Narinder Saxena Vs. Smt. Meenu Sahni - Court Judgment

Excerpt:

.....has lost his confidence in the impartiality and fairness of both the arbitrators, hence the independent arbitrator was to be appointed rather than initiating the action under section 340 of the code - it was ruled that new arbitrator was to be appointed with consent of both the partiesb) the case dealt with the scope of applicability of section 340 of the criminal procedure code, 1973, in relevance to forgery and fraud - it was found that unless and until it is made that an enquiry has to be done in the forgery and fraud, in the interest of justice as per section 195 of the indian penal code, 1860, no action was required under the provision of section 340 of the code - - 10. since the respondent is nurturing utter lack of confidence in the impartiality and independence of the arbitrators and has rather accused them of conspiracy against the respondent no useful purpose would be served for referring the disputes to them whose telephonic conversation has been tapped by the respondent/applicant to project them in poor light. copy of this order as well as application be forwarded to the learned arbitrator forthwith. the application as well as petition stand disposed of......saxena, the petitioner.6. even if the telephonic conversation may reveal that the notice was not issued on the instruction of the petitioner but the fact remains that the petitioner has not denied that the said notice was not given by him. rather he has referred to service of the notice even in the instant petition. thus the element of forgery and fraud is utterly wanting as both the parties had agreed that if any kind of dispute arises,it shall be referred to the arbitration of mr.sat and mr.ajay khurana. at the most, the respondent can take the plea the since he has lost confidence in the impartiality and fairness of both the arbitrators, and independent arbitrator may be appointed instead of initiating action under section 340 of the cr.p.c.7. it is settled law that until and unless it is expedient in the interest of the justice that an inquiry should be made into any offence of forgery and fraud as prescribed under section 195 of the indian penal code, no action is required under the provisions of section 340 cr.p.c. section 195 of the ipc recognises the following forgeries:'whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that.....

Judgment:

ORDER

J.D. Kapoor,J.

1. On the one hand, the petitioner has sought the appointment of an Arbitrator for settling the dispute while the respondent has through application under Section 340 of Criminal Procedure Code called for action against the petitioner for forgery and fraud committed upon the Court.

2. As per the agreement to sell, the balance of consideration amount of Rs.64 lakhs was to be received by the respondent on the completion of the transaction and the full and final payment was to be received by the respondent on or before 31.10.1997. It is alleged that even before the date of final payment to be received on 31.12.1997, Shri B.L.Chawla purporting to acting on 18.12.1997 with a view to avoid and wriggle out of the transaction by giving option either to complete the sale and receive the balance amount of consideration or refund the amount of advance received by the applicant as per terms conditions of the agreement.

3. However it is contended that the aforesaid notice was not only pre-mature but was a deliberate attempt to avoid the transaction with a view to raise dispute in future and avoid payment for the balance amount in the manner as agreed to between the parties i.e. out of Rs.64 lakhs, Rs.45 lakhs was to be paid before the final payment and remaining Rs.19 lakhs on or before 31.12.1997.

4. The substance of the alleged forgery and fraud has been culled out in the telephonic conversation between the husband of the respondent who is a Doctor and Mr. Sat Pal who is one of the Arbitrators and property broker also. According to the telephonic conversation, said notice was given at the behest of Mr.Sat pal and Shri Khurana another property dealer, though there is no transcription of the telephonic conversation of Mr.Khurana. There is only reference of Mr.Khurana in the conversation of Shri Sat Pal and the Doctor.

5. What has been brought out in the telephonic conversation is, according to the applicant/respondent, that the conspiracy was hatched for serving notice upon the respondent/applicant on the purported instructions of the petitioner Mr.Narender Saxena whereas no such instruction was ever obtained by the counsel from the petitioner. Another property dealer Shri Brijesh Bansal also got involved during the telephonic conversation with the respondent/applicant who admitted that the notice was got issued by Mr.Khurana and not by Mr.Narender saxena, the petitioner.

6. Even if the telephonic conversation may reveal that the notice was not issued on the instruction of the petitioner but the fact remains that the petitioner has not denied that the said notice was not given by him. Rather he has referred to service of the notice even in the instant petition. Thus the element of forgery and fraud is utterly wanting as both the parties had agreed that if any kind of dispute arises,it shall be referred to the arbitration of Mr.Sat and Mr.Ajay Khurana. At the most, the respondent can take the plea the since he has lost confidence in the impartiality and fairness of both the Arbitrators, and independent Arbitrator may be appointed instead of initiating action under Section 340 of the CR.P.C.

7. It is settled law that until and unless it is expedient in the interest of the justice that an inquiry should be made into any offence of forgery and fraud as prescribed under Section 195 of the Indian Penal code, no action is required under the provisions of Section 340 CR.P.C. Section 195 of the IPC recognises the following forgeries:

'Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is not capital, but punishable with or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.'

8. None of the revelations in the telephonic transcript makes out the offence punishable under Section 195 of the IPC.

9. It appears that main bone of contention is the down slide in the price of the properties. The petitioner is no more ready to purchase the property where as the respondent/applicant has no takers. What is to be decided by the Arbitrator is the dispute between the parties as to who is guilty of non-performance of his part of the obligation.

10. Since the respondent is nurturing utter lack of confidence in the impartiality and independence of the Arbitrators and has rather accused them of conspiracy against the respondent no useful purpose would be served for referring the disputes to them whose telephonic conversation has been tapped by the respondent/applicant to project them in poor light.

11. However learned counsel for the parties have fairly conceded to the appointment of Mr.Justice A.K.Srivastava, retired Judge of Delhi High Court as Arbitrator. Learned Arbitrator shall enter into reference as expeditiously as possible and decide the disputes referred in the application. Copy of this order as well as application be forwarded to the Learned Arbitrator forthwith. Learned Arbitrator shall fix his own fees subject to maximum amount of Rs.50,000/- shared by both the parties.

The application as well as petition stand disposed of.

dusty.