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Smt. Shovana Bhowmick Vs. Birendra Kumar Bhowmick - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3357 of 1966
Judge
Reported inAIR1969Cal167
ActsArbitration Act, 1940 - Sections 2 and 3
AppellantSmt. Shovana Bhowmick
RespondentBirendra Kumar Bhowmick
Appellant AdvocateA.C. Bhabra and ;M.L. Tambi, Advs.
Respondent AdvocateSyamacharan Mitter and ;Syamaprosanna Roychowdhury, Advs.
Cases Referred and Banarsi Das v. Cane Commissioner. Uttar Pradesh
Excerpt:
- .....will clearly provided for reference to arbitration in cases of disputes, like the present, between sovana and birendra. that provision was in writing. it was accepted by the parties (sovana and birendra) by consenting to the probate of the said will and adopting the same without reservation. birendra's consent was given by inter alia his written application for probate and his ultimate acceptance of the same and acting upon it; sovana's by her agreeing to the grant of the said probate and by her acceptance of the same by inter alia her written correspondence and in her letters in writing, preceding the reference to arbitration. it was thus clearly a case of agreement in writing for reference to arbitration, at least on the footing that the term agreed upon or the term of the agreement in.....
Judgment:

P.N. Mookerjee, J.

1. This Rule arises out of a suit on an arbitrator's award. The award was filed by the arbitrators in Court under Section 14 of the Indian Arbitration Act and, eventually, a decree was made by the learned trial Judge on the said award under the relevant Section 17 of the Act. This decision, however, was eventually reversed by the learned Additional District Judge on appeal and the petitioner's suit was dismissed, primarily, upon the view that the award was invalid, as there was no proper reference to arbitration under the law, there not being, in the circumstances, the requisite agreement in writing for reference to arbitration.

2. For appreciating the real position, a reference to the material facts will be necessary. Those material facts lie within a short compass and may be set out as follows;

3. One Haripada Bhowmick, who was the predecessor-in-interest of the parties and to whom the disputed properties belonged, executed a Will on May 25, 1953. The relevant provision in the said Will, so far as we are concerned, is as follows:-

'I hope that after my life time my son Birendra Kumar Bhowmick will live in peace and amity with my daughter-in-law Sovana Bhowmick, widow of my deceased son Prafulla Kumar Bhowmick, and that he will show her greatest consideration and tender her all possible assistance in her difficulties, if any. I also hope that there will be no cause of misunderstanding between them. If, however, unfortunately, for any reason, they are unable to live together in peace and harmony, then I direct, by this Will, that Sovana Bhowmick will have the right of maintenance, as Hindu widow, out of the income of my properties, and residence, during her life time, in one of the rooms of my two houses, commensurate with her status and dignity as the widow of my late son Prafulla Kumar Bhowmick, so long as no necessity arises to let out or otherwise to dispose of the houses. If it ever becomes absolutely necessary to let out or dispose of the houses, suitable accommodation should be arranged, by my son Birendra Kumar Bhowmick, for her, out of the income of my properties. All questions regarding the income to be set apart for her maintenance and the room she should be allowed to occupy will be settled by arbitration by my 5 sons-in-law viz., (1) Prafulla Chandra Mukherjee of the Indian Credit Department, (2) Dr. Prafulla Kumar Banerjee, M.B. D.Ph., (3) Sri Ram Banian Chatterjee, Textile Engineer, (4) Dr. Rabindra Nath Mukherjee, M.B. and (5) Sri Himangshu Kumar Banerjee, Advocate, High Court, Patna, and those, among them, who will be alive at the time, and their majority verdict will be binding on Birendra Kumar Bhowmick and Sovana Bhowmick. Any other dispute that may arise between them will be settled by arbitration as above,'

4. Haripada Bhowmick died on April 28, 1959. On April 7, 1960, Birendra applied for probate of the above Will. On September 1, 1960, the probate appears to have been granted on consent. On November 7, 1962, Sovana Bhowmick made a reference for her monthly maintenance and for provision for her residence. The arbitrators, however, for reasons beyond their control, could not take any effective steps in the matter until May 7, 1964, when, on receipt of a further complaint from Sovana on or about May 6, 1964, they gave the effective notice, received by Birendra on or about May 7, 1964, fixing June 27, 1964, for hearing. On June 27, 1964, the arbitrators met at a meeting and, on August 23, 19G4, the disputed award was made. On the same day, the arbitrators wrote to the parties, informing them that they had met and signed their award on August 23, 1964. A copy of the award appears to have been sent to Birendra on September 12, 1964, On September 15, 1964, Sovana applied for the filing of the award and for the passing of a decree thereon. On October 3, 1964, Birendra filed his petition of objection. On November 11, 1964, the award was sent for registration and, on December 11, 1964, the award was registered. Thereafter, there were certain interlocutory proceedings, in which, by consent, Birendra was appointed Receiver in respect of one of the properties with certain directions and eventually, on March 16, 1966, the learned Subordinate Judge, Second Court, Alipore, before whom the above proceeding was pending, directed the award to be filed and a decree to be made on the same.

5. Birendra appealed from the above decree of the learned Subordinate Judge and this appeal was, eventually, allowed by the learned Additional District Judge, Fourth Court, Alipore, on August 23, 1966, and, thereafter, the present Rule was obtained by Sovana from this Court on October, 3, 1966, against the aforesaid decision of the learned Additional District Judge.

6. The principal points, which arise for consideration in this Rule, are three in number. Firstly, whether the learned Additional District Judge was right in taking the view that, in the instant case, there was not the requisite agreement in writing for the validity of the award in question and, in refusing, upon that view, to affirm the decree, passed by the learned Subordinate Judge. The second question, which would arise, would be whether the arbitrators exceed their jurisdiction in making the award beyond the time, contemplated for the same (vide, in this connection, Schedule I, Para 3 of the Arbitration Act, read with Section 3); or, in other words, whether the making of the disputed award would be hit by the law of limitation. The third point would be whether the arbitrators' award suffers from an error, apparent on the face of the records, in so far as they allotted more than one room to Sovana, and gave direction for the letting out, either by Birendra or by Sovana, of a part of the disputed properties for securing her (Sovana's) maintenance, which, according to Birendra, would be in excess of the provision under the Will of Haripada and contrary to the said Will.

7. The point of limitation has been overruled by both the Courts below. They have, taken the view, that the arbitrators entered on the reference, only on June 27, 1964, and the award was actually made on August 23, 1964. Obviously, if the time be counted from the above date June 27, 1964, the making of the award on August 23, 1964, would be well within time.

8. The opposite party Birendra, however, contended that the arbitrators must be held to have entered on the reference long ago, that is, from the moment, they accepted their appointment as arbitrators and indicated their desire to decide the disputes between the parties, if any. We do not accept this submission.

9. It is clear from what we have stated above that no effective step could be taken by the arbitrators in the matter of arbitration before, at any rate, May 7, 1964, when the final or effective notice was issued by them, and, accordingly, limitation, so far as the making of the disputed award is concerned, could not, in any event, start prior to that date, which was well within four months from the date of the said award, namely, August 23, 1964. No point of limitation, therefore, does really arise in the instant case.

10. In support of our above view, it fs not necessary to go to the extreme on the above point, as envisaged in Baker v. Stephens, (1867) 2 QB 523, Sardar Mal Hardat Rai v. Sheo Baksh Rai Sri Narain, ILR 44 All 432=(AIR 1922 All 106), and Abdul Majid v. Ch. Bahawal Baksh, AIR 1950 Lah 174--See also Nanda Kishore Goswami v. Bally Co-operative Credit Society Ltd. : AIR1943Cal255 . It is enough for the purpose to refer to Soneylal Thakur v. Lachhminarain Thakur : AIR1957Pat395 and Ramsahai Sheduram v. Harishchandra Dulichandji : AIR1963MP143 , which support the said line of approach and, further, emphasise inter alia that the relevant point of time, namely, when the arbitrators enter upon the reference, is a question of fact, depending on the facts of the particular case before the Court. See also Dr. Babubhai Vanmalidas Mehta v. Prabodh Pranshankar Joshi : AIR1956Bom146 .

11. Our above view will not also be opposed to the apparently contrary decisions, reported in Iossifoglu v. Coumantaros, (1941) 1 KB 396, and Bajranglal Laduram v. Ganesh Commercial Co. Ltd. : AIR1951Cal78 , as explained in the above two cases, and the said two apparently contrary decisions would also be distinguishable on their own facts and observations.

12. We would, accordingly, agree with the two Courts below in overruling the opposite party's objection on the point and reject his plea of limitation.

13. More debatable, of course, is the first question, namely, whether there was the requisite agreement in writing in the instant case for the validity of the disputed award. That there was a provision in writing in the Will of Haripada for a reference to arbitration is admitted. Admittedly, also, Birendra applied for probate of the said Will, which may very well be taken as his consent to accept the relevant arbitration clause. That Sovana appeared in the said proceeding and, eventually, probate was granted by consent is also an admitted fact. In the above circumstances, unless the Court be too technical or hyper-technical on this particular aspect and, if the substance of the matter be looked into, the requisite agreement in writing must be found in favour of the petitioner.

14. The above Will clearly provided for reference to arbitration in cases of disputes, like the present, between Sovana and Birendra. That provision was in writing. It was accepted by the parties (Sovana and Birendra) by consenting to the probate of the said Will and adopting the same without reservation. Birendra's consent was given by inter alia his written application for probate and his ultimate acceptance of the same and acting upon it; Sovana's by her agreeing to the grant of the said probate and by her acceptance of the same by inter alia her written correspondence and in her letters in writing, preceding the reference to arbitration. It was thus clearly a case of agreement in writing for reference to arbitration, at least on the footing that the term agreed upon or the term of the agreement in question was in writing. We do not think anything more was necessary for the purpose of an agreement in writing to provide the basis of a valid reference to arbitration, although, in the instant case, there was also acceptance of the said term or agreement in writing, as sufficiently indicated above.

15. That, for an agreement in writing for reference to arbitration, it is enough if the term or terms, agreed upon, be in writing is now well settled. That, for the above purpose, signature or signatures of the parties are not necessary is also clear on the authorities, including the decision of this Court, reported in Bijoy Ballav Kundu v. Tapati Ranjan Kundu. : AIR1965Cal628 , on which strong reliance was placed on behalf of the contesting opposite party (Vide, in this connection, Radha Kanta Das v. Baerlieu Brothers Ltd. : AIR1929Cal97 , Chandi Prasad Misir v. Balaji Misir : AIR1931All136 , Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji : [1955]2SCR857 and Banarsi Das v. Cane Commissioner. Uttar Pradesh : AIR1963SC1417 . It is true that, in : AIR1965Cal628 (supra), this Court (Sinha, J., as he then was and R. N. Dutt, J.) did not accept the provision for reference to arbitration, contained in a Trust Deed, accepted by all the parties, as sufficient for the purpose, but that was done on reasons, which are wholly inapplicable here. The said case, therefore. Is clearly distinguishable, although we must make it clear, with all respect to the learned Judges (Sinha, J., as he then was, and R. N. Dutt, J.), that their ultimate conclusion in that case that the Trust Deed provision there did not constitute an agreement in writing for reference to arbitration would not be acceptable to us. That provision, which provided for reference to arbitration, was in writing in the Trust Deed in question and it was accepted by all the parties concerned, and, in the circumstances, it was, in our opinion, an agreement in writing for reference to arbitration, sufficiently for purposes of the relevant law on the point (Section 2(e) of the Indian Arbitration Act). As, however, as already said, the said decision is distinguishable, we need not pursue this matter further, and we would end this part of our discussion by quoting the very useful and pertinent observations of the Supreme Court on the point in : [1955]2SCR857 , (supra), at p. 815, which laid down the law on the subject in the following terms:

'It is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and that it is sufficient if the terms are reduced into writing and the agreement of the parties thereto is established.'

(See also : AIR1963SC1417 (supra), at p. 1425, where the above observations are quoted with approval).

16. We would only add that the above authorities put the matter beyond all possible doubt and no clear words and no reference to any other source or authority would be necessary to conclude the point.

17. In the above context and in the light of what has been set out above, the relevant clause in Haripada's Will, in the instant case, providing, in writing, for reference to arbitration, having been accepted by both parties, -- and accepted as binding on them, -- would, in our opinion, constitute the requisite agreement in writing for reference to arbitration. We conclude accordingly and hold in favour of the petitioner on the point.

18. We would, in the above view, hold that there was, in the instant case, the requisite agreement in writing for the validity of the disputed award and the view of the learned Additional District Judge to the contrary cannot be supported.

19. Prima facie, therefore, the petitioner would be entitled to have a decree on the said award, as made by the learned Subordinate Judge, but, here , a further question arises. As quoted above, the relevant provision in Haripada's Will expressly stated that Sovana will have - 'the right of residence, during her lifetime, in one of the rooms of my two houses, commensurate with her status and dignity as the widow of my late son Prafulla Kumar Bhowmick.' In the disputed award, the arbitrators have made an allotment in her favour, which has given her two rooms and also another half room with other appurtenances and amenities, necessary for enjoyment of the same. This appears to have been done, apparently, without full appreciation of the above provision in the Will. The predominant intention of the testator was, no doubt, to provide residence or accommodation for his daughter-in-law Sovana, but at the same time, he also made a categorical provision that such residence should be in 'one of the rooms of my two houses', followed, of course, by the words 'commensurate with her status and dignity as the widow of my late son Prafulla Kumar Bhowmick.' It is a question of some nicety and some importance, whether both the above expressions can be given full effect; if not, which of the said two expressions would have preference or predominance, when both cannot be applied in full. In other words, if one room be found sufficient for her residence, commensurate with her status and dignity, as above, and if that be practicable, whether the arbitrators would have jurisdiction to make any provision beyond the same, except, of course, provisions for usual amenities and appurtenances, necessary for its enjoyment; and, if circumstances do not permit that allotment, what will be the scope and extent of the arbitrators' powers in the matter.

20. It is true that the learned Subordinate Judge held in favour of the petitioner on the point upon the construction of the above provision in the Will but he appears to have been too much influenced by the expression 'commensurate with her status and dignity' in dealing with the matter. In the circumstances, we feel that this aspect of the matter should be reconsidered by the arbitrators and, if it is found by them that provision may be made, in accordance with the wishes of the testator, for the accommodation of the petitioner for her residence In one of the rooms of his two houses commensurate with her status and dignity, as above, such provision should be made by them in the award on the point. If, however, that be not possible from the practical point of view, they will give effect to the testator's predominant intention, which, as it appears to us, was to provide suitable accommodation for residence of the daughter-in-law, namely, the petitioner.

21. The arbitrators would also reconsider whether they had power to direct letting out, either by Birendra or by Sovana, of a portion of the testator's properties, for securing her (Sovana's) maintenance.

22. The above aspects, suffer, on the face of the records, from want of full and proper consideration on the part of the arbitrators and they should reconsider the same and re-examine the matter.

23. In the above view, we would make this Rule absolute, set aside the order of the learned Additional District Judge and also of the learned Subordinate Judge and send the matter back to the learned Subordinate Judge for remitting the disputed award to the arbitrators concerned for fresh and further consideration in the light of the observations, made in this judgment The learned Subordinate Judge will, of course, fix a suitable time limit in accordance with law, within which the said arbitrators will submit their final award after further consideration as indicated hereinbefore.

24. There will be no order for costs in this Rule.

A.K. Dutt, J.

25. I agree.


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