Gauhati High Court
Mrs. Rabia Ahmed vs Pranab Kumar Sarma And Anr on 17 March, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
I.A.(C) NO. 26/2017
(In C.R.P. No. 380/16)
Mrs. Rabia Ahmed ... Applicant
Versus
1. Sri Pranab Kumar Sharma ... Opp. Party
2. Landmark Establishment Pvt. Ltd. ... Proforma Opp. Party
For the applicant : Mr. SK Medhi,
Mr. J. Das,
Mr. A. Das,
Mr. S. Dutta, Advs.
For the respondents : Mr. SP Roy,
Mr. RPN Singh, Mr. A. Talukdar, Mr. TR Roy, Ms. NK Poddar, Advs.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of hearing : 28-02-2017
Date of Judgment : 17-03-2017
JUDGMENT & ORDER(CAV)
Heard Mr. S.K. Medhi, the learned Counsel for the applicant and, Mr. S.P. Roy, the learned counsel for the Principal Opp. Party No.1 (hereinafter referred to as "OP-1" for short). Issuance of notice to the Proforma Opp. Party No.2 is dispensed with as he would not and/or cannot be an aggrieved party thereby.
IA No.26/2017 in CRP No.380/16 Page 1 of 82) By filing the connected application under Article 227 of the Constitution of India, the OP-1 has challenged the order dated 29.09.2016 passed by the Arbitral Tribunal consisting of three arbitrators who were appointed to arbitrate the dispute between the parties.
3) While issuing notice in the connected CRP No. 380/16, this Court by an ex parte interim order dated 03.10.2016, suspended the further proceeding of Arbitral Proceeding No. 4/2012, pending before the Arbitral Tribunal. The present application has been filed by the Applicant, who is arrayed as Respondent No.1 in the said revision, with the prayer for vacating/ modifying/ altering the said order dated 03.10.2016.
4) The gist of dispute amongst the parties is that the applicant and the Opp. Party No.1 in the name of his sole proprietorship firm under the name and style of M/s. Landmark, had entered into an Memorandum of Agreement dated 3rd November, 2000 by virtue of which the applicant had given her land measuring 2 katha- 0 lechas, covered by Dag No. 56 (New), 169 (Old) of K.P. Patta No. 310 (New), 575 (Old) of Village- Sahar Guwahati, Mouza- Guwahati, situated at Machkhowa, M.G. Road, Guwahati for development and for construction of multistoried building on the terms and conditions as contained therein. It was disclosed in the said agreement that the Opp. Party No.1 had already entered into separate agreements with adjacent land-owners for development of their land and for construction of multistoried building thereon. Under the said agreement, the applicant became entitled to 25% of the built-up area permitted by the authorities corresponding to the land described in schedule appended to the said agreement as well as other amenities like car parking, finished flats/ apartments. It was also provided that the copy of the IA No.26/2017 in CRP No.380/16 Page 2 of 8 drawing as approved by the concerned authority would be handed over to the applicant. The said agreement contained arbitration clause.
5) In course of time, disputes and differences arise between the parties to the said agreement and, as such, the applicant herein approached this court under section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of Arbitral Tribunal. In the said application, the OP-1 was arrayed as the Respondent No.2 by referring him to be the proprietor of erstwhile M/s. Landmark and the Opp. Party No.2 herein was arrayed as the Respondent No.1. As agreed to by the learned counsel for both the sides, this court by order dated 15.05.2009 passed in Arb. Petn. No. 23/2008, appointed Mr. J.N. Khatoniar and Mr. Bhupen Sarma as the arbitrators, further providing that the said arbitrators in turn would name a third Arbitrator and proceed to resolve the dispute arising out of the above mentioned agreement between the parties. In course of time, for various reasons, the arbitrators appointed by this court declined to be the arbitrators and, as such, this court by order dated 18.05.2012 passed in Arb. Petn. No. 19/2010 appointed Sri Ranjan Kumar Bharali and Sri Dipankar Medhi as the arbitrators, by allowing them to select a third arbitrator as Umpire.
6) On 01.11.2012, the applicant filed her statement of claims and on 11.03.2013, the OP-1 had filed his written statement as well as an application for framing preliminary issue on maintainability of the proceeding on the ground of limitation. The Proforma Opp. Party No.2 herein, i.e., Landmark Establishment Pvt. Ltd., had filed their written statement separately, taking various pleas as stated therein.
7) The learned Arbitral Tribunal consisting of three Arbitrators including the Presiding Arbitrator, by an order dated 27.07.2013 recorded as IA No.26/2017 in CRP No.380/16 Page 3 of 8 follows- "... It is however, agreed that the issue of limitation may be framed along with other issues and may be taken up for consideration after the parties adduce evidence...."
8) After hearing had commenced in said proceeding, by an order dated 15.11.2014, the learned Arbitral Tribunal by invoking the provisions of Section 26 of the Arbitration and Conciliation Act, 1926 appointed a Registered Technical Person (hereinafter referred to as "RTP" for short) approved by GMDA to physically survey and verify the buildings of the project to find out the actual built up area of the project. Accordingly, one company namely, Exparto Geo Technical Consultant and Research Pvt. Ltd., a RTP approved by the Guwahati Metropolitan Development Authority was appointed as RTP. The parties were directed to approach the said RTP and furnish all relevant information and documents without delay.
9) The herein before referred order dated 27.07.2013 and 15.11.2014, passed by the learned Arbitral Tribunal was challenged by the OP-1 by filing CRP No. 438/2014. The said revision was disposed of by this Court by judgment and order dated 17.12.2015. The operative part of the said order is quoted below:
"After hearing the learned counsel for the parties, it appears that the basic point of fact at which the parties are in variance is the actual built up area over 2 kathas of land belonging to the opposite party No. 1 herein.
Under such circumstances, decisions taken by the Arbitral Tribunal for causing survey cannot be said to be untenable. The only objection of the petitioner being in regard to payment of fees and the same having been settled as aforesaid, this revision petition does not required any further adjudication. The parties shall co-operate with the RTP for completion of the survey work IA No.26/2017 in CRP No.380/16 Page 4 of 8 as ordered by the Arbitral Tribunal and thereafter the parties shall be at liberty to argue their respective case and the learned Arbitral shall consider and decide all the relevant points that may be raised by the respective parties. The same shall be done as expeditiously as possible preferably within a period of six months from today.
The revisions petition stands disposed of"
10) After re-commencement of the hearing before the learned Arbitral Tribunal, in course of time, some order was passed on 11.09.2016. A copy of the said order dated 11.09.2016 was sent by the learned Arbitral Tribunal to the OP-1 by registered post with acknowledgement due on 14.09.2016. Though acknowledgement card was not received in return, as per the postal confirmation report, the said order was duly delivered to the address of the OP- 1 on 19.09.2016. The same is recorded in the order dated 29.09.2016 passed by the learned Arbitral Tribunal. It is further mentioned therein that on being enquired by Sri Dipankar Medhi, one of the learned Arbitrators, the OP-1 had informed him that he did not receive any communication from the Tribunal. The learned Tribunal has recorded that it was not inclined to accept this stand in view of what had transpired from the postal records. As per the said order, the RTP earlier appointed by letter dated 25.04.2016, had expressed their inability to carry out the work and suggested to approach one M/s. Precision Surveying Company, a Guwahati Metropolitan Development Authority approved RTP, for the job. As per the said order, the applicant had informed the Tribunal that she had already contracted the said RTP, who had expressed their willingness to do the job if appointed by the Tribunal. Accordingly, the learned Arbitral Tribunal appointed the said firm as RTP under section 26 of the Arbitration and Conciliation Act, 1996 in terms of the said order, requiring the submission of report on or before 25.11.2016. The next date of sitting was fixed on IA No.26/2017 in CRP No.380/16 Page 5 of 8 03.12.2016. It is the aforesaid order dated 19.09.2016, which is in challenge in the present revision.
11) While, the learned counsel for the applicant has made a short submission to projected that by the suspension of the arbitral proceeding, the applicant is the only sufferer as she had given her prime land to the OP-1 for construction of a building, and still after 16 years now, she has not been able to get her due share of constructed area. The learned counsel for the applicant had read the order passed for constitution of Arbitral Tribunal as well as the order dated 17.12.2015 passed by this Court in CRP 438/14. However, the learned counsel for the OP-1 had left no stone unturned and he had argued at great length on the entire subject matter, which is being adjudicated by the Arbitral Tribunal. The learned counsel projected that although the land contributed by the applicant was 2 kathas, but the RTP was given the power to measure the entire construction. This Court is restraining itself from making any comment on the said matter because this Court is of the opinion that if any comment is passed, it would amount to touching the merit of the matter in dispute and pending for adjudication before the learned Arbitral Tribunal, which is likely to cause prejudice to either of the parties at the hearing before the learned Arbitral Tribunal. Moreover, this Court by order dated 17.12.2015 passed in CRP No.438/2014, has already upheld the order by which the appointment of RTP was passed. Hence, the said issue having attained finality cannot be reopened again. Thus, notwithstanding the argument advanced by the learned counsel of OP-1 on merit, this Court declines to be drawn into the issue, which is sub-judice before the learned Arbitral Tribunal.
12) This Court is unable to accept the contention of the learned counsel for the respondent No.1 herein that the impugned order dated 29.09.2016 was an ex-parte order, for two reasons. Firstly, that in the said IA No.26/2017 in CRP No.380/16 Page 6 of 8 order itself it is mentioned that although acknowledgement card was not received back from the post office but it has been ascertained from the postal authorities that the order dated 11.09.2016, which was sent by registered post letter on 14.09.2016 was served/delivered to the addressee on 19.09.2016, and secondly, that one of the Arbitrators, namely, Sri Dipankar Medhi, had called-up the OP-1, yet the OP-1 chose not to attend the hearing scheduled on 29.09.2016. Therefore, even if it is assumed that the OP-1 did not get the order dated 11.09.2016 by post, nevertheless, there is no specific denial of the fact that he did not get a telephonic information from the learned Arbitral Tribunal about the hearing scheduled on 29.09.2016, but the OP-1 elected to keep himself away from attending the said hearing on the plea of not being served with a written notice. Therefore, his non-attendance in the said hearing was willful, negligent as well as by dint his own choice. This court, therefore, has no reason to interfere with the order impugned herein on the allegation that the OP-1 had no notice of hearing scheduled on 29.09.2016.
13) It is also seen that by the previous order dated 15.11.2014, the learned Arbitral Tribunal had already directed the parties to approach the RTP and when the earlier RTP had already expressed its inability to carry out the work by issuing a letter in writing, this Court finds no infirmity on the part of the applicant to approach the RTP for the purpose of a mere inquiry that as their name was suggested by the earlier RTP, whether the firm would be interested to take up the assignment if so ordered by the learned Arbitral Tribunal. By doing so, no aspersions or malice can be attributed either on the applicant or on the RTP. Therefore, this Court is not persuaded to interfere with the order impugned herein.
14) It is further seen that this Court by the order dated 17.12.2015 passed in CRP No.438/2014, inter alia, had made a specific mention that the parties shall cooperate with the RTP for completion of the survey work and the IA No.26/2017 in CRP No.380/16 Page 7 of 8 learned Arbitral Tribunal was directed to consider and decide all the relevant points that may be raised by the respective parties to be done as expeditiously as possible preferably within a period of six months from the date of the order. It appears that by not appearing before the learned Arbitral Tribunal on 29.09.2016 and thereafter by challenging the said order in the present revision, the aforesaid intention of this court for an expeditious disposal of the arbitration as expressed by the order dated 17.12.2015 in CRP 438/14, has been frustrated.
15) This Court is of the view that the said previous order of this Court in CRP No. 438/14 would be frustrated by keeping the Arbitral Proceeding No.4/2012 in suspension. Accordingly, this Interlocutory Application is allowed and the order dated 03.10.2016 passed by this Court in CRP No. 380/16 is hereby modified/varied and altered. Consequently, the suspension of the further proceeding of Arbitral Proceeding No.4/2012 as directed by the order dated 03.10.2016 in the connected CRP No. 380/16 is hereby revoked and/or withdrawn.
16) The learned Arbitral Tribunal may now proceed to decide the matter as expeditiously as possible.
JUDGE Mks/ IA No.26/2017 in CRP No.380/16 Page 8 of 8