Advocate Satyajit Surendrasinh Powar

Questions Answered by Advocate Satyajit Surendrasinh Powar

Q: Appointment Of Arbitrator......

It is not decided by the parties in arbitration agreement that how many arbitrator will be appointed (1 or 3), so how many arbitrator will be appointed? (1 or 3)

Advocate Satyajit Surendrasinh Powar answered
 Judgments and AwardsSection 12 & 34 - Independence and impartiality of arbitrator2003(1) RAJ 382 (Bom)Saurabh Kalani Vs Tata Finance LtdThere was an allegation that the arbitrator had acted as an advocate for the claimant /Tata Finance or its sister concerns. On examination it was found that the arbitrator had no such affiliation, contract or interest with the claimant and the arbitrator's employment with Tata International Ltd ended over 12 years prior to the reference of this dispute. It was admitted by the arbitrator that he had acted as an advocate for Tata International over 5 years earlier in an unconnected matter which had no bearing on the present dispute. There had been an employment in the distant past with another public company, albeit in the same group, but it was not such as to warrant invocation of circumstances spelt out in Section 12. The arbitrator has also been a member of the Bar for over 15 years ever since he ceased to he in the service of Tata International Ltd.It was held that the allegations against the arbitrator was unsubstantiated and frivolous and there was no justifiable doubt as to his independence or impartiality.Section 12, 5, 16, 34 & 13 - Challenge to appointment of arbitrator2002(1) RAJ 151 (Del)Unipack Industries Vs Subhash Chand JainThe stage and scope of challenge to appointment of arbitrator was discussed in this case.It was held that although an arbitrator is under a duty to disclose in writing the circumstances likely to give doubts as to his independence or impartiality, in case such doubts still arise, the arbitrator can be challenged if circumstances arise as to produce doubts about his independence or impartiality or he does not possess the qualification agreed to between the parties.Section 13 provides the procedure in this regard, subject to what is agreed between the parties. U/s 13(1), if a party intends to challenge the arbitrator, then he may send a written statement giving reasons for challenging the arbitral tribunal, within 15 days of becoming aware of the constitution of the tribunal. The tribunal is competent to look into the controversy however, Section 13 (4) clearly prescribes that the tribunal shall continue with the proceedings. Subsequently when the award is made, the party can challenge the award and it can be the said ground which he had taken at the initial stage.Section 12(3)(b), 4(b) & 11 - Waiver of objections regarding appointment of arbitrator2000(1) RAJ 336 (Bom)Anuptech Equipments Private Ltd Vs Ganpati Co-operative Housing Society LtdThe usual norm is that if the objection to the appointment of an arbitrator, who is not duly qualified, has been waived, then it would not be open to the petitioner to challenge his appointment on the ground that he was not duly qualified. In this case, the court had to examine whether the right to object had been waived by the petitioner.It was held that it is not possible to accept that there has been a waiver on the petitioner's part, who had been constantly reminding the respondent to appoint a person duly qualified. There is nothing on record to show that the petitioner was aware of the arbitrator's qualifications. The tribunal, therefore, as constituted was not in terms of the agreement between the parties. U/s 12(3), the appointment of the arbitrator could have been challenged, if he did not possess the qualifications agreed to by the parties, at the earliest available opportunity possible. The challenge was made within a reasonable time and therefore the court is of the view that there has been no waiver by the petitioner.Section 13(4), (2), (5) & 34 - Constitutional Validity of Section 13(4)2003(4) RAJ 561 (Kar)RK Agarwal Vs BPK JohriThere was a plea that absence of appellate remedy before the award is made by the arbitral tribunal renders the statute arbitrary and opposed to Article 14 of the Constitution.It was held that it is wrong to say that no appeal is provided against the order. An appeal may be filed [vide section 12(5)] wherein the adverse order u/s 13(4) can be challenged. The only difference is that the stage of appeal is postponed. The legislature has, in its wisdom, chosen the appropriate stage to provide the right of appeal. There is no vested right of appeal and as such the demarcating of the stage of appeal cannot be described as an arbitrary exercise of statute making power.The legislature felt that frequent recourse to appellate remedy destroys the essence behind the enactment of the Arbitration Act. As there is no inherent right of appeal except as conferred by statute, it is difficult for the court to hold that it amounts to arbitrariness violating the protective cover of Article 14 of the Constitution.Section 13(5), 16(5), 34 & 37(1)(a) - Constitutional Validity of Section 13(4) & 15(5)2000(4) RAJ 153 (AP)M. Mohan Reddy Vs Union of IndiaThe petitioner was aggrieved that the unsuccessful challenger, either u/s 13(4) or 16(5) have no right to appeal while the person who suffers an order upholding an objection has a right to appeal u/s 37 (1)(a). The question before the court was whether the above sections were violative of the Constitution.It was held that it is not desirable for the arbitrator to proceed with the enquiry before deciding the competence first. Once the arbitrator rules that he has jurisdiction, the aggrieved party subjected to arbitration is not left remediless, but he has to wait and invoke Section 34 for setting aside the award.On the other hand, if the party subjected to arbitration is given a chance to appeal at the threshold, as is given to the party seeking arbitration, the entire proceedings may be stalled and it may take years to resolve the same. The Legislature has aimed to cut short the procedural aspects for providing speedy and efficacious remedy and not providing an appeal against the ruling of the arbitrator upholding his competence to deal with the matter is one such step in aid of faster disposal of the proceedings.Section 13 & 14 - Petition for revocation of arbitrator's authority2002(1) RAJ 281 (Del)Jai Singh Vs Delhi Development AuthorityThe petitioner filed an application for revocation of the arbitrator's authority after participation in the proceedings which were now at the last stage. The arbitrator was designated by post and there was frequent change in the arbitrator due to transfers however, after the appointment of the present arbitrator, there had been no change.It was held that in the present case, the petitioner had participated in the arbitration proceedings, all his claims had been agitated before the arbitrator, records had been perused by the arbitrator in support of the claims, written arguments had been submitted therefore it was too late for the petitioner to approach this court for termination of the authority of the arbitrator. There was no justification or merit in the petitioner's application.Sections 13, 11 &12 - Challenge to appointment of arbitrator1998 (1) RAJ 223 (P&H)Harike Rice Mills Vs State of PunjabThis case explored the basis of the provision for challenge to appointment of an arbitrator.It was held that the Parliament had enacted the 1996 Act on the lines of UNCITRAL Model Law, as approved by the General Assembly of the United Nations subject to slight modifications suiting local conditions in our country. Under the Model Law, a party has been given a right to challenge the appointment of an arbitrator before the arbitrator himself and if the party is unsuccessful, Article 12(3) of the Model Law grants a last resort to the party to approach the Court to challenge the appointment at that stage itself without waiting for the arbitrator to make the award.However, section 13 (4) an (5) make a distinct departure in this regard, with a view to prevent dilatory tactics. For this reason, the Parliament has not allowed the unsuccessful party to challenge the appointment immediately when its challenge had been unsuccessful before the arbitrator. The section requires the party to wait and challenge the same only after the arbitral award has been made.Section 13, 12(3) & 4- Waiver

Q: Case Law Requires Relating Notary Advocate Is Involved In Cheating

Any public notary officer involved in cheating with making fake notary documents???? Is there available any case law???

Advocate Satyajit Surendrasinh Powar answered
SC’s Recent Verdict on Forgery and Making of False DocumentMay 16, 2018Case name: Sheila Sebastian vs R. JawaharajDate of Judgment: May 11, 2018In the case at hand, the complainant alleged that accused no. 1 with the aid of an imposter who by impersonating as Mrs. Doris Victor (the owner of impugned property) created a Power of Attorney (hereinafter ‘PoA’) in his name as if he was her agent. It was further alleged that, using the aforesaid PoA the accused no. 1, attempted to transfer the property of complainant by executing a mortgage deed in favour of accused no. 2.After getting the information about the aforesaid transaction, the owner of the property Mrs. Doris Victor registered FIR against accused for cheating.The Trial Court convicted both accused and accused no. 2 was convicted for offence under Section 465 of Indian Penal Code (punishment for forgery). However, the High Court in appeal acquitted the accused no. 1 and 2 holding that no case was made out under Section 465 of Indian Penal Code or for offence under Section 420 of IPC (cheating and dishonestly inducing delivery of property) being a consequential one, equally cannot be sustained.Aggrieved by the aforesaid judgment of High Court, the appellant in this case approached the Supreme Court. The Appellant contended that the High Court incorrectly interpreted Section 464 of IPC which mandates that anyone who makes a false document is guilty of forgery.Bench’s VerdictThe Supreme Court in the case upheld the High Court’s order and made the following observations:That a close scrutiny of the provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 of IPC substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463. That Section 464 of IPC defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 of Indian Penal Code provides punishment for the commission of the offence of forgery.That in order to sustain a conviction under Section 465 of Indian Penal Code, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 of IPC should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 of Indian Penal Code by solely relying on the ingredients of Section 464 of IPC, as the offence of forgery would remain incomplete.The Supreme Court in the case also quoted Collin J. in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.For Conviction u/Section 465 of Indian Penal Code False Document shall be made with the intention – The Supreme Court made reference to its judgment in the case of Ibrahim and Ors. v. State of Bihar and Anr.[1] wherein it was held that there is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner’s behalf.That to fall under category of `false documents’, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.That when a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of IPCof the Code. If what is executed is not a false document, there is no forgeryThat a charge of forgery cannot be imposed on a person who is not the maker of the same. That making of a document is different than causing it to be made. As Explanation 2 to Section 464 of IPCfurther clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.Forgery and False Document- The definition of “false document” is a part of the definition of “forgery”. Both must be read together. ‘Forgery’ and ‘Fraud’ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.With reference to the facts of the instant case, the Court stated that there was no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’.In view of the aforesaid, the Apex Court inferred Section 464 of the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation.The entire case can be accessed here.[1] (2009) 8 SCC 751

Q: Arbitration And Conciliation Act

Can we apply for appeal against arbitration award?? How? And what is the procedure and time limit for the same?

Advocate Satyajit Surendrasinh Powar answered
However, the challenge to the award can only be made within limitation period of three months from the date of receipt of the award. This period of limitation can be further extended by 30 days in cases where the applicant is able to show sufficient cause for delay in filing petition under Section 34(1) Notwithstanding anything contained in the Arbitration and Conciliation Act, 1996, any dispute arising between licensees shall be referred to the Commission. The Commission may proceed to act as arbitrator or nominate arbitrator or arbitrators to adjudicate and settle such dispute. The practice or procedure to be followed in connection with any such adjudication and settlement shall be such as may be prescribed by regulations.(2) Where the award is made by the arbitrator appointed by the Commission it shall be filed before the Commission and the Commission shall be entitled to pass appropriate orders on the award including orders to,-(a) confirm and enforce the award;(b) set aside or modify the award; or(c) remit the award for reconsideration by the arbitrator.(3) The award given by the Commission under sub-section (1) or the order passed by the Commission under sub-section (2) shall be a decision or order of the Commission and shall be appeal able as provided in this Act.(4) An award made or an order passed by the Commission under sub-section (2) shall be enforceable as if it were a decree of the Civil Court.Appeals against the orders of the Commissions.39. A person aggrieved by any decision or order of the Commission passed under this Act may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Commission to him, on questions of law arising out of such order:Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from the filing the appeal within the said period, allow it to be filed within a further period not exceeding thirty days.

Q: Transfer of property to wife after husband's death

What is the procedure to transfer a property title in the name wife after husbands death?Is there any role played by the landlord?What documents do i need?Property is a general store.Muslim.Thank you.

Advocate Satyajit Surendrasinh Powar answered
Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law – the Hanafi and the Shia. While the Hanafi school recognises only those relatives as heirs whose relation to the deceased is through a male. This includes son's daughter, son's son and father's mother. The Shia school, on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted. The petition claimed that a bare perusal of the law shows that a wife should receive 1/8th of the property of her husband on his death if they have children. In case there are no children borne out of marriage, she is entitled to 1/4th of the property. A daughter will receive half of the share of a son. In stark contrast, the men receive 1/4th of the property of his wife on her death if they have children. In case there are no children borne out of the marriage, he is entitled to half the property.

Q: Father died in January 2005. Daughters right on his property.

My father died on 19 January 2005 ,leaving wife two daughters and a son behind. I'm his youngest daughter 39 years old and still unmarried and live in my father's house with my mother and brother's family. Elder sister was already married and brother also got married in 2006. Now my brother says i dont have any rights on my fathers self aquried property as per supreme court ammendments. Mother is bedridden now.Please clarify this to me with your valuable suggestions.Thank you.

Advocate Satyajit Surendrasinh Powar answered
Under the Hindu succession, a daughter can make a right claim in a coparcener property. Both the ancestral and self-acquired property can be a collective property. ... According to the Hindu Succession (Amendment) Act, 2005, a daughter is equally valid heir as a son's property.Daughters’ Rights In Father’s Property When Father Dies IntestateIf the father dies intestate i.e., without a Will, all legal heirs get an equal right to the property. The property is divided among the Class I heirs first and includes the wife, daughters and sons, among others. A daughter has an equal part in the father’s property as the rest of Class I legal heirs. If the daughter is denied her share, a property partition suit can be filed with the help of a family law