TMI Blog2012 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... of allotment of tenancy that was not permissible under the tenancy law. We fail to appreciate, as observed herein before, the arbitrator having published an alternative award by giving money compensation in lieu of such allotment would remove the legal obstacle, if any, on that score. Hence the award could not be faulted on that ground. Period of limitation - application after 30 days of receipt of notice - held that- there was stamp of Court on September 19, 1998. Hence it was within the period of limitation. Even if it was not so, the order of remand would make it specifically clear that the Division Bench referred the issue back to the learned Single Judge for being heard afresh. Once it was so the plea of limitation would not be applicable. - A.P.O. No. 384 of 2006 A.P.O. No. 385 of 2006 A.P. No. 455 of 1998 - - - Dated:- 11-10-2012 - ASHIM KUMAR BANERJEE, AND SHUKLA KABIR (SINHA), JJ. For the Appellants : Mr. Sarder Amjad Ali, Senior Advocate, Mr. Jishnu Chowdhury, Advocate, Mr. A.K. Roy, Advocate, Mr. Sarvapriya Mukherjee, Advocate, Mr. Satadeep, Bhattacharya, Advocate For the Respondent: Mr. Haradhan Banerjee, Advocate, (No. 1to 5) Mr. Amitava Pyne, Advocate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other statutory documents on behalf of the farm. Even a notice of demand from the Income Tax department demanding a sum of Rs. 3064 for the assessment year 1987-1988 was served on March 21, 1988 on Kamal Kumar as a partner. After the death of Kamal Kumar, his daughters claimed share in the partnership farm in accordance with the provisions of the Deed of Partnership. Rajat and Adhar being the surviving partners, however, declined on the ground that Kamal Kumar had resigned from the partnership by the said letter dated October 8, 1983. Hence, his daughters were not entitled to any share in the partnership, far to speak of their inclusion. Rajat and Adhar filed a suit being No. 428 of 1991 inter-alia claiming for a declaration that they were the only partners of Imperial Paper House and the daughters of Kamal Kumar did not have any right to claim share in the said farm. The daughters of Kamal Kumar applied under Section 20 of the Arbitration Act 1940 inter-alia praying for referring the dispute of Arbitration. On their application along with their mother, under Section 34 of the said Act of 1940, the learned Single Judge stayed the hearing of the suit. Shri Joy Saha, an advocate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite Dhar brothers applying before the Division Bench for recording of such settlement. They, in fact, revalidated the Pay Orders from time to time. We also adjourned the appeal from time to time when Mr. Ali, learned senior counsel appearing for the appellant expressed his inability to resolve the controversy in absence of other two sisters. We passed an order on September 17, 2012 asking the other two sisters to appear before us. Accordingly, Alpana and Jagatdhatri appeared. Jagatdhatri supported Rina and declined to accept the offer whereas Alpana took her share of Rs. 166667 and gave valid discharge to her sisters and Dhar brothers as well, leaving us with two heirs of Kamal Kumar being Rina and Jagatdhatri claiming 2/9th share in the farm. We heard the appeal on the above mentioned dates. Mr. Amzad Ali, learned senior counsel appearing for Rina, strenuously contended before us, the arbitrator published an unreasoned award that was not available for judicial scrutiny under the said Act of 1940. In any event, the application for setting aside was barred by the laws of limitation that the learned Judge failed to appreciate. On the settlement, Mr. Ali contended, appellant was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although a passing reference was made to the extent that they had suffered loss to the extent of Rs. 7 lacs approximately in view of siphoning off funds by Kamal Kumar. Regarding the comments of the learned Judge on the amendment of statement of claim, Mr. Chowdhury would contend, the amendment was made for abundant caution. The award was well within the scope of the original statement of claim if one would look at the prayers of the statement of claim at the pre-amendment state and compare it with the award. He referred to the order passed by the learned Single Judge subsequent to the judgement and order impugned wherein the learned Judge passed order observing that the arbitration agreement ceased to have any effect. According to him, the learned Judge after delivering the judgement and order impugned could not have passed such order that too, without bringing the same in the list and upon notice to the appellant. Mr. Haradhan Banerjee, learned counsel appearing for Dhar brothers contended, the controversy stood resolved before the Division Bench as recorded in the order dated February 23, 2007 hence, there could be no further argument of the issue. On the issue of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind it as an unreasoned one. The said Act of 1940 would permit an arbitrator to publish an unreasoned award. Once the arbitrator would choose to publish an unreasoned award it would be too difficult for the Court to interfere with the same. The Court of law was not the Court of appeal over the award of the arbitrator. It could only be interfered with when it was patently perverse. The present award would not satisfy such test. The arbitrator published a money award for Rs. 86258 along with interest at the rate of 6% per annum. What would be the basis of the said award, is unknown to us. Hence, we are not competent to examine the same. The second part of the award would justify allotment of a portion of the tenancy. Our tenancy law would not permit any such allotment without the consent of the landlord. Page 100 of the supplementary paper book would show, the landlords gave their consent to have proportionate transfer of tenancy in favour of the appellant. The said letter did not speak of the other heirs of Kamal Kumar. Moreover, the landlord already filed ejectment suit as we are told, as against the tenants being the partnership farm. The arbitrator anticipated these problems, ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the order of the learned Single Judge could not be sustained. On the limitation, we are however, unable to accept the contention of Mr. Ali. We have gone through the finding of the learned Judge appearing at paragraph 10 of the judgment to show, there was stamp of Court on September 19, 1998. Hence it was within the period of limitation. Even if it was not so, the order of remand would make it specifically clear that the Division Bench referred the issue back to the learned Single Judge for being heard afresh. Once it was so the plea of limitation would not be applicable. In this regard, we may quote the relevant extract of the judgment and order of the Division Bench dated April 24, 2001 appearing at pages 231-232 of the paper book. The relevant extract is quoted below: In that view of the matter, without expressing any opinion on the merit of the said challenge, this Court cannot uphold the judgement under appeal. The judgement under appeal is set aside purely on the ground that it does not deal with the challenge to the award which has been recorded in the judgement itself. It is however made clear by us that any observation made in this judgement will not be const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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