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Shyam Sunder Swaika Vs. Ganga Vishnu Swaika and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberPartition and Administration Suit No. 191 of 1972
Judge
Reported inAIR1976Cal60
ActsArbitration Act, 1940 - Section 8
AppellantShyam Sunder Swaika
RespondentGanga Vishnu Swaika and ors.
DispositionApplication partly allowed
Cases ReferredPrabhat General Agencies v. Union of India
Excerpt:
- .....to make the present petition with a view to settle the disputes between the parties within a short time by arbitration. it has however been agreed beween the parties that if the arbitration is not completed within the time stipulated the reference to arbitration would stand superseded and the pending application of the plaintiff will come up in the list for disposal by this hon'ble court.' 4. both the lawyers as also the parties were convinced that the matter could be completed within a fortnight from the date of the order with such summary powers as were given to the arbitrators. a provision was also made that the umpire was to dispose of the reference within 15 days from the date of reference before him and he also would have similar summary powers in that regard. paragraph 10 of the.....
Judgment:
ORDER

Ramendra Mohan Datta, J.

1. Disputes and differences having arisen in the family of the Swaikas on or about May 4, 1972 a partition and administration suit being Suit no. 191 of 1972 (Shyam Sunder Swaika v. Ganga Vishnu Swaika and others') was instituted.

On the very same date an interlocutory application for appointment of a receiver was moved before this Court on behalf of the plaintiff. In course of hearing it was felt that there was every likelihood of a protracted litigation whereby the family would suffer irreparable loss and prejudice, if the suit was allowed to be proceeded. There were several businesses involved besides movable and immovable properties.

2. At the intervention of the respective lawyers it was thought that the disputes and differences might be solved by referring the subject-matter of the disputes involved in the suit, to the arbitration of two persons in whom both sides held implicit faith and confidence. The parties agreed and the application was adjourned. Accordingly, by a joint petition made on or about May 31, 1973, the subject-matter of the disputes in this partition and administration suit, were ordered to be referred to the arbitration of P. D. Dabriwal and Raja Ram Bhiwaniwala.

3. The relevant paragraphs of the said joint petition are as follows:--

'8. Your petitioners have agreed to refer the aforesaid disputes to the joint arbitration of Sri Prabhudayal Dabriwal of No. 7-C, Middleton Street, Calcutta and Sri Rajaram Bhiwaniwala of No. 3, Goenka Lane. Calcutta with summary powers to dispose of the reference, and with power to appoint an umpire, within a fortnight from the date of order to be passed herein. It is also agreed that in case of any difference between the said arbitrators the matter shall be referred to the Umpire to be appointed herein. The Umpire shall have summary powers to dispose of the reference within 15 days from the date of reference to him.

9. Your petitioners have further agreed and hereby undertake not to proceed with any pending proceedings in any court or to institute any fresh proceedings in any court in respect of any matter which are the subject-matter of the reference until further orders of Court.

10. The parties have been advised to make the present petition with a view to settle the disputes between the parties within a short time by arbitration. It has however been agreed beween the parties that if the arbitration is not completed within the time stipulated the reference to arbitration would stand superseded and the pending application of the plaintiff will come up in the list for disposal by this Hon'ble Court.'

4. Both the lawyers as also the parties were convinced that the matter could be completed within a fortnight from the date of the order with such summary powers as were given to the arbitrators. A provision was also made that the Umpire was to dispose of the reference within 15 days from the date of reference before him and he also would have similar summary powers in that regard. Paragraph 10 of the joint petition made it clear that the parties intended that the disputes and differences would be settled within a very short time by such arbitration. A provision has also been made therein that in case, for any reason, the arbitration could not be completed within the time stipulated then the reference to arbitration would stand superseded and the pending application of the plaintiff in the suit would come up in the list for disposal.

5. It follows that the parties agreed to stay their hands for a maximum period of about a month or so, so that the arbitration could be completed within that time. The joint arbitrators appointed one S.D. Kanoria as the Umpire in terms of the arbitration agreement between the parties.

6. Curiously enough, it appears that in spite of two extensions made in the month of June and in August, 1973. The ioint arbitrators could not make any effective progress in the matter and on or about August 31, 1973, they having differed, the disputes and differences were referred to the said Umpire. Since then, from time to time various extensions were asked for by and with consent of the parties until it was finally extended by an order of court dated June 7, 1974, by a period of four months from that date. Even then practically nothing was done and the time was allowed to expire.

7. Thereafter on March 27, 1975, Ganga Visnu Swaika the defendant No. 1 died and in June 1975. The present application was made by the defendant No. 4, Bijoy Kumar Swaika. inter alia, for an order that the death of Ganga Vishnu Swaika the defendant No. 1 and of Smt. Badami Devi Swaika the defendant No. 10 be recorded and for bringing in their heirs on record and for necessary amendment of the cause title and body of the plaint and for consequential directions in connection thereto. The petitioner also prayed for revocation of the authority of the said umpire and for appointment of one Girin Saha, F.C.A. or such other person to act as umpire in the place and stead of the said B.D. Kanoria. A further direction was asked for directing the said umpire to make his award within such time as to this court might deem fit and proper.

8. Under those circumstances, it has to be considered whether the petitioner is entitled to any order on this application or not.

9. Regarding prayer (a) of the Summons there could hardly be any objection and, accordingly, an order is made as prayed except that the amendments are to be carried into effect within a fortnight from the date of signing of this order with direction to the department to act on a signed copy of the minutes. In that connection it is further ordered that the writ of summons do issue and be accepted by the Sheriff if lodged with him within a fortnight from the date of its issue, for effecting service thereof on Smt. Shakuntala Chirimar and in that regard also the Sheriff and all parties do act on a signed copy of the minutes.

10. The question before me is whether in the facts and circumstances of this case, the arbitration reference should be allowed to be proceeded with or not by making fresh appointment of the umpire as prayed for.

11. On behalf of the plaintiff Shyam Sundar Swaika. another application has been made in which the plaintiff has prayed, inter alia, for an order that the reference to the arbitration under the order dated May 31, 1973. be superseded, for discharge of the undertaking given by the petitioners by the said joint petition and for direction for hearing of the said application for the appointment of receiver. Both the aforesaid applications have been heard together,

12. I have already referred to the relevant paragraphs from which the intention of the parties could be easily gathered. The parties have undoubtedly huge properties which have to be divided into two lots. There are businesses yielding profits as also properties which are yielding huge income and which are extremely valuable.

13. In this background, the parties named their arbitrators in their arbitration agreement. Those two arbitrators were family relations and the parties had complete faith in them. They had undoubtedly complete faith in the said two arbitrators that the said arbitrators would appoint such an umpire who would be the best person to decide the disputes of the parties with summary powers if such occasion would arise. To my mind, the language of the said paragraphs would, signify that the parties intended that the vacancy, if there would be any, of the arbitrators or of the umpire, as the case may be, would not be supplied. The only person who could act as umpire with such summary powers would be nominated by the chosen arbitrators and if vacancy would be caused in respect of such umpire the same would not be supplied unless agreed to by and between the parties. The language used in the said paragraphs in the said ioint petition also signifies that the reference to arbitration would have to be completed within the stipulated time or within such time as, might be extended by and with the consent of the parties and if the same would not be completed then the reference would come to an end.

14. My attention has been drawn to the case of M/s. Prabhat General Agencies v. Union of India, reported in : [1971]2SCR564 . In that case the disputes and differences were agreed to be referred to the arbitration of the Judicial Commissioner, Himachal Pradesh. The contract was entered into with the Union of India. Disputes having arisen, the appellant requested the Government to refer the dispute to the arbitration of the Judicial Commissioner, Himachal Pradesh. The Government having declined, the appellant made an application under Section 20 of the Arbitration Act. An order was made and disputes were referred to the arbitration of the said Judicial Commissioner, Himachal Pradesh. The Judicial Commissioner declined to act as arbitrator, Thereafter by another application an order was prayed for the appointment of some other person as an arbitrator in the place and stead of the Judicial Commissioner, Himachal Pradesh. The Government opposed such a prayer, The application was dismised. The appellant went up in revision to the Judicial Commissioner Himachal Pradesh. The revision petition was dismissed. The question was whether the interpretation placed by the court below on the relevant provision hi the arbitration agreement was correct The Court took into considera--tion the surrounding circumstances connected with that case and held that the fact itself did not afford any indication that the parties to the agreement intended not to supply the vacancy if the Judicial Commissioner refused to act or was incapable of acting.

15. For all these reasons the appeals were allowed and the orders were set aside and the reference was remitted to the trial court for order to appoint new arbitrator in the place and stead of the Judicial Commissioner. Himachal Pradesh.

16. To my mind, the facts of the case before me are somewhat different from the facts before the Supreme Court. In this case the two arbitrators are named arbitrators. They had chosen such persons and gave them summary powers and such persons and/or their chosen nominee according to the joint petitioners, were the only persons who were competent todecide their family dispute in a summary manner and within a fortnight's time. According to the ioint petitioners such arbitrators and/or umpire only could be able to complete the reference and make their award within a fortnight's time. It was quite clear that any outsider as such arbitrators or umpire might take a much longer time than a fortnight, even though the summary powers would be given to him. There is clear indication in the joint petition that in case the arbitration could not be completed within the stipulated time the same would be put an end to and the suit would be proceeded with.

17. That being the position, to my mind, the petitioner Bejoy Kumar Swaika is not entitled to any order as prayed for in prayers (b) and (c) of the Master's Summons and accordingly, no order is passed on the said two prayers excepting prayer (a) thereof as indicated above. In the facts and circumstances of this case each party will pay and bear his or her own costs. Certified for counsel.


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