Calcutta High Court
Ghanshyam Sarda vs Sri Govind Kumar Sarda & Ors on 24 July, 2017
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
G. A. No. 3709 of 2015
With
C. S. No. 278 of 2015
G. A. No. 682 of 2016
G. A. No. 683 of 2016
G. A. No. 684 of 2016
G. A. No. 685 of 2016
G. A. No. 687 of 2016
IN THE MATTER OF:
GHANSHYAM SARDA
Versus
SRI GOVIND KUMAR SARDA & ORS.
AND
G. A. No. 936 of 2016
With
C. S. No. 278 of 2015
G. A. No. 3709 of 2015
IN THE MATTER OF:
GHANSHYAM SARDA
Versus
SRI GOVIND KUMAR SARDA & ORS.
AND
G. A. No. 3371 of 2016
With
C. S. No. 278 of 2015
G. A. No. 3709 of 2015
IN THE MATTER OF:
GHANSHYAM SARDA
Versus
SRI GOVIND KUMAR SARDA & ORS.
AND
G. A. NO. 156 OF 2017
With
C. S. No. 278 of 2015
G. A. No. 722 of 2017
G. A. No. 723 of 2017
IN THE MATTER OF:
GHANSHYAM SARDA
Versus
SRI GOVIND KUMAR SARDA & ORS.
2
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 24th July, 2017.
Appearance:
Mr. S. N. Mitra, Sr. Adv.
Mr. A. Kanodia, Adv.
Mr. S. Saha, Adv.
...for the plaintiff.
Mr. Mainak Bose, Adv.
Mr.S. N. Pandey, Adv.
..for petitioner.
(GA No.156 of 2017)
Ms. Manju Manot, Adv.
Mr. A. Banerjee, Adv.
Mr. Rajib Mullick, Adv.
...for respondent nos.82 & 83.
Mr.R. Chandra Deb, Adv.
...for respondent no. 20.
Mr. Saumabho Ghosh, Adv.
...for respondent no.76.
Mr. Suman Kr. Dutt, Adv.
Ms Alakananda Das, Adv.
..for Defendant no.83.
(GA No.3709 of 2015 & CS 278 of 2015) Mr. Aritra Basu, Adv.
Mr. S. K. Kundu, Adv.
...for defendant nos.79, 121 to 125.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. S. Mukherjee, Adv.
Mr. A. Agarwalla, Adv.
...for defendant no.1.
Mr. Vipul Kundalia, Adv.
Mr. S. Saha, Adv.
...for respondent no. 93.
The Court:-Mr. Aritra Basu, learned Advocate appears on behalf of the defendant nos. 79, 121 to 125. He seeks adjournment of hearing on the ground that his clients have preferred an appeal from order dated 9th March, 2017 by which the subsidiary of his clients was added as party to the suit. He submits, when the stay 3 application was moved, satisfaction of Court was not obtained on service. Therefore, order of stay could not be made for consideration. He submits further, the plaintiff has also preferred an appeal from order dated 9th March, 2017 so in the fitness of things the hearing of the demurrer applications should be pended awaiting decision in the appeals.
Mr. Bose, learned Advocate appears on behalf of the added defendant and also seeks adjournment on similar grounds.
Mr. S. N. Mitra, learned senior Advocate appears on behalf of the plaintiff and submits, he wants to continue with his submissions regarding the merits of the demurrer applications. That would in no way cause conflict as implied by the parties seeking adjournment.
The prayers for adjournment are declined in accepting the submission of Mr. Mitra. He continues with his submissions. After a brief recapitulation he distinguishes another judgement of the Supreme Court in the case of Shaliesh Dhairyawan Vs. Mohan Balkrishna Lulla reported in (2016) 3 SCC 619, relied upon by the defendant no.1. He submits, the Supreme Court in that case was considering the terms of settlement between the parties, which terms included an agreement to refer two differences to the arbitration of a retired Supreme Court Judge. He draws attention to the portions in several paragraphs of the judgement in which the said Court in 4 dealing with the opposition to replace the said named arbitrator said, inter alia, as follows:
".... This can only be done where the arbitration agreement does not show that it was intended that the vacancy caused be not supplied......"
".... Unless it is clear that an arbitration agreement on the facts of a particular case excludes either expressly or by necessary implication the substitution of an arbitrator, whether named or otherwise, such a substitution must take place..... "
".... All that the parties have done by the said clause is to agree to refer their disputes to the arbitration of an independent retired Judge belonging to the higher Judiciary. There is no personal qualification of Mrs. Justice Sujata Manohar that is required to decide the dispute between the parties....."
He submits, the arbitration agreement between the parties here is within the exceptions as considered by the said Court in that judgement. He will continue with his submissions.
List the matter for hearing on 27th July, 2017 at 2:00 P. M. (ARINDAM SINHA, J.) nm