Mukul Mudgal, J.— This appeal challenges the order of the learned Single Judge dated 31st March, 2008 by which the award dated 25th August, 2001 passed by the respondent No. 3 in favour of the predecessor in interest of the appellant herein, and against respondents No. 1 and 2 was set aside. The appellant is the mother of Sh. Ashwini K. Goenka, the original respondent. The objection petition under Section 34 of the Arbitration and Conciliation Act, 1996 had been preferred by respondent No. 1 herein, arraying Sh. Aswini Goenka as respondent No. 1, Smt. Kusum Lata Damani W/o Kanti Bhai Damani as respondent No. 2 and the Arbitrator Sh. D.P Jain, who is the father of Smt. Kusum Lata Damani as respondent No. 3.

2. The case of respondent No. 1 herein, as pleaded in the objection petition has been adequately summarized by the learned Single Judge as follows:—

“2. According to the averments, the petitioner and second respondent are husband and wife, their marriage was solemnized in 1980. It is alleged that in 1982 the petitioner and his wife came into contact with the first respondent (since deceased), as the later was dealing in non-ferrous metals. The parties joined hands in a business relationship. It is claimed that some time thereafter, the petitioner became aware of the first respondent's involvement in criminal cases i.e FIR No. 151/1998 where he was alleged to have committed offences punishable under Sections 409/420 IPC. The petitioner further claims that his wife, under the influence of the first respondent and the third respondent registered various complaints against him.

3. It is alleged that on 8.2.2002, the second respondent registered a First Information Report (FIR) against the Petitioner alleging commission of offences under Section 498A. According to the complaint of the second respondent, the relationship had turned hostile for 3-4 years. It is also alleged that the respondent attempted to extract money from the petitioner. It is further alleged that the first respondent later implicated in the petitioner in a false criminal case and registered an FIR 316/2002. The petitioner was taken into custody. He relies on an order dated 11.10.2002 of this Court in W.P(C) 1026/2002 where the matter was directed to be enquired into by the District and Sessions Judge.

4. It is contended that during the course of police remand, the petitioner was forced to sign 50-60 written papers and 20-25 plain papers which he highlighted in an application to the Court. It is claimed that taking advantage of the said position, the respondents filed an EX. 114/2003 in March 2003 claiming enforcement of the impugned Award said to have to have been made on 25.8.2001

5. It is contended that the petitioner was not aware of the Award said to have been made on 25.8.2001 and became aware of it only on 16.5.2003 when his counsel had detected the pendency of the execution proceedings. The petitioner was thereafter represented on 12.7.2003 in the execution proceeding, when he learnt that an ex-parte award was made saddling him with liabilities to the tune of Rs. 6.5 crores. It is alleged that no copy of the Award was ever sent to him.”

3. The aforesaid award was challenged before the learned Single Judge on account of fraud, and as being based on false and fabricated documents. In para 7, the learned Single Judge summarized the submission of respondent No. 1 as follows:—

“7. The petitioner further relies upon the fact that the impugned Award was supposed to have been made on 25.8.2001 whereas the Execution was filed in March 2003. It is claimed that the real story was that blank signatures were obtained in September 2002 during his police remand. Since the petitioner had filed an application, highlighting the illegality on the part of the police and the respondent, they kept waiting for outcome of the said application; the writ petition was later disposed of on 21.2.2003 as the charge sheet had been filed. It is claimed that the Award surfaced subsequently. At the time of institution of the present proceedings, the petitioner was in jail, having been arrested on 6.9.2002”

4. The case of the appellant herein is culled out from the impugned judgment and the same is as under:—

“9. The respondent contests the allegations about the petitioner's counsel coming to know the existence of the Award on 16.5.2003 and detection of the execution case for the first time on 15.7.2003 It is claimed that the petitioner conceded that he had filed Civil Suit 86/2004 which was pending before the Civil Judge challenging the Award. The same was however, later withdrawn.

10. The respondent No. 1 does not deny that the petitioner was arrested on 6.9.2002 in connection with an FIR lodged by the late Ashwani Kumar Goenka. It is claimed that the petitioner was given documents of the charge sheet dated 5.12.2002 by the Inquiry officer in the Court of Sh. M.C Gupta, Metropolitan Magistrate. They included documents pertaining to the Award. It is also urged that the record of the arbitration was seized from the third respondent on 9.9.2002 and it is part of the judicial record pending before the Metropolitan Magistrate, later summoned by this Court, in the present proceedings.

11. It is claimed that the petition is not supported by an affidavit of Kanti Bhai Damani. The respondents dispute the authority of Hetal Damani, daughter of the petitioner to file the present proceedings. It is also averred that the entire record of the charge sheet in the criminal proceedings were furnished to the petitioner on 5.12.2002 He applied through his counsel on 13.3.2003 for inspection of the record. The record included the seizure memo dated 9.9.2002 along with the original record of the Arbitrator. It is, therefore, alleged that the petitioner had full knowledge of the award and could have taken effective steps to approach the Court in a timely manner.

12. It is also alleged that the petitioner and his wife i.e the second respondent continue to live as husband and wife and that the sureties for grant of bail to the petitioner, at Police Station, Tilak Marg were his wife's brother. It is alleged that if indeed the relationship were strained, as alleged, such surety would not have appeared to have him released.”

5. The pleas of the learned counsel for the respondent No. 1 have been noticed by the learned Single Judge as follows:—

13. …Mr. S.B Upadhyay, learned senior counsel submitted that late Ashwini K. Goenka was Managing Director of Savitri Metal Pvt. Limited. He had criminal antecedents and several cases were pending against him. He developed intimacy with the second respondent i.e the petitioner's wife. On 29.4.1993 an agreement was executed between the second respondent and Savitri Metal Private Limited whereby she was appointed as authorized agent of the company. Counsel further stated that the petitioner's conduct and business were not liked by his wife and Ashwini K. Goenka and they attempted to oust him from their life and business. As a result, the second respondent got the petitioner implicated in a matrimonial dispute and filed FIR 83/2002 alleging offences under Sections 498-A/406 I.P.C It is also claimed that the petitioner left Delhi in October 2001 and settled in Ahmedabad. He filed a writ petition seeking the quashing of the First Information Report (FIR). He was arrested upon a visit to New Delhi on 6.9.2002 and detained in police custody for 14 days. He was later remanded to judicial custody till 31.10.2003 when he was eventually released on bail. Its counsel submitted that during police custody, the petitioner was taken to a room in Qutub Hotel where the late Ashwini Kumar Goenka, respondents 2 and 3 and others tortured him physically on one pretext or the other. Counsel also relied upon an affidavit filed in W.P(C) 1026/2002 alleging that he was forced to sign various papers including documents belonging to arbitration proceedings.

14. Learned counsel submitted that the falsity of the so called arbitration proceedings is evident from no mention of it in the First Information Report or in the charge sheet filed in the criminal proceedings lodged by Ashwini K. Goenka. It is claimed that the complicity of the Ashwini K. Goenka and the second respondent is clear form that that though the second respondent who is the petitioner's wife was named as an accused in the FIR, yet he bequeathed 50% of his property in her favour in a Will. Probate proceedings are pending in this Court in respect of the said Will.

15. Counsel invited a reference to the original award and submitted that its false and fabricated nature is apparent, on a bare glance as some typed sheets are stuck to stamp paper. It was also alleged that the falsity of the Award is further apparent from the fact that the second respondent had named the petitioner as an accused and despite this the petitioner is alleged to have consented to having the matter referred to arbitration by her father i.e the third respondent. It is submitted that the said FIR alleging commission of offences under section 498a i.p.c was lodged on 8.2.2002 It was submitted that even in the FIR there is no mention of the Award although the second respondent alleged that the petitioner had cheated or mis-appropriated funds of Ashwini K. Goenka and had compromised with him to pay money of which he got premature bonds of RBI encashed. Learned counsel submitted that upon an overall conspectus of the sequence of the events it is very clear that there was no arbitration agreement and that no arbitral proceedings were ever held; the so called proceedings were not arbitration proceedings in the eye of the law since no copy of the Award was ever received by the petitioner and he came to know about the same when his counsel met him in jail on 17.7.2003 Learned counsel also submitted that the reliance placed on the postal receipt dated 7-9-2001 ipso facto, establishes nothing as the third respondent's affidavit itself discloses that the award was not disclosed. The petitioner never received it; indeed the late Ashwini Goenka never even asserted any rights in relation to the award, even though it purported to award him the amount of Rs. 6.5 crores with interest at 20% p.a it was only after the petitioner was taken into custody and subjected to torture and also made to sign several sheets of paper, that were misused to create fabricated documents, that the award surfaced, in the form of an execution petition. In fact there was no arbitration proceeding, or award and no such document was sent to the petitioner, ever.”

6. The relevant communication termed as an Arbitration Agreement and relied upon by the appellant is as follows:—

Shri D.P Jain (Arbitrator)

C/o K.D Saga and Co.

D-1, Punjabi Basti,

Nangloi, Delhi

Reg: Arbitration in respect of dispute between Kanti Bhai Damani, Kusum Damani and Ashwini Kr. Goenka.

Respected Sir (Babuji),

This is reference to the above and discussion held with you with me alongwith Kusum and proceeding held on various dates.

In this connection I would like to inform you that Shri Ashwini Kr. Goenka has demanded a sum of more than Rs. 12 Crores but I am not in position to make payment of the entire 12 crores as I have already spent a sum of Rs. 3.5 crores on various heads including Income Tax payment of Rs. 2 crores and rest of the amount is invested by me in the name of your grand children and relatives and different financial institution.

As such I would request you to get the case settled at a sum which is reasonable and which I have indicated to you verbally. Further I request you to kindly grant at test one year's time to me to make the payment.

I hope you will do the needful in the interest of your daughter (Kusum) and Grandchildren.

Thanking you,

Yours truly,

(Kanti Bhai Damani and Kusum Damani) FU-42, Pitampura, Delhi-110085”

7. The entire award sought to be relied upon by the appellant reads as follows:—

“BEFORE SRI D.P JAIN, NO. D-1, Punjabi Basti, Nangloi, New Delhi.

BETWEEN

Sri Kanti Bhai Damani son of Sri P.O Damani and Smt. Kusum Lata Damani w/o Kanti Bhai Damani, Residing at No. FU-42, Pitampura, New Delhi (hereinafter referred to as “the First Party”)

Sh. Ashwini K Goenka residing at No. H -538, RIICO Industrial Area, Bhiwadi (hereafter referred to as “the Second Party”)

AND WHEREAS Kusum Damani is my daughter. Sri Kanti Bhai Damani is my son-in-law are carrying on business jointly and/or severally as brokers and commission agents in aluminium trade having their place of business at No. FU-42, Pitampura, New Delhi and they did the business as broker and commission agent for Ashwini Kumar Goenka and his companies during the last 7 years i.e from 1992-1999.

AND WHEREAS the first party while working as agent/broker of the second party has collected huge amount of more than Rs. 12 Crores by selling of Aluminium and its products to various existing and non-existing firms by setting and collecting payment from buyers of second party, during the period 1995 to 1999 when the second party was suffering from various diseases and sale of metal was totally looked after by the first party. And the first party has kept huge amount with them on account of the second party and the financial position of the second party has deteriorated and he has come to know about the above fact and in this process approximately Rs. 12 crores are lying with the first party.

AND WHEREAS the second party had made various enquiries and investigations and came to know that the first party has kept with them an amount of more than Rs. 12 crores in the manner detailed above. Therefore, the disputes between the parties have arisen and the second party have asked for return of the said money from the first party. To resolve such disputes among the parties I Sri D.P Jain son of Late Sri K.M Jain was appointed as Arbitrator by mutual consent of all the parties to settle all the differences between the parties once for all. The parties hereto agreed that the decision of Sri D.P Jain shall be final and binding on all the parties.

AND WHEREAS I Sri. D.P Jain held various meetings among the parties to adjudicate the disputes and difference between the parties and after discussing the matter at length with both the parties I am giving the following Award in the following manner:—

(a) It has been represented by the First Party that out of the total sum of Rs. 12 Crores he has spent approx. Rs. 3.5 Crores on various heads including Income Tax payment of Rs. 2 Crore and other amount has been deposited and invested in the name of their children in various banks/financial institutions and relatives etc.

(b) The first party has submitted that in full and final settlement they are ready to pay a sum of Rs. 6.5 Crores and asked for six months time to do the same. The Second party has accepted if subject to condition that the entire amount to be paid within six months from the date of award failing with which first party will pay a sum of Rs. 12 Crores.

(c) Although the second party is not agreeable to receive any amount less than Rs. 9 crores, but I, on considering the submissions made by the respective parties and after obtaining the consent of all the parties pass the following Award.

(i) The first party shall refund in aggregate the Sum of Rs. 6.5 Crores to the second party within a period of 6 months from the date of Award after encashing all the RBI Bonds lying with him and selling the properties except the properties purchased before 1994 and/or transferring the properties in the name of the second party as well as recovering the deposits lying with his parties, relations, banks, financial institutions, etc.

(ii) It is recorded that all the ornaments lying with the first party shall remain with them and the second party shall not make any claim against their ornaments.

(iii) In case the first party fails to repay the said money within the aforesaid agreed period of 6 months, the second party shall be entitled to recover the whole amount of money as per law and the first party shall be liable to pay interest also to be calculated @ 20% with yearly rest.

D.P JAIN

Arbitrator”

8. The learned Single Judge in his impugned judgment held as follows:—

(a)….The FIR naming the respondent No. 1, respondent No. 2 and others emanated from the complaint dated 13th May, 2002 by Ashwini K. Goenka. The FIR was eventually lodged on 10th July, 2002, and charge sheet filed on 4th December, 2002. From the perusal of the FIR dated 10th July, 2002, it would appear till the date of the lodging of the charge-sheet in December' 2002, Ashwini K. Goenka was unaware of the existence of the award. The FIR indicated that his version was that the respondent No. 1 promised to return monies to Ashwini Goenka in the presence of the third respondent, Sh. D.P Jain. However, he does not make a mention of or seek to rely upon the award dated 25th August, 2001, which is purported to have been sent to him by respondent No. 3 on 7th September, 2001.

(b) The award came into picture when it was recovered from the premises of the third respondent in connection with the aforesaid FIR.

9. The learned Single Judge dealt with the first issue as to whether the objector-respondent No. 1 was aware of the proceedings and approached the court belatedly. The objections to the award were undoubtedly filed beyond 90 days of the date the award bore, and the learned Single Judge has relied upon the judgment in the case of Union Of India v. Tecco Trichy Engineers & Contractors and Constructions, 2005 (4) SCC 239 to conclude that the date of publication is with reference to the knowledge of the award and has further held that the arbitral award has to be received by the party, upon which the limitation period sets in. It was further held that the delivery of the copy of the award and receipt thereof by each party constitutes an important stage in the arbitral proceedings.

10. The learned Single Judge also took note of the following aspects:—

(a) Mr. Ashwini K. Goenka, even if he was aware of the submission of the dispute to reference and the award, maintained a steady silence about its existence.

(b) Even the wife of the respondent No. 1 had not adverted to the award in her complaint or the First Information Report.

(c) The affidavit by Sh. D.P Jain, Respondent No. 3-Arbitrator, also bears out the fact that the award was not made known to Ashwini K. Goenka, yet from the documents seized from his premises, a letter identical to the one stated to have been written to the respondent No. 1 on 1st September, 1992 along with the postal receipt dated 7th September, 2001 was taken into custody. In case, the postal receipt in respect of the letter allegedly issued to respondent No. 1 were to be given credence, then a similar notice ought to have been received by Sh. Ashwini K. Goenka about the award. Yet he makes no mention of it in his complaint dated 13th May, 2002 or the FIR dated 10th July, 2002.

(d) A perusal of the award clearly showed that it was a piece of paper stuck on stamp paper. Even though the award adverted to proceedings, no other record existed in the record of the criminal proceedings or before the learned Single Judge indicating the conduct of any arbitral proceedings before respondent No. 3. (e) The award was not made known to Sh. Ashwini Goenka as well as the respondent No. 1, and the respondent No. 1 became aware of the award in July' 2003, after Sh. Ashwini K. Goenka, the predecessor the appellant, filed execution proceedings. The petition filed by the respondent No. 1 was, thus, held to be maintainable under Section 34 on applying the judgment in the case of Tecco Trichy Engineeers and Construction (supra).

11. The second issue which the learned Single Judge dealt with was whether the document dated 5th August, 2001 can constitute a valid arbitration agreement.

12. A perusal of the judgments of the Supreme Court in the cases of K.K Modi v. K.N Modi, (1998) 3 SCC 573 and Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 lays down the law that any proceedings, in order to qualify the description of arbitral proceedings must be founded on an agreement which complies with Section 7 and the mere use of the word “arbitrator” or “arbitration agreement” in a clause will not make the document an ‘arbitration agreement’, if it does not otherwise amount to one under Section 7.

13. A perusal of the document dated 5th August, 2001 demonstrates that it is only signed by the respondent No. 1 and the respondent No. 2, his wife, and by the above document they request the third respondent to get the case settled at a reasonable sum indicated to the Arbitrator verbally and seeks an year's time to make the payment.

14. This document, which is not signed by Sh. Ashwini K. Goenka, and indeed there is not even a single document written by Ashwini K. Goenka concurring with the same, or even treating the letter dated 5th August, 2001 as an ‘arbitration agreement’, and when the said letter was not even marked to him, cannot in overview be construed as an ‘arbitration agreement’. There is nothing to suggest that Ashwini K. Goenka participated in the arbitration proceedings by filing a statement of claim/counter statement, or otherwise.

15. The learned counsel for the appellant submitted that the letter dated 5th August, 2001 fell within the definition of ‘arbitration agreement’ under clauses (b) arid (c) of Section 7(4). In so far as sub-clause (b) is concerned, there is no exchange of letters between Ashwini K. Goenka and respondents No. 1 and 2 or any other means of communication which could provide a record of the agreement. Accordingly, sub-section (b) does not apply. In so far as sub-section (c) is concerned, it requires an exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. There is no such factual situation here. All that we have is a unilateral letter attributed to respondents no. 1 and 2, not addressed to Ashwini Goenka much less signed by him. Thus, since the requirement of Section 7 (4) (b) and (c), relied by the appellant are not satisfied, consequently, the letter of 5th August, 2001 could not be construed to be an arbitration agreement.

16. In light of this finding of ours, it would not have been necessary to consider the issue of limitation, but since the learned Single Judge has considered the issue, we are fully satisfied by the reasons given by the learned Single Judge. No error has been pointed out by the learned counsel for the appellant in the reasoning of the learned Single Judge already summarized in this judgment.

17. Furthermore, we find it extremely difficult to believe that an award of Rs. 6.5 crores, which is totally unreasoned, would not be challenged by Ashwini K. Goenka or respondent No. 1. One of the pleas raised by the learned Senior counsel for the appellant, Mr. Jayant Mehta, was that there was no reason to challenge the award as it was by consent. We, therefore, extract the relevant portion of the award where the consent is said to have been recorded, which reads as under:—

“(c) Although the second party is not agreeable to receive any amount less than Rs. 9 crores, but I, on considering the submissions made by the respective parties and after obtaining the consent of all the parties pass the following Award.”

In our view para ‘c’ extracted above from the award itself shows that there is an inherent contradiction therein as in the first portion the Arbitrator records that Ashwini K. Goenka (second party) is not agreeable to receive any amount less than Rs. 9 crores, but nevertheless on considering the submissions of the parties and obtaining consent of the parties, an award of Rs. 6.5 crores is passed. In our view, if Sh. Ashwini Goenka was not agreeable to receive less than Rs. 9 crores, then in the same sentence the recording of the consent of the parties cannot be reconciled and that indeed, is a further reason, apart from the reason recorded by the learned Single Judge why the award invites deep suspicion.

18. We have also noted the fact that no proceedings or any record of arbitration were maintained, even though respondent No. 3 the averred arbitrators was said to be a retired bank officer.

19. Undoubtedly, the nature of the scrutiny of the court in respect of any informal arbitration has to be less stringent. However, taking into account the overall facts of the case discussed eloquently by the learned Single Judge, which disclose that the possibility of the signature on the agreement having been procured in police custody could not be ruled out. Furthermore, the timing of the surfacing of the arbitration agreement and award itself be shrouded in suspicion and, we are, therefore, satisfied with the finding of the learned Single Judge that there was no arbitration agreement nor any arbitration proceedings. The conclusion in impugned judgment are fully justified and do not call for interference and we affirm the findings of the learned Single Judge.

20. The learned Single Judge has noticed correctly, in our view, that the law in respect of interference of an arbitral award by relying upon the judgment in the case of Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003 (5) SCC 705 and recorded the following facets of public policy:—

“(a) Fundamental policy of Indian Law;

(b) The interest of India; or

(c) Justice or morality;

(c) In addition, if it is patently illegal.”

21. The learned Single Judge has indeed correctly applied the subsequent judgments in the cases of Hindustan Zinc Ltd. v. Friends Coal Carbonisation, 2006 (4) SCC 445 and Mc Dermott International Inc v. Burn Standard Co. Ltd., 2006 (11) SCC 181. The learned Single Judge, thereafter concluded that an award made on the basis of an invalid agreement would be a nullity and such an award would be coram non judice. This has been concluded on the basis of the judgments in the cases of Balvant N. Viswamitra and Others v. yadav Sadashiv Mule (Dead) through LRs an Others, (2004) 8 SCC 706 and Dharma Prathishthanam v. Madhok Construction (P) Ltd.., (2005) 9 SCC 686, wherein it has been held that where the appointment of an arbitrator and the reference of a dispute to him is void ab initio, the resulting award would also be liable to be set aside being total incompetent or invalid.

22. Since in the present case, there was no document indicating whether, if any procedure was followed by the Arbitrator, and the pleadings or documents produced were considered, or the proceeding of the dates of hearing were maintained, and the fact that the award has no reasoning, it has been rightly found to be contrary to the provisions of Section 24 and 31(5) of the Act by the learned Single Judge. The casting of a huge liability of Rs. 6.5 crores without reasons with 20% interest per annum is indeed doubly suspicious, particularly, when we find a strange situation that neither Ashwini K. Goenka nor the respondent No. 1 challenges such an award. It is unconceivable that a business person would not challenge an award to the extent of Rs. 6.5 crores with interest @ 20% per annum if he was aware of the same. Accordingly, we fully affirm the judgment of the learned Single Judge as we find no reason advanced before us which should persuade us to take a different view.

23. Having taking into account the fact that the entire case set up by the appellant is based on highly suspicious circumstances and the basis of which is not borne out from the record and the duration of arguments advanced before us, we are of the view that the appeal should be dismissed with costs quantified at Rs. 50,000/-. In case the cost is not paid within four weeks, it shall bear interest of 12% per annum till such payment is made.

24. Accordingly, we dismiss the appeal.