Calcutta High Court
Rajib Bhattacharya vs Namita Bhattacharjee & Anr on 4 April, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-8, 9 & 10
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
IA No.GA 6 of 2022
IN
TS 8 of 2021
IN THE GOODS OF :
BISWANATH BHATTACHARYA, DECEASED
AND
RAJIB BHATTACHARYA
VS.
NAMITA BHATTACHARJEE & ANR.
IA No.GA 8 of 2022
IN
TS 8 of 2021
IN THE GOODS OF :
BISWANATH BHATTACHARYA, DECEASED
AND
RAJIB BHATTACHARYA
VS.
NAMITA BHATTACHARJEE & ANR.
IA No.GA 4 of 2021
IN
TS 8 of 2021
IN THE GOODS OF :
BISWANATH BHATTACHARYA, DECEASED
AND
RAJIB BHATTACHARYA
VS.
NAMITA BHATTACHARJEE & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 4th April, 2023.
Mr. Arjun Mookherjee, Mr. Sayantan Bose, Ms. Ankita Choudhury, Advocates for the plaintiff.
Mr. Sakya Sen, Mr. Arindam Paul, Advocates for defendant no.1. Mr. Rohit Banerjee, Mr. Narayan Debnath, Advocates for defendant no.3. 2 GA 6 of 2022 The Court : GA 6 of 2022 is an application by the defendant no.1 in the testamentary suit inter alia for injunction over the immovable properties being the subject matter of the Will, the probate whereof has been sought for.
GA 8 of 2022 GA 8 of 2022 is also an application by the defendant no.1 inter alia for removal of executor and appointment of an Administrator pendente lite.
The affidavit-in-opposition to the supplementary affidavit and the affidavit-in-reply thereto filed in Court today are taken on record.
GA 4 of 2021 GA 4 of 2021 is an application by the plaintiff seeking leave to execute power of attorney in favour of the developer who had been engaged by the testator during his lifetime for the purpose of developing one of his immovable properties.
The matter has a chequered history. The plaintiff had filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) against the developer. An appeal arose out of an order passed in such application. The order of the Appeal Court was carried to further appeal before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court had given the defendant nos.1, 2 and 3 to appear before the learned Arbitrator who has been appointed by this Court in an application under Section 11 of the 1996 Act by an order dated 9th September, 2022. The entire issue as to the development agreement on my reading of the order passed by the Hon'ble Supreme Court has been 3 placed before the learned Arbitrator. In the arbitration, even right and interest in respect of the immovable properties can be gone into which is not permissible in a probate proceedings and/or testamentary suit. Replacement of the executor by an Administrator at this stage will also have a cascading effect on the arbitration proceedings itself.
In the aforesaid facts and circumstances, the applications being GA 6 of 2022, GA 8 of 2022 and GA 4 of 2021 are directed to go out of the list for the time being with liberty to the parties to mention.
It is made clear that nothing discussed in this order shall have any impact of the arbitration proceedings.
(ARINDAM MUKHERJEE, J.) pa