Madan Lall Jain and Others vs Kamlesh Sogani and Others

Indira Banerjee, J.—1. This appeal is against a judgment and order dated 23rd July, 2015 passed by the Hon''ble Single Bench in the application being G.A. No. 1911 of 2015 in the suit being C.S. No. 154 of 2015 (Madan Lall Jain & Ors. Vs. Kamlesh Sogani & Anr.) whereby the application as also the suit have been dismissed.

The appellants filed the said suit in this Court praying for the following reliefs.

a) A decree of declaration that the defendant No. 1 is not entitled to deliver any document, deed, instrument, books and records etc. and/or document of properties and assets to the defendant No. 2 until discharge by the defendant No. 2 and/or by SKJ Group of all their obligations under the said Award dated 3rd January, 2013 and particularly the obligations as mentioned in the letter and/or email of the plaintiffs dated 17th December, 2014 and 19th April, 2015;

b) A decree of declaration that the defendant No. 2 and/or SKJ Group is not entitled to in any manner whatsoever receive any document, deed, instrument, books and records etc. and/or document of properties and assets without discharging all their obligations to the plaintiffs and/or to MLJ Group in terms of and under the said Award dated 3rd January, 2013 including those mentioned in the letters and/or e-mails of the plaintiffs dated 17th December, 2014 and 19th April, 2015;

c) Perpetual injunction restraining the defendant No. 1 from handing over possession of documents, deeds, instruments, books and records etc. and/or documents of properties and assets to the defendant No. 2 till discharge by the defendant No. 2 and/or by the said SKJ Group of all their obligations under the said Award dated 3rd January, 2013 to the plaintiffs and/or MLJ Group in satisfaction of the plaintiffs and/or MLJ Group;

d) Perpetual injunction restraining the defendant No. 2 from receiving any document, deed, instrument, books and records etc. and/or document of properties and assets from the defendant No. 1 till discharge by the defendant No. 2 and/or by the said SKJ Group of all their obligations under the said Award dated 3rd January, 2013.

e) Temporary Injunction.

f) Receiver.

g) Attachment.

h) Judgment upon admission.

i) Costs.

j) Further and/or other reliefs.

In the said suit the appellants filed the application being G.A. No. 1911 of 2015 praying for the following reliefs.

a) An order of temporary injunction be passed restraining the respondent No. 1 from handing over possession of all documents, deeds, instruments, books and records etc. and/or documents of properties and assets to the respondent No. 2 till discharge by the respondent No. 2 and/or by the said SKJ Group of all their obligations under the said Award dated 3rd January, 2013 to the petitioners and/or to MLJ Group in satisfaction of the petitioners and/or of MLJ Group.

b) An order of temporary injunction be passed restraining the respondent No. 2 by himself and/or through his servants, agents and/or assigns from receiving any document, deed, instrument, books and records etc. and/or document of properties and assets from the respondent No. 1 till discharge by the respondent No. 2 and/or by the said SKJ Group of all their obligations under the Award dated 3rd January, 2013;

c) Ad-interim orders in terms of the prayers above;

d) Costs of and incidental to this application be paid by the respondents;

e) Such further and/or other order or orders be passed and/or direction or directions be given as to this Hon''ble Court would deem fit and proper.

The facts giving rise to the said suit as pleaded in the plaint, a copy whereof is included in the Paper Book, are briefly enumerated hereinafter.

The appellant Nos. 2 to 4 and the respondent No. 2 are all sons of the appellant No. 1. The appellants along with their respective family members carry on business together and are for convenience referred to as the Madan Lall Jain Group or the MLJ Group.

The respondent No. 2, who is the son of the appellant No. 1 and eldest brother of the appellant Nos. 2 to 4, carries on business along with his wife, son and daughter and his Hindu Undivided Family is for convenience referred to as the Suresh Kumar Jain Group or SKJ Group.

Disputes and differences which had arisen between the appellants and the respondent No. 2 in relation to family properties and family businesses were referred to the arbitration of an Arbitral Tribunal comprising of Mr. Vinod Kumar Jain, Mr. Babu Lall Jain and Mr. Mohan Lall Jain (Luharia) pursuant to an arbitration agreement dated 29th December, 2012. The Arbitral Tribunal made and published an award dated 3rd January, 2013 in terms whereof the respondent No. 1 was appointed custodian.

Before 2008, the business of the Jain family comprised several companies which were managed, controlled and operated jointly by the appellants and the respondent No. 2. The proforma defendant Nos. 3 to 25 are all companies incorporated under the Companies Act controlled by the members of the Jain family.

However from 2008 onwards, disputes and differences arose between the two groups, which as stated above, were referred to arbitration. On the basis of a family settlement in course of the arbitration proceedings, the Arbitral Tribunal made and published an award, by which the business assets and properties held by the MLJ Group and the SKJ Group were divided and partitioned. The award dated 3rd January, 2013 inter alia provided as follows.

(i) The Tribunal appoints Mr. Kamlesh Sogani, Chartered Accountant of 1, R.N. Mukherjee Road, 2nd Floor, Room No. 209, Kolkata - 700001 as custodian of various documents, deeds, instruments, books of account, properties etc. to hold the same till the Award is implemented in terms hereof as also to take all steps required for implementation of this Award, including issuing directions and/or making requests to the parties. The parties will immediately make over all original title deeds and documents relating to all the properties (including supporting documents for those mortgaged/hypothecated/pledged/kept under lien with lenders) either standing in individual name/s or in the name of company/ies or firm/s, books of account and/or any other documents relating to the companies, firms and/or businesses and/or properties to Mr. Kamlesh Sogani. All the parties will duly execute the requisite number of Demat Instruction Slips and/or Share Transfer Deeds and will keep such documents and/or instruments together with original share scripts of all the companies mentioned herein above in the custody of Mr. Kamlesh Sogani. The parties will call meetings of Board of Directors of respective companies to ensure approval and recording of transfer/transmission of shares of various companies in implementation of this Award. Mr. Kamlesh Sogani will hold all documents, including share certificates, share transfer instruments, minutes of the meetings, etc. till individual businesses, properties, companies and/or firms are transferred and the guarantees given by any of the parties are released/discharged in terms of and in complete implementation of this Award. Mr. Kamlesh Sogani will effect and/or cause to be effected transfer of shares, requisite documents for control of firms and/or businesses and/or properties once the parties discharge their respective obligations in terms of this Award and only thereafter will hand over the related documents to the person/s who is/are entitled to receive the same in terms of this Award. It is agreed between the parties that the assessment and/or valuation of any assets and/or liabilities of any of the aforesaid entities as at 31st December, 2012 will be finally done by Mr. Kamlesh Sogani, whose assessment and/or valuation will be final and binding on parties and will not be subject to any challenge in any manner, whatsoever. The parties also agree that they will always comply with the directions and/or requests issued by Mr. Kamlesh Sogani if any of the parties fail and/or neglect to comply with the directions and/or requests issued/make by Mr. Kamlesh Sogani, the defaulting party will be liable to pay a sum of Rs. 2,50,000/- (Rupees Two Lacs Fifty Thousand) only for each day of default to the other party who not at fault till the time of the default ceases.

(ii) If any of the party fails and/or neglects to perform his/their obligations and/or duties as envisaged in this Award then in such an event in addition to the penal clause mentioned elsewhere in this Award the defaulting party shall also be liable to pay sum calculated @ Rs. 1,00,000/- (Rupees One Lakh only) for each day to the party not in default till the time default continues and/or obligations and/or duties are performed by the defaulting party. Further the defaulting party will not be entitled to receive any documents and/or papers with regard to allotments made in favour of such defaulting party till such time the defaulting party performs his/their obligation in terms of this Award.

(iii) It is agreed by and between the parties that each of the parties undertake and pledge to each other that neither of them will interfere into the day to day business affairs of the Company/ies and/or Firm/s allotted to each other during the transition period from the date of this award to the date of complete hand over of the Company/ies and/or Firm/s to the allottee for smooth conduct of business operations.

(iv) A copy of this Award is being forwarded to Mr. Kamlesh Sogani, Chartered Accountant, to enable him to do all acts, deeds and things required to be done under this Award. Mr. Kamlesh Sogani, if required, will call meeting/s of parties and/or issue directions and/or requests to the parties for the purpose of implementation of this Award. Mr. Kamlesh Sogani will record minutes of such meetings, if required by him at his absolute discretion.

Disputes over the implementation of the award and purported grievances of the appellants against the custodian appointed in terms of the award, i.e. the respondent No. 1, has given rise to the suit and the interlocutory application which has culminated in the order under appeal. The appellants have alleged that the respondent No. 2 and/or the SKJ group have not discharged their obligations in terms of the award, and are therefore not entitled to receive deeds, documents etc. in relation to allotments to the respondent No. 2 and/or the SKJ group in terms of the said award.

Counsel appearing on behalf of the respective parties were heard at length and exhaustive arguments were advanced by them. Written notes of arguments were also filed in Court, which have been taken on record.

Mr. Surojit Nath Mitra, Senior Advocate, appearing on behalf of the appellant submitted that after making and publication of the award dated 3rd January, 2013, the MLJ Group took all steps in implementation and/or compliance of the award. However, the respondent No. 2 and/or the SKJ Group only took steps in terms of the award dated 3rd January, 2013, which were beneficial to them.

Mr. Mitra argued that the respondent No. 2 and/or SKJ Group have failed and neglected to discharge their obligations towards MLJ Group under the award dated 3rd January, 2013. Mr. Mitra further argued that even though respondent No. 2 and/or the SKJ Group had failed and neglected to discharge their obligations to the MLJ Group in terms of the award, yet the respondent No. 1 has released a sum of Rs. 450 lakhs or at least a part thereof to the respondent No. 2 contrary to the award. It is, however, not clear which are the specific obligations which have not been complied with by the respondent No. 2. In any case the obligations of the respondent No. 2 and/or the SKJ group can be enforced by initiation of proceedings for execution of the award.

It is insinuated that the respondent No. 1 is leaning in favour of the respondent No. 2 and/or the SKJ Group and preventing effective implementation of the award by the appellants and/or by the MLJ Group. Mr. Mitra submitted that the respondent No. 2 and/or the SKJ Group had constantly been acting in deliberate breach of the award. The details of the breaches have not been given.

In terms of the award, the respondent No. 1, being the custodian, was to hold all documents including share certificates, share transfer certificates, share transfer instruments, minutes of meetings etc. till individual businesses, properties, companies and/or firms were transferred and the guarantees, if any, given by parties discharged in terms of and in complete implementation of the award.

It was the obligation of the respondent No. 1, as custodian to effect and/or cause to be effected transfer of shares, requisite documents for control of firms and/or businesses and/or properties by the respective parties in discharge of their respective obligations in terms of the award and thereafter hand over the related documents to those entitled to receive the same in terms of the award.

The award itself stipulates the penalty for neglect or failure on the part of any of the parties to perform obligations and duties envisaged in the award.

Mr. Mitra submitted, and rightly, that under the award it was the obligation of the respondent No. 1, as custodian, to take all steps required for implementation of the said award, including issuance of directions on the parties.

It is the obligation of the respondent No. 1 to release all documents, deeds, instruments, books of accounts and documents of properties and assets in respect of the allotments to those entitled to receive them once individual properties, businesses, firms and/or companies were transferred by execution of requisite transfer deeds and documents including share transfer instruments.

It is equally the obligation of the respondent No. 1 to release to the respondent No. 2, upon execution of requisite transfer documents, all related deeds, documents in respect of allotments to the respondent No. 2 and/or the SKJ group, in terms of the award.

It was argued that the appellants had by a letter dated 17th December, 2014 requested the respondent No. 1 being the custodian to ensure compliance by the respondent No. 2 and/or by the SKJ Group of their obligations. Mr. Mitra submitted that inspite of due receipt of the said letter, the respondent No. 1, did not respond to the same.

It, however, appears that by an email sent on 15th April, 2015 the respondent No. 1 directed the parties to the arbitration proceedings to take steps to discharge their respective obligations by 24th April, 2015. It is stated that on receipt of the email the appellant No. 4 contacted the respondent No. 1 over phone and indicated that the respondent No. 2 and/or SKJ Group had obligations to discharge which were serious in nature. The respondent No. 1 assured the appellant that he would do the needful.

On 16th April, 2015 the respondent No. 1 sent an email pointing out some of the obligations that were still to be discharged by the respondent No. 2. It is alleged that the respondent No. 1 completely ignored other obligations of the respondent No. 2, which have, however, not been specified. It appears that further correspondence was exchanged by and between the appellants, the respondent No. 2 and the respondent No. 1.

Disputes that have arisen with regard to the implementation of the award are mainly in relation to possession and occupation of properties. To cite an example, under the award LMJ Overseas Services Ltd. has been allotted to the MLJ group. Before the award was passed, LMJ Overseas Ltd. carried on business from its own office shared with Veer Prabhu Marketing Ltd. (VML) which was under the control of the appellant and/or the MLJ group but has now devolved upon the SKJ group. The property on which the offices of the two companies are situated has become the subject matter of disputes. If the appellants and/or the MLJ group are wrongfully being denied access to and/or use of properties which are in the possession and/or control of the respondent No. 2 and/or the SKJ group, the appellants might secure possession and/or, restoration of possession thereof, by execution of the award.

On or about 11th June, 2015 the respondent No. 1 called upon the appellants to attend his office on 18th June, 2015 to take possession of some vehicles. The respondent No. 1 also informed the appellants that properties allotted to the SKJ group would be made over to the respondent No. 2 and/or SKJ Group.

By an email dated 15th June, 2015 the appellants denied the authority of the respondent No. 1 to make over property to the respondent No. 2 or his group till discharge of all their obligations. It is submitted that the respondent No. 1 is determined to make over documents, deeds, instruments, books and records and assets to the respondent No. 2.

Mr. Mitra argued that since the respondent No. 1 is going to make over all documents, deeds, instruments, books and records, assets etc. to the respondent No. 2 and/or SKJ Group without ensuring due discharge by them of their obligations under the award dated 3rd January, 2013, the appellants have been constrained to file the suit and also an interlocutory application in the suit. The obligations allegedly not discharged have not been specified.

Mr. Mitra argued that reliefs in terms of prayers "a" and "c" of the plaint cannot be granted in execution of the award. The respondents have not been able to show how such relief can be granted in execution of an award. The order under appeal has also not considered this point.

A perusal of the award leaves no manner of doubt that the respondent No. 1, as custodian, is to satisfy himself if the obligations in terms of the award have been discharged. Once the respondent No. 1 is so satisfied, he cannot withhold the documents. The satisfaction of the custodian cannot be questioned by one of the parties to the arbitration agreement, after having accepted the award. The reliefs in terms of Prayers (a) and (c) cannot be granted.

Mr. Mitra argued that by reason of Section 9 of the City Civil Code all suits of the civil nature are maintainable unless barred either by an express provision, or by implication of law. In support of his argument Mr. Mitra cited the judgment of the Supreme Court in Jyoti Limited and Ors. Vs. Bharat J. Patel, & Ors. reported in , 2015 (191) Company Cases 371 (SC). There can be no dispute with the proposition laid down by the Supreme Court in Jyoti Limited (supra).

Mr. Mitra argued that the suit filed by the appellants is not barred by any express provision of law. It was not the case of the respondents that the suit was barred by implication of law. There is no finding that the suit is barred by law. The order under appeal does not refer to any provision of law under which the suit can be held to be barred.

Mr. Mitra argued that a scrutiny of the plaint would reveal that the principal relief claimed by the appellants was against the respondent No. 1. No relief against the respondent No. 1 can be claimed by the plaintiffs in execution or discharge or satisfaction of the award dated 3rd January, 2013.

It is well settled that the parties cannot do indirectly, that which cannot be done directly. Once an award becomes final and binding as in this case, a fresh suit with pleadings craftily drafted, claiming reliefs to indirectly circumvent the award cannot be entertained.

Mr. Mitra also argued that the learned Judge had cited judgments without opportunity to the appellants to distinguish such judgments. Mr. Mitra submitted that the judgment of the Supreme Court in Jai Narain Ram Lundia vs. Kedar Nath Khetan And Others reported in , AIR 1956 (SC) 359 has no application, as the case was for specific performance where there were mutual obligations of the parties. In the instant case, the obligations imposed on MLJ Group and SKJ Group are distinct and segregable.

A judgment is not liable to be set aside or interfered with in appeal because the lower Court may have referred to or relied upon a judgment of the Supreme Court, not cited by the parties, without opportunity to the parties, unless of course the appellate Court finds that the judgment under appeal is erroneous. The proposition of law which emerges from Jai Narain Ram Lundia (supra) is that obligations under a decree may be enforced in proceedings for execution of the decree.

We are unable to agree with the submission that the judgment in Jai Narain Ram Lundia (supra) is not applicable because the suit was for specific performance. The Supreme Court held:-

"19. The relevant part of the decree has already been quoted. It directs that

"against payment or tender by the plaintiffs.... the said defendants..do execute in favour of the plaintiffs proper deed or deeds of transfer of ... five annas share in the Marwari Brothers......"

This is not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they cannot exist without each other. The fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do so, only strengthens the conclusion that that was the meaning and intendment of the language used.

But the principle on which we are founding is not confined to cases of specific performance. It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his own obligations.

The reason is, as we have explained, that to hold otherwise would be to permit an executing Court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits."

The party which seeks enforcement of a decree is bound to discharge his obligations under the decree. The appellants are also bound by the award which is deemed to be a decree just as the respondent No. 2. If the appellants have discharged their obligations under the award, they can enforce compliance by the respondent No. 2 and/or SKJ group of their obligations by initiation of execution proceedings under Section 36 of the 1996 Act.

Mr. Rajiv Kumar Jain, counsel appearing on behalf of the respondent No. 1 submitted that the appeal preferred by the appellant against the judgment and order dated 23rd July, 2015 is not maintainable either in law or on facts.

Mr. Jain also submitted that the appellants have suppressed materials facts and have not approached the Hon''ble Court with clean hands. The respondent No. 1 was not given an opportunity to rely on documents, which have been mischievously suppressed by the appellants and as such no order should be passed in favour of appellants. The appellants have made false and incorrect statements on oath and as such not entitled to any reliefs.

Mr. Jain further submitted that though the Hon''ble Single Judge rightly dismissed the suit, the Hon''ble Judge erred in law by extending the order of injunction restraining the respondent No. 1 from handing over documents to the parties entitled to receive the same in terms of the award dated 3rd January, 2013.

Mr. Jain also submitted that the Hon''ble Singe Judge having come to a finding that the appellants had failed to make out a prima facie case, should not have passed any order in favour of the appellants.

Mr. Jain submitted that there being no challenge to the award dated 3rd January, 2013, the same has become final and enforceable. That being the case, no one can be permitted to travel beyond the award. The award does not contemplate handing over of documents, properties etc. upon satisfaction of all the parties to the arbitration proceedings. Under the award it is the custodian who has to satisfy himself that obligations have been fulfilled by the respective parties. The reliefs as sought for in the suit, should not have been allowed, since the suit has been dismissed.

Mr. Jain further submitted that the suit is also not maintainable as no leave has been obtained under Clause 12 of Letters Patent, though many of the parties to the suit, are outside the jurisdiction of this Hon''ble Court. There are disputes relating to immovable properties admittedly situated outside the jurisdiction of this Hon''ble Court, which were sought to be adjudicated in the suit. The suit was, in effect a suit for land. We are, however, unable to agree that the suit was, in effect, a suit for land, as argued by Mr. Jain. From the reliefs claimed in the suit, it is clear that the suit is not a suit for land. The appellants have not claimed title over or possession of immoveable property or injunction in respect thereof.

Mr. Jain also submitted, and rightly, that on plain reading of the prayers in the plaint, there can be no manner of doubt that every relief claimed circles around award dated 3rd January, 2013, which is unchallenged and has become final. No one can be permitted to seek any relief which is beyond the scope of the award.

Mr. Jain submitted that the appellants deliberately suppressed two vital orders passed by this Hon''ble Court in other proceedings but concerning the arbitration proceedings and/or the award dated 3rd January, 2013, just to steal a march over his client, the respondent No. 1.

By an order dated 2nd December, 2014 passed by the Hon''ble Justice I.P. Mukherji in C.S. No. 399 of 2013, G.A. No. 3491 of 2013, G.A. No. 3385 of 2013 with A.P. No. 1044 of 2013, G.A. No. 3081 of 2013, G.A. No. 3082 of 2013 (Madan Lall Jain & Ors. Vs. Suresh Kumar Jain & Ors.) His Lordship was pleased to observe that unless there is a restraint order passed by a competent Court, the Custodian appointed by the award dated 3rd January, 2013 (respondent No. 1 herein) will hand over the documents in terms of the award to the respective parties immediately.

Following the aforesaid order dated 2nd December, 2014, the Hon''ble Justice Arijit Banerjee passed an Order dated 20th February, 2015 in C.S. No. 233 of 2014, G.A. No. 2098 of 2014 observing that if the Court had directed the Bank to hand over documents to the custodian appointed under the arbitral award, the custodian (respondent No. 1 herein) is hound to hand over the same to the respective parties as per the order dated 2nd December, 2014. Mr. Jain submitted that, in view of the aforesaid two orders no restraint order restraining the respondent No. 1 from handing over documents to the parties entitled to receive the same in terms of the award dated 3rd January, 2013 should have been, or could be passed.

Mr. Jain submitted that the appellants have also suppressed from this Hon''ble Court numerous proceedings filed before this Hon''ble Court including the aforesaid two proceedings.

Mr. Jain further submitted that the plaintiff/appellants are, therefore, not entitled to any reliefs and the appeal deserves to be dismissed in limine with exemplary costs.

Mr. Aniruddha Roy, Advocate, led by Mr. Ajoy Krishna Chatterjee, Senior Advocate, appearing on behalf of the respondent No. 2 argued that from a bare reading of the statements made in the plaint in every paragraph and from the reliefs claimed therein it is evident that the appellants are purportedly seeking to enforce the said award dated 3rd January, 2013.

Mr. Chatterjee argued that Section 36 of the Arbitration and Conciliation Act, 1996, inter alia, provides that an award passed after the promulgation of the said Act is deemed decree and is executable under the provisions of the Code of Civil Procedure, 1908. Therefore, the said award dated 3rd January, 2013 is executable under Order XXI of Code of Civil Procedure and as such the said suit is barred under the provisions of Section 36 of the said Arbitration and Conciliation Act, 1996.

Mr. Chatterjee rightly submitted that if the said award is put into execution by initiating an execution proceeding under the provision of Order XXI of CPC, 1908, the appellant can obtain an order for appointment of receiver to take possession of all the papers, documents and assets lying in the custody of the custodian. The appellant can seek and obtain necessary order of injunction restraining the respondent No. 1 and/or SKJ group from receiving any documents, record, paper from the custody of the custodian. The appellant can obtain order of injunction restraining the respondents from encumbering or creating any third party rights in respect of the assets, properties, records documents etc. Therefore, the appellant has a complete remedy in execution proceedings if the award is put in to execution.

Mr. Chatterjee also submitted that assuming though not admitting that the breaches allegedly summarized under paragraph 23 of the plaint are correct, then to prevent such breach or further breach the appellant can obtain necessary order by way of appointment of receiver and/or injunction and/or any other further direction or directions upon the respondent/defendants for preventing the respondents from committing any alleged breach.

Mr. Chatterjee further submitted and rightly that it is trite law that no separate application was required to be filed by the respondents under Order VII Rule 11 of CPC, 1908 for rejection of plaint. The Court itself can adjudicate and reject the plaint suo moto if it finds from the bare reading of the statements made in the plaint, that the same is barred by law.

Mr. Chatterjee argued that in the instant case, the Learned Interlocutory Judge, upon bare reading of the statements made in the plaint found that the said award passed under the Arbitration and Conciliation Act, 1996 is executable under the provisions of the Order XXI of CPC, 1908 as provided under the statute. Therefore, the Learned Judge had rightly dismissed the civil suit as the same was barred under the provisions of the statute.

Mr. Chatterjee submitted that all the reliefs claimed in the plaint can be granted to the appellant as against the respondents, in properly instituted execution proceedings, for which the custodian who is not a party to the arbitration agreement need not be party.

Mr. Chatterjee further relied upon a judgment of this Hon''ble Court reported in , 29 CWN 633 in support of his argument that any award passed in an arbitration proceeding must be executed by way of an execution proceeding under the Civil Procedure Code, 1908 and no suit is maintainable for the execution thereof.

As observed above, there was an arbitration agreement between the appellants and the respondent No. 2 for settlement of disputes relating to family properties and assets and family business concerns through arbitration.

In pursuance of such agreement, an Arbitral Tribunal of three arbitrators was constituted and the arbitrator made and published his award dated 3rd January, 2013. The award was made after the parties had compromised their differences.

The Arbitration and Conciliation Act 1996, hereinafter referred to as the 1996 Act is a complete code which governs arbitration agreements, arbitral proceedings and arbitral awards.

In this case, the constitution of the Arbitral Tribunal was not objected to by any of the parties. The parties i.e. the appellants and the respondent No. 2 submitted to the jurisdiction of the Arbitral Tribunal.

Under Section 34 of the 1996 Act, recourse to a Court against an arbitral award might only be made by way of an application for setting aside such award in accordance with Sub-section 2 and Sub-section 3. There have been some amendments to the 1996 Act by the Arbitration and Conciliation (Amendment) Act, 2015 which came into force with effect from 23rd October, 2015. The amendments have no application to the proceedings in this case in as much as the arbitral proceedings terminated on 3rd January, 2013 long before the amendments came into force.

Mr. Mitra submitted that the appellants had no grievance against the award which they had accepted. From the tenor of the arguments advanced by Mr. Mitra, it is patently clear that the disputes are with regard to implementation of the award.

In the absence of any application for setting aside the arbitral award, the arbitral award as it stands, has assumed finality. The award can now be enforced under Section 36 of the 1996 Act in the same manner as if it were a decree of the Court. The award is to be enforced under Order XXI of the Code of Civil Procedure.

When the learned Tribunal has appointed the respondent No. 1 as custodian by its award dated 3rd January, 2013 and directed the respondent No. 1 to deliver deeds, instruments, books, records, documents of properties, assets etc. in terms of the said award there can be no question of any perpetual injunction, restraining the respondent No. 1 from handing over possession of documents, deeds, instruments, books and records, documents of properties, assets etc. to the defendant No. 2. There can also be no question of any decree of declaration in a civil suit that the respondent No. 1 is not entitled to deliver documents etc. In execution proceedings, the appellants can enforce the obligations of the respondent No. 2 and/or SKJ Group in terms of the award.

As argued by Mr. Jain, in terms of the award, it is the custodian who is to satisfy himself of fulfillment of obligations by the respective parties. The custodian being satisfied that obligations have been fulfilled by the respondent No. 2 and/or SKJ group the suit is not maintainable.

Mr. Chatterjee rightly argued that no separate application is required to be filed for rejection of a plaint. The Court is entitled to reject the plaint suo moto if it finds from the bare reading of the statements made in the plaint that the plaint is barred by law either expressly or impliedly.

The learned Judge has in effect found that the suit is impliedly barred by law by reason of Section 34 read with Section 36 of the 1996 Act.

For the reasons discussed above, the judgment and order under appeal does not call for interference. The appeal is, therefore, dismissed. All connected applications shall stand disposed of.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.

Sahidullah Munshi, J.—71. I Agree.

LATER

Indira Banerjee, J.—72. There will be a stay of operation of the order for two weeks.

Sahidullah Munshi, J.—73. I Agree.