.6/2010. 10. Learned Senior Counsel submitted that cross- objector and other respondents deliberately withholding the amount that was ordered to be paid under the arbitration award. Even though the properties are worth more than Rs.100 Crores, the appellants are satisfied with the arbitration award, but in spite of that, the brothers are not ready to pay the amount and settle the dues. The whole idea behind filing of the arbitration suit and also filing of cross objection before this court is to deny the proceeds of arbitration award to the appellants. 11. Learned Senior Counsel contended that the scope of Section 34 of the Arbitration and Conciliation Act, 1996

- 10 - (hereinafter referred to as ‘the Act’ for short) is very limited and only on satisfying the grounds made out under Section 34(2) of the Act, the court can interfere with the arbitration award but not otherwise. It is settled proposition of law that court cannot sit in judgment over arbitration award to re-appreciate the materials on record. In the present case, none of the grounds mentioned under Section 34(2) of the Act are made out for the court to interfere with the rate of interest that was granted in the arbitral award. Therefore, the interference by the trial court in the rate of interest that is to be paid by the respondents, is illegal and the same is to be set aside by restoring the arbitral award passed by the sole arbitrator. 12. Learned Senior Counsel placed reliance on the decisions of the Hon’ble Apex Court in the case of Satna Stone and Lime Company Limited Madhya Pradesh And Others vs. Union of India and Another1; Oil and Natural Gas Corporation vs Wig Brothers Builders and Engineers Private Limited2; Ravindra Kumar Gupta and Company vs

1 (2008) 14 SCC 785 2 (2010) 13 SCC 377

- 11 - Union of India3 and Associate Builders vs Delhi Development Authority4 to contend that the arbitrator is the sole judge who can consider the evidence before him and it is not for the court to act as a judge by reconsideration of the evidence that were placed before the arbitrator. The court should approve the award by supporting the same, unless it falls under Section 34(2) of the Act. 13. The learned Senior Counsel also placed reliance on the decision of the Hon’ble Apex Court in the case of P.R.Shah, Shares and Stock Brokers vs B.H.H.Securities Private Limited and Others5 to contend that the court cannot sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence. Learned Senior Counsel contended that position of law is made very clear that the arbitral award can be challenged only under the grounds mentioned under Section 34(2) of the Act.

3 (2010) 1 SCC 409 4 (2015) 3 SCC 49 5 (2012) 1 SCC 594

- 12 - 14. Learned Senior Counsel also placed reliance on the decision of the Hon’ble Apex Court in the case of State of Haryana and Others vs S.L.Arora and Company6 to contend that Arbitral Tribunal can award interest in accordance with Section 31(7)(a) of the Act, subject to any term regarding interest in the contract. The interest awarded by the arbitrator can be interfered with by the court only if it finds that such award of the interest is in conflict with, or violating the public policy of India, but not under any other circumstances. The discretion of the arbitrator is to fix the rate of interest under the facts and circumstances of the case. The arbitrator is authorized to award interest to pre-reference period, pendent elite period, post-award period and post-decree period. The award of interest at the rate of 18% p.a. is quite reasonable as awarded by the arbitrator and there are no reasons for the court to interfere with the same. 15. Learned Senior Counsel also placed reliance on the decision of the Hon’ble Apex Court in the case of Hyder Consulting (UK) Limited vs Governor, State of Orissa

6 (2010) 3 SCC 690

- 13 - through Chief Engineer7 to contend that generally the interest will be imposed to compensate for denial to one party, by the other party, of money which rightfully belongs to said former party and the pre-award interest is to ensure that arbitral proceedings are concluded without unnecessary delay as longer the proceedings, longer would be the period attracting interest, it will ensure speedy payment in compliance with the arbitral award. 16. Learned Senior Counsel also placed reliance on the decision of the Hon’ble Apex Court in the case of Reliance Cellulose Products Limited vs Oil and Natural Gas Corporation Limited8 to highlight the position of law that the arbitrator has jurisdiction to award interest for all the three periods, i.e., pre-reference period, pendent elite and post-award period. He also placed reliance on the decision of the Hon’ble Apex Court in the case of MMTC Limited vs Vedanta Limited9 to contend that the trial court acting under Section 34 of the Act does not sit in appeal over the arbitral award to interfere with

7 (2015) 2 SCC 189 8 (2018) 9 SCC 266 9 (2019) 4 SCC 163

- 14 - the same on merits, unless a ground is made out under Section 34(2)(b)(ii) i.e., unless the award is against the public policy of India. But such interference would not entitle the court to interfere with the rate of interest awarded. Relying on this decision, learned Senior Counsel contended that when the award of interest by the arbitrator should have been upheld by the court, unless the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the court is shocked, or when such illegality goes to the root of the matter. 17. Placing reliance on these decisions, learned Senior Counsel contended that the learned arbitrator after recording evidence and considering the documents that were relied on by the parties, appreciated the same and exercised judicious discretion by passing the arbitral award. But the trial court exceeding the limits under Section 34 of the Act, proceeded to modify the award without any ground made out as required under Section 34(2)(b)(ii) of the Act. The trial court has also proceeded to record the evidence and also marked the documents once again, even though the scope of Section 34 of

- 15 - the Act is very limited. Therefore, modification of the arbitral award by reducing the interest payable to the appellants is apparently erroneous, which has to be interfered with by this court. Accordingly, he prays for allowing the appeal. 18. Per contra, learned counsel for respondent No.1/cross objector opposing the submissions made by the learned Senior Counsel contended that there is inordinate delay in seeking the reference of the dispute to arbitration, when there is no arbitration agreement between the appellants and the respondents to refer the dispute to the arbitration. The said stand taken by respondent No.1 when Misc.Petition No.35/2005 was filed before this court seeking appointment of an arbitrator and while passing the order, this court categorically held that it is for the arbitrator to consider the objections or issues raised by the respondents, including existence of valid arbitration agreement between the parties and such other matters, which goes to the very jurisdiction of the Arbitral Tribunal. The arbitrator or the trial court have not considered these issues which go to the root of the matter. When there is no valid

- 16 - arbitration agreement, the jurisdiction of the arbitrator to decide the dispute itself would be taken away. When there is inordinate delay in approaching the court will disentitle the appellants from seeking any relief. 19. Learned counsel submitted that the deceased Ramachandra Bhat and the respondents were partners of the partnership firm which has nothing to do with the appellants. The partnership firm was reconstituted with the consent of the appellants after the death of the Ramachandra Bhat. But the appellants are not parties to the partnership deed at any point of time and they cannot take advantage of the clause in the said deed, to seek reference of the dispute to the arbitrator. Learned counsel further submitted that Ex.P2 on which the appellants are relying do not contain any arbitration clause to seek appointment of the arbitrator. 20. Learned counsel further contended that, initially the appellants issued the notice seeking appointment of an arbitrator on 07.06.1995. The respondents have issued a reply on 01.09.1995, but the appellants approached this court seeking

- 17 - appointment of an arbitrator by filing Misc.Petition No.35/2005 i.e., after lapse of 10 years. Issuance of notice subsequently was only to save the limitation and it would not enure to the benefit of the appellants. Therefore, the very award passed by the arbitrator is bad in the eye of law and the same is liable to be set aside. 21. Learned counsel further submitted that the deceased Ramachandra Bhat father of the respondents died testate as he left behind a Will. The respondents have obtained probate of the said Will by the competent court. The appellants never objected for grant of probate. Under such circumstances, the appellants cannot claim any share in the business or in the properties left behind by the deceased Ramachandra Bhat. 22. Learned counsel also submitted that granting of interest without there being an agreement to that effect, that too prior to the date of request for referring the dispute to the arbitration is beyond the scope of the arbitral proceedings in view of Section 21 of the Act. Learned arbitrator awarded interest that too at the rate of 18% p.a. from the date of Ex.P2,

- 18 - which is much before even issuance of notice seeking appointment of an arbitrator. Even according to the appellants, the cause of action for filing miscellaneous petition before this court was on 13.01.2005 i.e., when the second notice was issued and therefore, at the most the interest could have been awarded from that date and not from 1995. 23. Learned counsel further submitted that as per Section 7 of the Act, an arbitration agreement to seek appointment of an arbitrator under the Act should be in writing, signed by the parties. In the present case, no such agreement is in existence, which was also ignored by the arbitrator while passing the award in question. Learned arbitrator ignored the substantive provisions of law of the Limitation Act and also of the Arbitration and Conciliation Act and therefore, the award is opposed to the public policy as highlighted under Section 34(2)(b)(ii) of the Act. 24. Learned counsel placed reliance on the decision of the Delhi High Court in the case of Lalit Kala Accademy vs

- 19 - Svapan Const. Ae+10 to contend that, before passing the award, the Arbitral Tribunal ought to have considered and answered at the first instance and before ventured to decide the claims of the parties, with regard to the existence of the arbitration agreement/clause, jurisdiction of the arbitrator to decide the issue and also the objections regarding bar of limitation. The party should have left to take any statutory remedy when the arbitrator was not having jurisdiction to entertain the reference. He further contended that, when such serious objections were raised by the respondents which go to the root of the matter, the arbitrator should have held preliminary enquiry and preliminary finding should have been given. No such procedure was adopted by the learned arbitrator which vitiates the entire proceedings. 25. Learned counsel placed reliance on the decision of the Hon’ble Apex Court in the case of Oil and Natural Gas Corporation Ltd., vs SAW Pipes Ltd.11 to contend that, if the award is contrary to the substantive provisions of law or the

10 (2005) DLT 495 11 AIR 2003 SC 2629

- 20 - provisions of the Act or against the terms of the contract, it would be patently illegal, which could be interfered under Section 34 of the Act. Therefore, learned counsel for respondent No.1/cross objector seeks for dismissal of the appeal as devoid of merits and to allow the cross objection by setting aside the arbitral award passed by the arbitrator, which is confirmed by the court. 26. Learned Senior Counsel in reply to the above, submitted that father of the appellants late Sri.Ramachandra Bhat was party to the partnership deed which is marked as Ex.P1 and Clause 18 is the arbitration clause, which provides for referring the disputes, not only between the partners, but also between the legal representatives of the partners. The question as to whether there was arbitration clause for appointment of an arbitrator or not and whether the claim of the appellants is barred by limitation, were considered by the learned arbitrator by framing specific issues at para 10 of the arbitral award. Those issues were answered in favour of the appellants after discussing about the rival contentions between the parties. The said finding

- 21 - was also affirmed by the trial court while acting under Section 34 of the Act. Therefore, the cross objector cannot once again raise the same issue before this court as the scope of Section 37 of the Act is also very restricted. Even while filing cross objection, the question of limitation was never raised by the cross objector. 27. Learned Senior Counsel further submitted that, even though learned counsel for the respondents contended that deceased Ramachandra Bhat had left behind him a Will and a probate was obtained, the same was suppressed before any of the proceedings. Even in the so called probate proceedings, the appellants were not made as parties. The conduct on the part of the respondents itself go a long way in deciding the matter. It is nothing but a fraud committed by the respondents not only against the appellants but also against the court. 28. Learned Senior Counsel referred to the decision in Associate Builders (supra) to contend that the decision in ONGC (supra) relied on by the learned counsel for respondent No.1/cross objector was referred to by the Hon’ble Apex Court in this case to form an opinion that, when a court is applying the

- 22 - public policy test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. Thus, the cross objector cannot contend that phrase “public policy of India” used in Section 34 of the Act is required to give a wider meaning. Thus, the learned Senior Counsel prays for allowing the appeal and to dismiss the cross objection in the interest of justice. 29. Perused the material on record. The point that would arise for my consideration is: Whether the judgment and decree dated 14.08.2012 passed by the learned Principal District and Sessions Judge, Dharwad in Arbitration Suit No.6/2010 calls for any interfere by this court in this appeal and cross objection? My answer to the above point is in the ‘Affirmative in the appeal and in the negative in the cross objection’ for the following: REASONS 30. The brief facts of the case relating to the appeal and cross objection are that, the appellants being the daughters of

- 23 - late U.Ramadhandra Bhat who was the owner of the property bearing CTS Nos.4269 and 4630 situated at Hubballi measuring 18900 sq.ft. which is described as schedule property along with four storyed building admeasuring 41,192 sq.ft with 130 rooms and started a hotel under the name and style as a Ashok Hotel, worth more than Rs.100 crore. It is also contended by the appellants that their father late Ramachandra Bhat owned a house property bearing No.17 measuring 96 ft. x 80 ft. with a house measuring 8000 sq.ft. which is worth more than Rs.10 crore. The said Ramachandra Bhat was having three sons and two daughters and during his lifetime, a partnership firm under the name and style M/s Ashok Hotel was formed consisting him and his three sons. It is stated that clause 18 of the said partnership deed provides arbitration in case of dispute between partners or their legal heirs or representatives. The said Ramachandra Bhat died intestate. Therefore, it is the contention of the appellants that they are entitled for 2/5th share in the scheduled properties. However, within 3-4 days from the death of their father, the appellants were made to sign a document at the instance of one Mr.Biradar, who persuaded the appellants

- 24 - saying that it was the wish of late Ramachandra Bhat and accordingly, the appellants have signed the same without knowing the contents of it. It is stated that the partnership firm in question formed only for the purpose of income tax, but the sons have never contributed anything to the partnership firm as the properties were the self-acquired properties of the deceased. It is stated that after getting signatures from the appellants on the document by Mr.Biradar who is the well-wisher of the deceased Ramachandra Bhat, the sons of late Ramachandra Bhat reconstituted the partnership firm with consent of the appellants. 31. It is contended that even though the appellants are entitled to 2/5th share in all the properties that were left behind by their father late Ramachandra Bhat, since they felt that they were bound by the document, signed by them as it was the wish of their late father, they claimed right on the basis of the said document dated 22.06.1993, according to which, each of the sons of late Ramachandra Bhat are required to pay Rs.3,00,000/- to each of the daughters in lieu of their legitimate

- 25 - share over the properties left behind by their father. However, it is the contention of the appellants that their brothers have not acted upon to pay the said amount of Rs.3,00,000/- each even though they got reconstituted the partnership firm by obtaining signatures of the appellants, immediately, after the death of their father.Therefore, a Misc.petition No.34/2005 was filed before this court and the arbitrator was appointed to resolve the dispute and the learned arbitrator passed an arbitral award directing respondent Nos.1 to 3 to pay Rs.3,00,000/- each to the appellants with interest at the rate of 18% p.a. from the date of the document i.e., 22.06.1993 till its realization and with costs of the arbitration. This arbitral award was questioned before the court under Section 34 of the Act by respondent No.1 who is the cross-objector herein, in A.S.No.6/2010 which was came to be allowed in part, but the arbitral award passed by the learned arbitrator was confirmed. However, the rate of interest to be paid at the rate of 18% p.a. was reduced to 6% p.a. This finding of the court in A.S.No.6/2010 is challenged by the appellants herein and respondent No.1 being the cross-objector is

- 26 - challenging the confirmation of the award passed by the learned arbitrator. 32. It is the contention of the cross-objector who is the one of the sons of the late Ramachandra Bhat that there was inordinate delay and laches on the part of the appellants in seeking appointment of the arbitrator. The relationship between the parties is not in dispute. However, it is submitted that their father died on 19.06.1993, but the miscellaneous petition seeking appointment of the arbitrator was filed in the year 2005. The said miscellaneous petition was came to be allowed by this court. However, the cross-objector was permitted to raise issue regarding existence of valid arbitration agreement between the parties and such other like matters which goes to the very jurisdiction of the Arbitral Tribunal before the arbitrator. Therefore, respondent No.1 had raised the issue of limitation before the learned arbitrator. 33. It is also the contention of respondent No.1 that there was no arbitral agreement between the parties and therefore, the dispute could not have been referred to the

- 27 - arbitration. In spite of that the learned arbitrator was appointed and again reserving liberty to raise the issue regarding existence of valid arbitration agreement between the parties and such other like matters which goes to the very jurisdiction of the Arbitral Tribunal. This issue was also highlighted before the learned arbitrator. 34. The third contention raised by the cross-objector is that, his father Ramachandra Bhat had left behind him a Will and therefore, he had not died intestate. As per the Will, it is only the sons who are entitled for the properties left behind by theirfather. Therefore, the appellants are not at all the legal representatives of the deceased. The sons of late Ramachandra Bhat obtained probate in respect of the Will by initiating the probate proceedings and obtained probate. Under such circumstances, the appellants are not entitled for any share in the properties that was left behind by the testator. 35. The next contention raised by the learned counsel for the cross-objector is that, when the issues like jurisdiction of the arbitrator to hold arbitration in the absence of any arbitration

- 28 - agreement and the limitation in approaching to resolve the dispute before the learned arbitrator which are core issues to be decided by him, the same were not considered as preliminary point, but proceeded to pass the impugned award without any jurisdiction. The arbitral award passed by the learned arbitrator was without considering the above facts and circumstances and it is opposed to public policy and should have been set aside by the court in the suit filed by him. However, the court also did not considered these facts and circumstances and proceeded to confirm the arbitral award. But the rate of interest was reduce from 18% p.a. to 6% p.a. Therefore, it the contention of the cross-objector that the entire arbitral award is opposed to public policy, as the same was passed without jurisdiction and passed patently in violation of the statutory provisions. Therefore, it is to be interfered with. 36. The relationship between the parties is not in dispute so also the fact that late Ramachandra Bhat acquired huge properties from out of his own income and died on 19.06.1993. The appellants contend that his father died intestate while the

- 29 - cross-objector contends that their father died testate, as he left behind him a Will in respect of which a probate was obtained by the competent court in P&SC.No.4/2001 by the sons of the testator who are legatees under the Will. The learned arbitrator raised a specific issue i.e., issue No.5 as to whether respondent Nos.1 to 3 prove that late Sri.U.R.Bhat had executed a Will and it has been duly probated. While answering the said issue No.5, the learned arbitrator held that initially a photocopy of the order sheet in P&SC No.4/2001 filed under Section 372 of Indian Succession Act and the order passed therein dated 06.09.2001 was produced before the arbitrator. It was noticed by the learned arbitrator that the appellants were not parties to the said P&SC proceedings and existence of the Will was never raised by the respondents while issuing the reply notice. The Will was not produced before the arbitrator and that even according to the Will, widow of the testator was given the life interest in the immovable properties situated at Hubballi. Respondent No.1 was claiming partition of the said properties even during her lifetime. Considering all these facts and circumstances, a specific finding is given by the learned arbitrator that the daughters were kept in

- 30 - dark about filing of P&SC proceedings. They were not confronted with the Will said to have been executed by their father. Therefore, the probate was obtained behind the back of the daughters and as such, they are not bound by the same. This finding of the learned arbitrator cannot be found fault with under any law for the time being in force. But on the other hand, it is a well reasoned finding by the learned arbitrator. 37. The next contention raised by the cross-objector is that there is inordinate delay in claiming the share over the property in terms of the document dated 22.06.1993 and therefore, the proceedings before the arbitrator was barred by limitation. The learned arbitrator has framed issue No.2 with regard to the question of limitation and answered the said issue in the negative, holding that the proceedings is not barred by limitation. Learned arbitrator after considering the rival contentions of the parties held that ouster of the appellants from the joint family was never proved by the respondents and accepted the contention of the appellants that only after denying their right to get a share, they approached this court for

- 31 - appointment of an arbitrator, which was well within time. Learned arbitrator categorically held that merely because the father died way back on 19.06.1993, the right of the daughters over the properties left behind by him will not be taken away by efflux of time. But on the other hand, held that appellants being the daughters have stepped into the shoes of their father in respect of the assets of the firm and they had continuous cause of action to have their share ascertained and thus, the proceedings initiated is not barred by limitation. This finding of the learned arbitrator is also cannot be said to be perverse as he has referred to the contention of both the parties and has answered the issue in the negative which is liable to be upheld. 38. Maintainability of the arbitral proceedings was also questioned by the cross-objector and issue No.1 was framed by the learned arbitrator as to whether the arbitration proceeding is maintainable and whether there was cause of action for the claimants. The learned arbitrator has considered this aspect of the matter in the light of the scope of Section 40(1) of the Act and considered partnership deed dated 05.03.1993 and clause

- 32 - 18 which provides for appointment of an arbitrator to resolve the dispute not only between the partners but also between their legal heirs, who include appellants. The contention of the appellants that the partnership deed was never came into effect was out-rightly rejected by the learned arbitrator. 39. The learned arbitrator specifically noticed that issue No.2 regarding limitation was taken up for preliminary hearing, but he found that the arbitral proceedings was maintainable only in respect of Ashok Hotel business and related matters in respect of which Ex.D3-partnership deed and clause 18 the arbitral clause is in existence. 40. Apart from that, issue Nos.3 and 4 were also raised regarding entitlement of the claimants for Rs.9,00,000/- each from respondent Nos.1 to 3 jointly and severally along with interest and also with regard to their claim for compensation of Rs.10,00,000/- as damages with interest. The additional issues as to whether disputed property was the self-acquired property of their father late Ramachandra Bhat and whether the claimants are entitled to have a share over the same and whether the

- 33 - claimants are entitled for partition and separate possession of their shares in the disputed property along with interest thereon were also framed. Learned arbitrator found that the claimants have signed the document dated 22.06.1993 which was brought by Mr.Biradar and thereby the appellants have agreed to receive Rs.3,00,000/- each from each of their brothers and the partnership firm was also reconstituted immediately thereafter wit the consent of the claimants. Therefore, it was held that they are only entitled for Rs.3,00,000/- each from each of their brothers and not any share over the properties. It was also held that the claimants are not entitled for damages or compensation as claimed, but they are entitled for interest at the rate of 18% p.a. Thus, an award was passed directing each of respondent Nos.1 to 3 to pay Rs.3,00,000/- within three months to each of the claimants with interest at the rate of 18% p.a. from 22.06.1993 i.e., the date of the document on which the parties were relying on, along with full cost of arbitration proceedings. 41. On going through this arbitral award passed by the learned arbitrator, it cannot be said that the learned arbitrator

- 34 - has went wrong on any point or left any issue that was raised by the parties to the lis, unanswered. 42. I have considered the contention of the learned counsel for the cross-objector that the arbitral award is opposed to the public policy and therefore should have been set aside by the court in A.S.No.6/2010. The arbitral award was challenged before the court in A.S.No.6/2010 under Section 34 of the Act. As per Section 34(2), arbitral award could be set aside by the court only after satisfaction of the requirement mentioned in sub-Sections (a)(b) of Section 34 of the Act and not otherwise. It is the specific contention of the cross-objector that his case falls under Section 34(2)(b)(ii) where the arbitral award passed by the learned arbitrator is in conflict with the public policy of India. 43. In this regard, he has placed reliance on the decision of the Delhi High Court in Lalit Kala Accademy (supra) wherein the Court while considering the jurisdiction of the Arbitral Tribunal held that looking to the facts and circumstances of the case and also objections raised before the Arbitral Tribunal

- 35 - regarding jurisdiction and existence of valid arbitration agreement, Tribunal should have considered and answered the said issue in the first instance before it ventured to decide the claim of respondent No.1 on merits. In the present case, the contention of the cross-objector that issue No.2 regarding limitation should have been taken up for preliminary hearing and that the arbitral proceedings could not be commenced without deciding the same was rejected and it was held that the arbitral proceedings was maintainable only in respect of Ashok Hotel business and related matters on the basis of Ex.D3-partnership deed on which reliance was placed by the cross-objector himself. 44. It is not in dispute that clause 18 of the said partnership deed provides for resolving the dispute not only between the partners but also between the legal heirs through arbitrator. Since the appellants have stepped into the shoes of their father after his death as his legal heirs, they are entitled to take advantage of clause 18. Therefore, I do not find any merit in the said contention raised by the cross-objector.

- 36 - 45. Learned counsel for the cross-objector also placed reliance on the decision of ONGC (supra) to contend that the impugned arbitral award is in conflict with the public policy of India and it is patently illegal which could have been interfered with under Section 34 of the Act. I have given my anxious consideration to the said decision of the Hon’ble Apex Court, which considered the phrase ‘public policy of India’ used in Section 34 and held that wider meaning is to be given to mean public policy which concern public good and the public interest. However, it is specifically held that the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Therefore, such award could be set aside, if it is contrary to fundamental policy of Indian law, the interest of India, or justice or morality or in addition, if it is patiently illegal. However, it is specifically stated that, such illegality must go to the root of the matter. But if the illegality is of trivial nature it cannot be held that the award is against the public policy. The Hon’ble Apex Court also held that if the award is unfair and unreasonable that it shocks the conscience of the court, then it is liable to be set aside. I have considered the

- 37 - impugned arbitral award in the light of the dictum laid down by the Hon’ble Apex Court and by no stretch of imagination, it could be said that the arbitral award upholding the claim of the appellants who are admittedly the daughters of the deceased, would in any manner contrary to fundamental policy of Indian law, or the interest of India, or justice or morality or in addition, it is patiently illegal, or that same would go to the root of the matter. Learned counsel for the respondents could not justify their contention that the impugned arbitral award is opposed to public policy or conflict with the public policy of India on any count except contending that appellants are not entitled for the reliefs they have claimed. 46. In view of the above, I have considered the impugned judgment and the award passed by the court in A.S.No.6/2010. 47. Learned Senior Counsel placed reliance on the decision of the Hon’ble Apex Court in the case of Santa Sila Devi and Another vs Dhirendra Nath Sen and Others12

12 AIR 1963 SC 1677

- 38 - wherein the Hon’ble Apex Court emphasized certain basic principles to be adopted while considering the arbitral award. One such principle is that the court should approach an award with a desire to support it, if that is reasonably possible, rather than to destroy it by calling it illegal. 48. He has also placed reliance on P.R.Shah, Shares and Stock Brokers (supra) wherein the Hon’ble Apex Court considering the scope and ambit of Section 34(2) of the Act, categorically held that the court does not sit in appeal over the award of Arbitral Tribunal by reassessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. 49. In ONGC (supra), the Hon’ble Apex Court held that, it is now sell settled proposition of law that, while considering a challenge to an award under Sections 30 and 33 of the Arbitration Act, 1940, the court does not examine the award, as an appellate court. it will not re-appreciate the materials on record. An award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to

- 39 - appreciate some facts. But if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award. 50. The Hon’ble Apex Court once again in the case of Ravindra Kumar Gupta and Company (supra) held that scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in catena of decisions of the Hon’ble Apex Court and referred to few such judgments to hold that the court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. 51. The Hon’ble Apex Court in the case of Associate Builders (supra) held in para 16 and 17 as under: “16. It is important to note that the 1996 Act was enacted to replace the 1940 Arbitration Act in order to provide for an arbitral procedure which is fair, efficient and capable of meeting the needs of arbitration; also to provide that the tribunal gives reasons for an arbitral award; to ensure that the

- 40 - tribunal remains within the limits of its jurisdiction; and to minimize the supervisory roles of courts in the arbitral process. 17. It will be seen that none of the grounds contained in sub-section (2)(a) of Section 34 deal with the merits of the decision rendered by an arbitral award. It is only when we come to the award being in conflict with the public policy of India that the merits of an arbitral award are to be looked into under certain specified circumstances.” (emphasis supplied) 52. In the case of State of Haryana and Others (supra) while considering the legal position regarding awarding of interest by the Arbitral Tribunal, the Hon’ble Apex Court held in para 24.6 as under. “24.6. Clause(b) of Section 31(7) is intended to ensure prompt payment by the award-debtor once the award is made. The said clause provides that the “sum directed to be paid by an arbitral award” shall carry interest at the rate of 18% per annum from the date of award to the date of payment if the award does not provide otherwise in regard to the interest from the date of the award. This makes it clear that if the award grants interest at a specified rate up to the date of payment, or specifies the rate of interest payable from the date of award till the date of payment, or if the ward specifically refused interest, clause (b) of Section 31 will not come into play. But if the award is silent in regard to the interest from the date of award,

- 41 - or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any pos-award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post-award interest, the claimant will be entitled to post-award interest at the higher rate of 18% per annum. The higher rate of interest is provided in clause(b) with the deliberate intent of discouraging award- debtors from adopting dilatory tactics and to persuade them to comply with the award.” (emphasis supplied) 53. Similarly, in Hyder Consulting (UK) Limited (supra) it once again considered the validity of the order to awarding interest and held in para 26 as under: “26. Section 31(7)(a) of the Act deals with grant of pre-award interest while clause (b) of Section 31(7) of the Act deals with grant of post-award interest. Pre-award interest is to ensure that arbitral proceedings are concluded without unnecessary delay. Longer the proceedings, the longer would be the period of attracting interest. Similarly, post-award interest is to ensure speedy payment in compliance with the award. Pre-award interest is at the discretion of the Arbitral Tribunal, while the post-award interest on the awarded sum is mandate of the statue-the only difference being that of rate of

- 42 - interest to be awarded by the Arbitral Tribunal. In other words, if the Arbitral Tribunal has awarded post-award interest payable from the date of award to the date of payment at a particular rate in its discretion then it will prevail else the party will be entitled to claim post-award interest on the awarded sum at the statutory rate specified in clause(b) of Section 31(7) of the Act i.e., 18%. Thus, there is a clear distinction in time period and the intended purpose of grant of interest.” (emphasis supplied) 54. In Reliance Cellulose Products Limited (supra) the Hon’ble Apex Court held in paras 7 and 27 as under: “7. Two important five-Judge Bench judgments have laid down that, under the 1940 Act, in the absence of an express bar under the agreement, the Arbitrator has jurisdiction to award interest for all three periods, i.e., pre-reference, pendente lite as well as future interest. The judgment of this Court in Irrigation Department, State of Orissa v. G.C. Roy, (1992) 1 SCC 508, overruled Jena’s case [Executive Engineer (Irrigation), Balimela v. Abhaduta Jena, (1988) 1 SCC 418] and held that arbitrators under the 1940 Act would be clothed with the jurisdiction to award pendente lite interest. Insofar as pre- reference interest is concerned, another five-Judge Bench in Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Ors. v. N.C. Budharaj, (2001) 2 SCC 721, held that arbitrators under the 1940 Act were clothed with the power to award pre-reference interest even before the 1978 Interest Act came into force. We are concerned in the present case only

- 43 - with the 1940 Act. The 1996 Act has made a major departure from the position under the 1940 Act qua pre-reference and pendente lite interest which will emerge from the conspectus of case law laid down by this Court. 27. Coming to Shri Viswanathan’s appeal, we think that the only reason given for reducing interest from 18% to 10% being that ONGC is a Public Sector Undertaking, would not suffice to set aside what was within the Arbitrator’s discretion. There is no finding that this discretion has been exercised perversely, given the interest rates at the time of the award. We thus uphold the grant of interest at the rate of 18% as pre- reference and pendente lite interest.xxxxxx.” (emphasis supplied) 55. Again in MMTC Limited (supra), the Hon’ble Apex Court held that majority of the Arbitral Tribunal found in favour of the respondent, inter alia directed the appellant to pay to the respondent certain sum with interest @ 14% p.a. till the date of the award and @ 18% p.a. thereafter which is held to be within the authority of an arbitrator, which cannot be called in question in the statute under Section 34 of the Act, as the position is well- settled by now that the court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii) i.e., if the award is against the public policy of India or whether the award is arbitrary,

- 44 - capricious or perverse or when the conscience of the court is shocked, or when the illegality is not trivial but goes to the root of the matter and not in any other circumstances. 56. The Hon’ble Apex Court in the recent decision in the case of Project Director, National Highways No.45E and 220 National Highways Authority of India vs M.Hakeem and Another13 once again reiterated the position of law that Section 34 of the Act cannot be held to include within it a power to modify an award, when such power to modify the award under Section 34 of the Act was not included by the Legislator in his wisdom. 57. In the light of these settled position of law, I considered the impugned judgment and award passed by the court in A.S.No.6/2010. Even though court confirmed the arbitral award passed by the learned arbitrator in all other respects, proceeded to modify the rate of interest awarded by the learned arbitrator at the rate of 18% p.a. and reduced it to 6% p.a. only on the basis of the unreported decision of this court in MFA

13 (2021) 9 SCC 1

- 45 - No.1557/2006 dated 18.04.2011 wherein the interest that was awarded by the District Court was modified and reduced to 6% p.a. 58. Various pronouncements of the Hon’ble Apex Court as noted above, lays down the principle of law that the arbitrator can award interest that is, pre-reference period, pendent lite and post-award period. The learned arbitrator has assigned cogent reasons for awarding the interest at 18% p.a. which cannot be said as perverse or illegal to interfere with under section 34 of the Act. Therefore, I find considerable force in the contention raised by the learned Senior Counsel in the appeal preferred by the appellants. Hence, the modification ordered in the impugned judgment passed by the court regarding the rate of interest is liable to be set aside, restoring the arbitral award passed by the learned arbitrator. Even though an attempt was made by the learned counsel for the respondents to challenge the impugned arbitral award and the impugned judgment passed by the court under Section 34 of the Act, I do not find any reason to accept

- 46 - such contentions to interfere with the arbitral award under Section 37 of the Act. 59. The Hon’ble Apex Court once again in the case of Delhi Airport Metro Express Pvt. Ltd. vs Delhi Metro Rail Corporation Ltd.14 observed that there is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award. The Hon’ble Apex Court observed that such an approach would lead to corrosion of the object of the Arbitration Act and the endeavours made to preserve this object, which is minimal judicial interference with arbitral awards. The Hon’ble Apex Court stated that its several judicial pronouncements would become a dead letter if arbitral awards are set aside by categorizing them as perverse or patently illegal without appreciating the contours of the said expression. It is further held that patent illegality should be the illegality that goes to the root of the matter. In

14 2021 SCC Online SC 695

- 47 - other words, every error of law committed by the Arbitral Tribunal would not fall within the expression ‘patent illegality’. 60. I have considered the impugned judgment passed in A.S.No.6/2010. It is strange to note that the court proceeded to record the evidence of the parties and getting exhibits marked once again and re-appreciated the contention of the parties, as if it is a suit to be considered on merits. 61. Before parting with the matter with lots of pain, I have to highlight the sad state of affairs which is still prevailing in the society. The Constitution of India recognized right of equality as fundamental right since from its adoption. Even though 71 long years have elapsed after we adopted Constitution and even though Section 6(A) of Hindu Succession Act come into effect from 09.09.2005 and even though Hon’ble Apex Court in Vineeta Sharma vs Rakesh Sharma and Others15 held that the daughters cannot be deprived of their right to equality conferred upon them by Section 6 of the Hindu Succession Act, the patriarchal mindset has not yet changed. This is a classic

15 (2020) 9 SCC 1

- 48 - example of such patriarchal mindset of the respondents who are sons of late Ramachandra Bhat. Even though father who acquired vast properties and died in the year 1993, the two daughters are still struggling to get a paltry sum of Rs.3,00,000/- from each of the brothers from out of the huge properties left behind by their father. Fortunately, the relationship between the parties is admitted. The document relied on by the appellants is also admitted. The origin of the property left behind by the deceased is also admitted and it is not in dispute that the deceased has left behind the immovable properties worth crores. But still the brothers are fighting endless litigation only to deny the claim of the daughters over Rs.3,00,000/- which is remained to be paid as per the last wish of the deceased. 62. The appellants were in fact entitled to equal share over the properties left behind by their father. Even though respondents contended that father died testate as he left behind him a Will and they obtained a probate in the probate proceedings, they have not chosen to array the appellants as

- 49 - parties to the said probate proceedings for the reasons best known to them. The learned arbitrator rightly held that the said probate was obtained behind the back of the appellants only with an intention to deny the legal rights of the appellants. When the appellants are entitled to equal 2/6th share in all the properties left behind by their father, they satisfied in claiming the paltry sum of Rs.3,00,000/- from out of the vast properties left behind by their father respecting of the consent given by them by signing the document dated 22.06.1993 i.e., within four days after the death of their father. They admit that they have given consent for reconstitution of the partnership firm which said to have been taken place on 25.06.1993 i.e., within six days after the death of their father. When the daughters emotionally attached to the father are satisfied in claiming only Rs.3,00,000/- from each of the brothers as it is the last wish of their father as stated by one Mr.Biradar who is instrumental in getting the signatures of the appellants and respondents on a piece of paper way back on 22.06.1993, the respondents are getting pleasure in denying the rights of the appellants even on such amount, even after admitting that the appellants are their

- 50 - sisters, forget about granting equal share in the properties left behind by their father. 63. The Hon’ble Apex Court in Vineeta Sharma (supra) observed and rightly so, that ‘once a daughter, always be a daughter’. Bringing change in the legislation cannot bring change in the mindset of the citizens. It is a classic example of such mindset even after lapse of 71 long years after adopting Constitution of India and recognition of the rights of the daughter. The conduct of the respondents especially the cross- objector is an example of such mindset to deny the right of the daughters. 64. The cause title to the appeal discloses that the appellants are aged 60 and 55 years respectively, whereas the cross-objector is aged 53 years during 2012. They are enjoying the properties of their father since his demise and fighting the litigation endlessly, but not considering paying of the amount due to the appellants graciously and to restore the relationship which is priceless. Therefore, I am of the opinion that the appeal preferred by the appellants is to be allowed and the cross-

- 51 - objection filed by the cross-objector/respondent No.1 is to be dismissed with cost. 65. In view of the above discussion, I answer the above point in the “Affirmative in the appeal and in the negative in the cross objection” and proceed to pass the following: ORDER The appeal is allowed. The impugned order passed by the learned Principal District and Sessions Judge, Dharwad in A.S.No.6/2010 modifying the interest at 6% p.a. is set aside and the award dated 29.12.2009 passed by the learned arbitrator is confirmed. The cross-objection is dismissed with cost of Rs.50,000/-.

Sd/- JUDGE

MBS/-