Calcutta High Court
Ghanshyam Sarda vs Sri Govind Kumar Sarda & Ors on 25 February, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
GA 3709 of 2015
With
CS 278 of 2015
TA 14 of 2016
TA 15 of 2016
TA 16 of 2016
TA 17 of 2016
TA 18 of 2016
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
GHANSHYAM SARDA
Versus
SRI GOVIND KUMAR SARDA & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date: 25th February, 2016.
Appearance:
Mr. S. N. Mitra, Sr. Adv.
Mr. A. Kanodia, Adv.
Mr. D. Das, Adv.
... for the plaintiff
Mr. Abhrajit Mitra, Sr. Adv.
Mr. S. Mukherjee, Adv.
Mr. A. Agarwal, Adv.
Ms. P. Lahiri, Adv.
... for the defendant no.1
Mr. Sanjib Kr. Mal, Adv.
Mr. A. Raychoudhury, Adv.
Mr. D. Dey, Adv.
... for the respondent nos. 29, 36 & 70
Mr. A.K. Mitra, Sr. Adv.
Mr. S. Ghosh, Adv.
... for the defendant no.76 Mrs. Manju Agarwal, Adv.
Mr. A. Banerjee, Adv.
Mr. R. Mullick, Adv.
Ms. S. Chakraborty, Adv.
... for the respondent no.82 Mr. Pramit Kr. Ray, Sr. Adv.
Mr. R. Mullick, Adv.
Ms. S. Chakraborty, Adv.
.. for the respondent no. 83.
2Mr. Ratnanko Banerjee, Sr. Adv.
Mr. S.K. Chakraborty, Adv.
Mr. S. Bhattacharya, Adv.
... for the respondent nos. 82 & 120.
The Court: Mr. Kapoor learned Advocate appeared on behalf of the defendant nos.2 and 13 to 16 and submitted annexures B to F of the plaint are particulars of joint properties of the brothers and the defendant nos.21 to 100 are the companies in which the brothers are jointly interested.
Mr. Abhrajit Mitra, learned Senior Advocate appeared on behalf of the applicant/defendant no.1 in the demurrer application. The Court proceeded to hear such application in spite of objection that copies thereof were not served upon the parties other than the plaintiff, which parties claimed to be in the same position as the plaintiff in this partition suit. Accordingly Mr. Mitra confined his submissions to the plaint and law. He submitted on requisition made copies of the application will be supplied.
Mr. Mitra relied on an order dated 16th July, 2009 of a learned Single Judge of this Court made in AP no. 400 of 2009 (Ghanshyam Sarda vs. Govind Kumar Sarda) which, he submitted, was made in relation to arbitration proceedings referred to in the plaint. He submitted the said order stands accepted by the parties and has become final. He referred to a portion of that order as is reproduced below:
"Section 14 is to be read as a whole. Section 14 (1) provides that the mandate of an Arbitrator shall terminate - 3
(a) If he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay;
(b) He withdraws from his office or the parties agree to the termination of his mandate.
Where there is a time stipulation for completion of arbitration in the arbitration agreement itself the Arbitrator becomes de jure unable to perform his functions upon expiry of such time. In the absence of mutual consent such time cannot be extended. Moreover if the arbitrator decides not to further proceed in the absence of mutual consent, this Court cannot compel the Arbitrator to continue. The mandate of the arbitrator terminates."
Mr. Mitra submitted further the suit is barred by law being the provisions of Section 5 of the Arbitration and Conciliation Act, 1996 applicable to Part I in which Section 14 features. The pronouncement in the said order that where there is a time stipulation for completion of arbitration in the arbitration agreement itself, the Arbitrator becomes de jure unable to perform his functions upon expiry of such time and in absence of mutual consent such cannot be extended, is sufficient to attract the provisions of Section 14 and consequently Section 15 of the said Act. Once those provisions are attracted judicial intervention is not possible as the jurisdiction of Court stands limited by the provisions of Section 5.
Mr. Mitra has further submissions, which will be heard on the adjourned date.
4
Mr. Anindya Mitra, learned Senior Advocate appearing on behalf of the defendant no. 76, which defendant has also taken out a demurrer application, submitted the award relied upon in the plaint was a final award and the Arbitration Agreement being in respect of all disputes between the parties, the cause of action of the plaintiff had merged in the award. He too will make further submissions on the adjourned date.
The hearing of the applications is adjourned due to paucity of time. List the applications on Tuesday next as item no.1.
(ARINDAM SINHA, J.) sg2