9911796707
TMI Blog1979 (1) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... history of the said dispute. But thereafter the parties agreed to refer the disputes to the arbitration of Shri A. K. Sen, arbitrator; an arbitration agreement in writing dated 10th of May, 1977 was entered into. It would be necessary to refer in brief to the said arbitration agreement. The agreement is between Krishna Kanta Paul the respondent No. 1 herein who is the son of Ramani Kanta Paul being the respondent No. 4 herein, Malay Kumar Paul being the son of one Mrinal Kanti Paul being the respondent No. 2 herein and Ramani Kanta Paul and one Tapan Kumar Paul, son of Ramani Kanta Paul. The said company was also a party to the said agreement. The agreement dated 10th of May, 1977 recited that disputes and differences had arisen between the parties regarding various movable and immovable properties and businesses as set out in Schedule I to the said agreement. The agreement, further, states that some of the parties hold shares in the company as set out in Schedule II of the said agreement. The agreement, further, goes on to recite that as differences and disputes had arisen between the parties to the agreement in respect of and arising out of such business and/or properties and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :-- I hereby direct and award as follows : 1. The shop room of the Company (hereinafter referred to as the said shop room ) is situated at premises Nos. 213 and 213-B, Mahatma Gandhi Road, Calcutta and also at premises Nos. 76/1 and 76/G, Netaji Subhas Road, Calcutta, which comprises of (a) the ground floor having an area of 2,144 sq. ft approximately with a frontage of 43' having 5 door openings and 2 shop-windows and an average depth of 45' from the Northern side of Mahatma Gandhi Road with a mezzanine floor on the ground floor. The said ground floor consists of a western portion comprising Lots A and B shown in the Plan annexed hereto and marked K (hereinafter referred to as the annexed plan ) bounded on the west, north and south by red lines and on the east, north and south by yellow lines and the eastern portion comprising of Lot C shown in the annexed plan bounded by green lines on the east, west, north and south and (b) the first floor comprising of an area of 2,270 sq. ft. approximately consisting of two portions viz. the northern and southern portions, the access to both being from the ground floor through a staircase rising from the ground floor of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly from the said base line on the east and two lines on the north and south of the said shop room connecting the said two straight lines also marked in yellow and shown as Lot B in the annexed plan. Lot A is shown by boundaries in red lines and Lot B is shown as boundaries in yellow lines in the annexed plan. Lot C is a segment shown and bounded by green lines in the annexed plan, being the segment lying to the east of Lot B and bounded on the west by the boundary of the said premises No. 213, Mahatma Gandhi Road, and on the east by the boundary on the east of the said shop room. Lot A and Lot B are comprised in the premises No. 213B Mahatma Gandhi Road. The Lot C is comprised in the premises No. 213, Mahatma Gandhi Road The eastern and western portions of the said shop room on the ground floor is shown as such in the annexed plan. 3. The first floor of the said shop room is included in premises No. 76/1, Netaji Subhas Road, Calcutta and 76/C, Netaji Subhas Road, Calcutta and are shown in the annexed plan as consisting of the portions marked Lot A-1, Lot B-1 and Lot C-1. Lot A-1 comprises of an area of 380 sq. ft. approximately shown and bounded by red lines in the annexed pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises an area of 460 sq. ft. and the said godown and has been allotted to and belongs to Smt. Kailash Devi Burman. Lot C-1 on the first floor of the said shop room falls within premises No. 76/G, Netaji Subhas Road, Calcutta, and is shown as bounded by green lines in the annexed plan. It Comprises an area of 910 sq. ft. and 340 sq. ft. approximately and has been allotted to and belongs to Madan Mohan Burman. 5. In satisfaction of all the claims that Krishna Kanta Paul has or may have against the Company and by way of discharge and satisfaction of all his claims against the Company the Company shall assign and transfer to the said Krishna Kanta Paul all its right, title and interest of the tenancy of the company in respect of the portion of the said shop room marked and shown as Lot A and Lot A-1 in the annexed plan and he shall be the tenant of the said portions being Lot A and Lot A-1 under the Landlord Krishna Kumar Burman for Lot A and Rajkumar Burman for Lot A-1 at half the rent which is now being paid to Krishna Kumar Burman by the Company for the portions of Lots A and B shown in the annexed plan of which the said Krishna Kumar Burman is the owner and at the rent which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay Kumar Paul shall pay one third of the municipal rates and taxes payable by the Company for the said shop room from the date of this award. 7. On the assignment and transfer of the tenancy of the Company in respect of the said portion Lot A and Lot A-1 in favour of Krishna Kanta Paul, and Lot B and Lot B-1 in favour of Mrinal Kanti Paul and Malay Kumar Paul jointly as directed hereby Krishna Kanta Paul, Mrinal Kanti Paul and Malay Kumar Paul shall have no claim or demand against the Company or against any other parties in these proceedings and all their claims against the Company or any other party shall stand fully satisfied and discharged. 8. The Company will continue to be the tenant of the portions shown as Lot C and Lot C-1 in the annexed plan which fall with the ownership of Shri Madan Mohan Burman with effect from the date of this Award and it will continue to pay the rent now being paid or is payable to Madan Mohan Burman by the Company in respect of the said portions shown as Lot C and Lot C-1 in the annexed plan. The consent of Madan Mohan Burman for the Company assigning its tenancy rights in respect of the portions Lot A and Lot A-1 and Lot B and Lot B-1 as afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares of the Company of the face value of ₹ 100/- each, Mrinal Kanti Paul holds 804 equity shares in the Company of the face value of ₹ 100/- each and Malay Kumar Paul holds 307 equity shares of the Company of the face value of ₹ 100/- each. I direct that Krishna Kanta Paul, Mrinal Kanti Paul and Malay Kumar Paul shall within one month of the commencement of the erection of partition walls for the portions marked Lots A and A-1 and Lots B and B-1 as directed above, assign and transfer the equity shares held by them in the Company as mentioned above, to Tapan Kumar Paul at ₹ 250/- (Rupees two hundred fifty only) per share. 13. On such assignment and transfer of the said equity shares held by Krishna Kanta Paul, Mrinal Kanti Paul and Malay Kumar Paul in the Company in favour of Tapan Kumar Paul, they shall have no claim against each other or against Tapan Kumar Paul or Ramani Kanta Paul nor shall Tapan Kumar Paul or Ramani Kanta Paul have any claim against Krishna Kanta Paul, Mrinal Kanti Paul or Malay Kumar Paul thereafter. 14. If Krishna Kanta Paul intends to transfer, sell or assign the tenancy rights in respect of Lots A and A-1 shown in the annexed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into and given effect. It was secondly, urged that the annexed plan upon the basis of which the award was made contained inaccuracy and the said plan was prepared without the knowledge and/or consent and without giving any opportunity to the parties in violation of the principles of natural justice and therefore the arbitrator had committed an error and/or misconducted the arbitration proceedings on this aspect. It was, thirdly, contended that on the face of the award, the award indicated errors apparent on the face of the same and there was non-application of mind by the arbitrator. It was urged that there was error regarding reference to the arbitration agreement and description of the premises in question. It was, fourthly, contended that the award purported to divide the tenancy rights and divide the shop room and create separate tenancies and the same was in violation of the provisions of the West Bengal Tenancy Act, 1956 as there was no proper and/or valid and/or acceptable evidence of any consent on behalf of the landlords. It was, further, submitted in this connection that the award could not bind the landlords who were not parties to the arbitration agreement but the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under the Arbitration Act, 1940 the question whether the award in question required registration as such is not of relevance any more. I shall note the relevant authorities on this point cited from the Bar by the different parties. I am not concerned in this application with the validity or otherwise of the order of the Registrar of Assurances granting extension of time. 5. In this connection reliance was placed on a decision of mine in the case of Pramode Kumar v. Bhuramal, AIR1977Cal340 where I had reviewed some of the principles enunciated in the different decisions. Similarly, my attention was also drawn to the decision given by me in the case of Mulchand v. Dalam Chand, AIR1978Cal352 . Parties drew my attention to the observations of the Division Bench of this Court in the case of Aditya Kumar v. Narayandas, AIR1971Cal65 , a Division Bench judgment of the Patna High Court in the case of Kubad Mia v. Guhi Mia AIR 1940 Pat 92, in the case of Ranjagamier v. Ranjagam Iyyar of the Madras High Court AIR 1920 Mad 172 and in this connection my attention was also drawn to the decision of the Supreme Court in the case of Satish Kumar v. Surinder Kumar, [1969]2SCR244 . As I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror of law on the face of the award means that you can find in the award or in a document actually incorporated therein as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which was the basis of the award and which you could (then) say was erroneous. The Court has no jurisdiction to investigate into the merits of the case and to examine the documentary and oral evidence on the record for the purpose of finding out whether or not the arbitrator had committed any error of law. 7. Now, in this case the first point on the aspect of the error of law was that the arbitrator had purported to divide the assets of the company which under the law the arbitrator was not competent. I have set out the award before. My attention in this connection was drawn to Clauses (1), (2), (3), (5), (6), (7), (8) and (11) of the award in support of the contention that the assets of the company had been dealt with by the award which could not be the subject-matter of the award by the arbitrator in the manner done by him. Now in this connection before I deal with the actual contentions it may be necessary to remember that in the background of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors even if such creditors are the shareholders of the company and such claims perhaps originated out of the shareholdings in the company. There was evidence before the arbitrator on this point and, furthermore, the entire proceedings before the arbitrators proceeded on the basis that the parties were willing to divide the assets of the company. In such circumstances, in my opinion, the arbitrator did not commit any error of law in the award that he made on this aspect of the matter. Where certain consequences might be expected of certain adjudication if such disputes, are referred for adjudication then it cannot be said that the arbitrator has acted in excess of his jurisdiction if those consequences follow. Some support for this proposition was sought to be drawn on behalf of the respondents from the decision in the case of Union of India v. M. L. Dalmiya Co. (1977) 81 CWN 168. 9. As I have mentioned before there are two other applications impugning the award and I am in this judgment dealing with all the several points raised. The second ground of attack to the award was that the award was incomplete as it had not dealt with all the points of disputes. It was contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprised the tenancy rights of the company. The arbitrator has divided in essence the said tenancy rights of the different allottees in the manner he has done. Now, it was contended that in view of the provisions of the West Bengal Tenancy Act, 1956 assignment or subletting or transfer of tenancy require the consent in writing of the landlords. My attention was drawn to Section 13(1) of the said Act, to Section 14, Section 17 and to Section 30(3) of the Act, and it was contended that from the evidence on record there was no consent of the landlord in writing io the sub-division or assigning as the arbitrator has purported to do and if the landlords refuse to accept such sub-divisions and the different allottees as their tenants the whole award would fail and would become unworkable. It appears that this point had been specifically argued before the arbitrator and a letter dated 9th of September, 1977 written by three of the landlords was filed before the arbitrator. The said letter was as follows:-- Messrs. Krishna Kanta Paul, Mrinal Kanti Paul Dear Sirs, With reference to your proposal for division of tenancy in premises Nos. 213 and 213B, Mahatma Gandhi Road and 76/1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve told the learned Arbitrator that you are the landlord in respect of the portion marked as 'CA'?/ correct. Can you tell the learned Arbitrator how you have become the landlord of portion CA?/ This is our ancestral property and it has come to me by partition and this portion was allotted to my father. And it was done by formal partition deed?/ Yes there is a partition deed. Pursuant to which the portion CA has been allotted to you?/ Yes. Mr. Burman, are you willing to give tenancy right in respect of the portion 'CA' to any one of the parties, if allotted to him by the learned arbitrator?/ I do not have any objection to their partition as far as the partition is concerned because it is their internal affair. Whichever party gets the portion will have to negotiate with me, and if we come to an agreement the tenancy will be transferred in his name. I have filed an ejectment suit the tenancy will be transferred in his name. What do you mean by dealing with ?/ If proper term are settled then I am willing to give. Mr. Burman, I understand you had discussion with some of the persons interested in the matter ?/ Yes. I believe that on the line of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of Rajkumar Burman was produced before me in aid of the submission that the landlords had not acted in compliance with the so-called consent that they were supposed to have given in respect of this matter. But this letter being subsequent to award, in my opinion, cannot be taken into consideration in judging the validity of the award. 12. It was, then, contended that the arbitrator has acted without jurisdiction in valuing the shares at ₹ 205 while the face value of the shares was very much less. It appears that from the minutes of the meeting appearing at page 34, page 7, page 9, page 23, page 26, page 27, page 28, page 29, pages 30 to 33 that there was evidence on the assets of the company and there was evidence upon which the arbitrator could value the said shares in the manner he did. If that was the position, then, in my opinion, it cannot also be said that the arbitrator has acted illegally or without evidence. 13. The next ground of attack was that the arbitrator in his award has made the allotments on the basis of a plan which has been marked as the annexed plan and there was no opportunity given to the parties to make submissions in respect of this pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arbitrator himself were produced before me from the record of the arbitration proceedings and it appears to me that annexed plan upon which the arbitrator has made the award represents substantially more or less the pictorial representation of the alterations and modifications made by the arbitrator of Ext. C after hearing the submissions of the parties on Ext. C. It is true that the arbitrator had not called upon specifically and separately upon the parties to make any separate submissions on the annexed plan nor had given them any opportunity to make any submissions on that plan. But in my opinion, that does not, affect the position. The arbitrator is not bound to make known before he makes his award what his award was to be and if an award incorporates certain pictorial representation of his findings it is not, necessary that such pictorial representation should be made known to the parties before the arbitrator proceeds to make the award finally. I do not find in the background of the prolonged discussions and proceedings before the arbitrator on this aspect of the matter any breach of the principles of natural justice and this contention urged in support of this application, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be unfair and improper to read the award of an arbitrator with minute technicality. Judged from this point of view in my opinion the award cannot be said to be bad. 17. The last contention that requires consideration in this case is the question of limitation. On the 30th of January, 1978 the award was made by the arbitrator. On the 31st of January, 1978 the arbitrator wrote to the parties informing them that he had made an award and sending the parties copies of the same. On the same date that is to say on 31st of Jan.. 1978 there was a letter by the arbitrator to the Registrar of this Court for filing the award. It is alleged in the affidavit-in-opposition by Krishna Kanta Paul that the arbitrator had filed the award on the 10th of March, 1978. It, further, appears that on the 26th of June, 1978 there was a report by one G. K. Dull who was appointed Administrator that the arbitrator had filed his award and the parties thereby came to know that the award had been filed on the 29th of June, 1978. From the notice issued under Section 14(2) of the Arbitration Act, 1940 by the Court to the parties it appears that it was stated that the award had been filed on the 12th of July. 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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