Calcutta High Court
Shree Shree Iswar Satyanarayanjee & Ors vs Amstar Investment Pvt Ltd on 26 August, 2013
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ORDER SHEET
APO No. 242 of 2013
AP No. 630 of 2013
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SHREE SHREE ISWAR SATYANARAYANJEE & ORS
Versus
AMSTAR INVESTMENT PVT LTD.
BEFORE:
The Hon'ble JUSTICE BANERJEE
The Hon'ble JUSTICE Dr. SAMBUDDHA CHAKRABARTI
Date : 26th August, 2013.
Appearance:
Mr. Malay Ghosh with Mr. S. K. Dutt,
Mr. Prasanta Baskar and Mr. S.S.Bhutoria
Ld. Advocates for the appellant.
Mr. Joy Saha with Mr.Reetobroto Mitra
Ld. Advocates for the respondent.
The Court :- This appeal has a
chequered career. No one would disagree with us if we call
the backdrop unfortunate, even we cannot extend any relief for want of appropriate legal support. Yet our conscience would prick and we would be failing in our duty if we do not record the relevant facts.
The appellant would claim, the deity was the owner of the subject property let out to the respondent. The respondent would, however, dispute the ownership, at least to a substantial extent, which they claim they purchased it 2 from the actual owner. Be that as it may, the property is situated at Salkia, Howrah measuring about 26 cottachs. However, the measurement is in dispute. The respondent is paying rent @ Rs.1400/- per month. The eviction proceeding is to be decided through arbitration as agreed by and between the parties. The erstwhile Arbitrator entered upon the reference in 2004. He could not complete the proceeding. The respondent approached this Court under section 14 for termination of his mandate. They were not successful. The Arbitrator initially observed, he would not continue, thereafter wanted to continue. The second application under section 14 succeeded at the instance of the respondent. A senior Advocate of this Court replaced the erstwhile Arbitrator. The senior Advocate entered upon the reference in 2012 pursuant to the order dated February 22, 2012. The original arbitration did not specify any time frame. However, the learned Judge while passing the order dated February 22, 2012 giving mandate to the new Arbitrator recorded an added stipulation at the instance of the parties, through exchange of letters the Arbitrator would have to conclude the reference within 6 months from the date of the order. The learned Judge permitted the new Arbitrator to resume from the stage where the erstwhile Arbitrator had left.
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The list of dates handed over by Mr. Malay Ghosh on behalf of the appellant would show, the new Arbitrator held eight sittings between April 10, 2012 and July 10, 2012 when the time to make and publish the award expired on July 22, 2012. The parties continued to participate. Meeting was held on July 24, 2012 and thereafter this continued for a long time until one of the parties approached the learned Judge for extension of time. The learned Judge by a judgment and order dated March 7, 2013 dismissed the application for want of appropriate provisions under the Arbitration and Conciliation Act, 1996 for extension of time to publish the award. His Lordship would, however, record a concession on the part of the respondent to the extent, there shall be an extension for three months from the said date. The relevant extract is quoted below:-
"It is recorded, however, that the respondent has agreed that it has no objection to the time for making and publishing the award being extended by a period of three months from today."
The Arbitrator continued to hold reference. We are told, only one witness is left to be examined. As per subsequent extension, the time was to expire on June 7, 2013. At the 26th meeting held on May 14, 2013, the examination-in-chief of Amit Kr. Goenka, the respondent's 4 representative, could not be concluded. The Arbitrator fixed the next date on June 3, 2013 for further examination-in-chief. On June 3, 2013 the learned Counsel was in difficulty. Hence, the respondent prayed for an accommodation as we find from page 107 of the said petition. The appellant through their Advocate's letter of the same date appearing at page 108 reminded the Arbitrator, the time would be expiring on June 6,2013. The Arbitrator, however, accommodated the learned Counsel and fixed the matter on June 17, 2013. Possibly the Arbitrator was under the bonafide impression, since the respondent was asking for an adjournment, they would definitely consent to an extension that did not actually happen. The respondent did not give consent for an extension and allowed the time to be lapsed. In this backdrop, the appellant filed an application before the learned Single Judge. His Lordship dismissed the same for want of an appropriate law. His Lordship rightly recorded, there was no provision under the said Act of 1996 like Section 28 of our old Arbitrator law being the Act of 1940. Hence this appeal.
Initially, we adjourned this matter from time to time hoping, good sense would prevail upon the parties. They would allow the Arbitrator to conclude the proceeding. 5 The respondent, however, did not agree. Today, we have heard the parties on merits.
Mr. Malay Ghosh, learned Counsel appearing for the appellant has drawn our attention to the relevant order referred to above and the correspondence. Mr. Ghosh has also drawn our attention to Section 4 of the said Act of 1996 to support his contention, by participating in the arbitration the parties by their conduct waived the stipulation that was added to the appointment of the new Arbitrator as recorded in the earlier order dated February 22, 2012.
Pertinent to note, the arbitration agreement did not have any stipulation as to the time frame. Parties by addendum stipulated the period that they allowed it to expire. Yet, they continued with the arbitration. Mr. Ghosh would contend, once such waiver was made at the instance of the respondent and the original agreement having no stipulation, the Arbitrator was to conclude the reference within a reasonable time. He would contend, no extension was at all required. He would, however, in his usual fairness submit, the maintainability of this appeal is in doubt.
Mr. Joy Saha, learned Counsel appearing for the respondent would rely upon the decision of the Apex Court 6 in the case of N.B.C.C. Ltd. vs. J.G. Engineering Pvt. reported in 2010 AIR SC 640. In an identical situation, the Apex Court affirmed the decision of this Court denying the relief. Mr. Saha would contend, since there was no provision in the Statute, the learned Judge was right in dismissing the application that would not call for any interference and in any event, the appeal itself is not maintainable.
We have considered the rival contention and the law on the subject including the Apex Court precedent cited at the Bar. Although we find the Apex Court's decision was rendered in a case of the like nature, there was little distinction as we find in paragraph 7 where the Apex Court would record as follows:
"It is true that apparently there is no provision under the Act for the Court to fix a time limit for the conclusion of an arbitration proceeding, but the Court can opt to do so in the exercise of its inherent power on the application of either party. Where however the Arbitration agreement itself provides the procedure for enlargement of time and the parties have taken recourse to it and consented to the enlargement of time by the Arbitrator, the Court cannot exercise its inherent power in extending the time fixed by the parties in the absence of the consent of either of them."7
Even if we would agree with Mr. Ghosh there was waiver we cannot extend any relief as the law is silent on this issue. If the principle of waiver is accepted by the Arbitrator, it would be for the Arbitrator to continue. We cannot confer any additional blessing. It is really unfortunate, the Arbitrator was not allowed to conclude the reference. From the list of dates placed before us, we do not find any laxity on the part of the Arbitrator. If we look to section 14, we would find, the Arbitrator was to conclude the reference without undue delay. We are not concerned with the proceeding before the erstwhile Arbitrator. Mr. Saha would suggest, proceeding has been continuing since 2004. He is not prejudiced. He is enjoying the property paying a little. However, for want of appropriate provision, we cannot extend any relief although we are fully impressed with the facts.
The appeal fails and is hereby dismissed without any order as to costs.
(BANERJEE, J.) (Dr. SAMBUDDHA CHAKRABARTI, J.) dg/