SUNDER KUKREJA & ORS. versus MOHAN LAL KUKREJA & ANR.

Citation: [2009] 4 S.C.R. 1163 · Decided: 26-03-2009 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009] 4 S C.R. 1163 
SUNDER KUKREJA & ORS . 
. v. 
MOHAN LAL KUKREJA & ANR. 
Civil Appeal No. 1910/2009 
MARCH 26, 2009 
[ MARKANDEY KAT JU AND V.S. SIRPURKAR, JJ.] 
. Arbitration Act, 1940- s. 20 -Application forappointment 
B 
of arbitrator- Objected to, by opposite party stating arbitration 
agreement did not su/,Jsist in view of retirement deed executed C 
by the applicant - Genuineness of the deed challenged by 
applicant - Forensic report that the deed was not genuine -
Held: The dispute is referable to arbitrator in view of the · 
retirement deed - The dispute between the parties had not 
• 
· become dead - Arbitrator appointed. 
D 
Appellant and respondent (two brothers) _were 
running a business. The rights and obligations thereof "' 
were governed by partnership deed. The disputes 
between the parties were to be resolved by arbitrator as 
per arbitration clause of the deed. 
E 
: Appellant filed application u/s 20 of Arbitration Act, 
1940 seeking direction for appointment of arbitrator. 
Respondent opposed the same stating that there was no 
subsisting arbitration agreement between the parties in 
the light of the retirement deed executed by the appellant. F 
Appellant denied to have executed the retirement deed. 
Single Judge of High Court referred the disputed deed to 
Forensic Science Laboratory {CFSL). Forensic expert 
gave the report that the signature of the app.ellant thereon 
was not genuine; Single Judge of High Court allowed the G 
petition permitting appointment of arbitrator. Division 
Bench of High Court set aside the order of Single Judge 
and remanded the matter to Single Judge for fresh 
1.163 
H 
1164 
SUPREME COURT REPORTS 
[2009] 4 S.C.R. 
A consideration of the question whether the retirement deed 
was never executed. Hence the present appeal. 
Allowing the appeal, the Court 
HELD : Division Bench of High Court was not correct 
B in holding that the dispute should not have been referred 
to the arbitrator in view of the alleged retirement deed. 
The very genuineness of he said retirement deed was 
challenged and in fact the forensic expert gave a report 
that it was not genuine. Single Judge of High Court has 
c recorded prima facie satisfaction that the dispute had not 
become dead. It would be appropriate to leave the 
question regarding the genuineness of the alleged 
retirement deed to be decided by the arbitrator. The sole 
arbitrator is appointed to decide the dispute between the 
0 
parties, including the dispute whether the alleged 
retirement deed was genuine or not. [Paras 17 and 18] 
[1169-F-H; 1170-A-C] 
E 
F 
G 
Mis. Shree Ram Mills Ltd. vs. Mis Utility Premises (P) 
Ltd. JT 2007 (4) SC 501 - relied on. 
Damodar Valley Corporation vs. K.K. Kar AIR 1974 SC 
158 - distinguished. 
Erach FD. Mehta vs. Minoo FD. Mehta AIR 1971 SC 
1653; Mis. S. B.P and Co. vs. Mis. Patel Engineering Ltd. and 
Anr JT 2005 (9) SC 219 - referred to. 
Case Law Reference 
AIR 1971 SC 1653 
referred to 
Para 11 
JT 2005(9) SC 219 
referred to 
Para 13 
JT 2007 (4) SC 501 
relied on 
Para 13 
AIR 1974 SC 158 
distinguished 
Para 14 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1910 
H of 2009 
• 
' 
SUNDER KUKREJA & ORS. V. 
MOHAN LAL KUKREJA & ANR. 
1165 
From the Judgement and Order dated 30.11.2007 of the A 
High Court of Delhi at New Delhi in FAO (OS) No. 469 of 2006. 
Arun Jaitley, Navin Chawla, with him for the Appellants. 
Neela Gokhale, Vijay Kumar, H.P. Singh, (for Dharam Bir 
Raj Vohra), Rajesh Prasad Singh, for the Respondents. 
B 
Th~ Judgement of the Co~rt was delivered by 
MARKANDEY KAT JU, J. 
1. Leave granted. 
2. This appeal by special leave has been filed against the 
impugned judgment dated 30.11.2007 of the Delhi High Court 
FAO(OS) No.469 of 2006. 
c 
3. Heard Shri Arun Jaitley learned counsel for the appellants 
and Ms. Nita Go~hale learned counsel for the respondents. 
D 
4. The dispute in this case is between brothers. The 
1 appellant Sunder Kukreja filed a petition under Section 20 of 
the Arbitration Act, 1940 praying for an appointment of an 
Arbitrator. The parties are real brothers and were carrying on 
E 
business with each other in the name and style of M/s. D.R. 
Kukreja and Company. Their mutual rights and obligations were 
governed by partnership deeds, the last of which was executed 
on 10.7.1984. In terms of Clause 11 of the said deed, disputes 
arising between the parties had to be resolved by way of F 
arbitration before a sole arbitrator to be nominated by the
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