9911796707
TMI Blog2010 (1) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... him, and that the appellant who was in possession of the said portions, was liable to deliver possession thereof to the first respondent on the basis of the said will. The Executors of the said will were impleaded as defendants 2 and 3 (respondents 2 and 3 herein). 3. The appellant herein, in turn filed a Civil Suit No.53 of 2007 for partition and separate possession of his one-sixth share in the ancestral properties. He also sought a declaration that the will dated 21.10.2003 propounded by the first respondent was fabricated, null and void. In the said partition suit, first respondent and his son were impleaded as defendants 1 and 6; appellant's another brother and three sisters were impleaded as defendants 2 to 5; the son of another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to show cause why the appeal should not be admitted, stayed the order dated 19.9.2007 passed by the trial court, by order dated 14.11.2007. 6. The first respondent accepted the decision of the trial court and filed a claim statement on 20.10.2007 before Shri U.N. Bhandari, the sole Arbitrator named in the declarations of his father, the reliefs earlier sought by him in Civil Suit No. 100/2006. The said U.N. Bhandari issued notices to the appellant and other non-petitioners in the claim. The appellant appeared before Shri U.N. Bhandari, and objected to his jurisdiction to act as an arbitrator, contending that there was no arbitration agreement between the parties. He also pointed out that neither he nor first respondent had signed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the interim stay of the order dated 19.9.2007, granted by the High Court on 14.11.2007, the appellant submitted that the learned designate of the Chief Justice ought not to have proceeded to decide the application for appointment of a fresh arbitrator, but ought to have awaited the decision in the first appeal. It was submitted that in the pending first appeal (against the decision dismissing his suit under Order 7 Rule 11 of the Code), if it is held that there is no arbitration agreement between the parties or if the court refuses to refer the parties to arbitration, the suits will have to proceed and that will lead to conflicting decisions. 8. Section 8 of the Act which is relevant is extracted below: "8. Power to refer parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, we are of the view that an application under section 11 or section 15(2) of the Act, for appointment of an arbitrator, will not be barred by pendency of an application under Section 8 of the Act in any suit, nor will the Designate of the Chief Justice be precluded from considering and disposing of an application under Section 11 or 15(2) of the Act. It follows that if an arbitrator is appointed by the Designate of the Chief Justice under section 11 of the Act, nothing prevents the arbitrator from proceeding with the arbitration. It also therefore follows that the mere fact that an appeal from an order dismissing the suit under Order 7 Rule 11 CPC (on the ground that the disputes require to be settled by Arbitration) is pending before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said decision has no relevance to the question on hand and at all events, is not of any assistance to determine whether there was any arbitration agreement, as contemplated under section 7 of the Act. Section 7 defines `arbitration agreement' as meaning an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. Sub-sections (2) and (3) of section 7 require that an arbitration agreement shall be in writing (whether it is in the form of an arbitration clause in a contract or in the form of a separate agreement). Sub-section (4) of section 7 enumerating the circumstances in which an arbitratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely upon the Will, the appellant denies the existence of any such Will. The validity of the Will is pending consideration in the two civil suits filed by the appellant and the first respondent, referred to above. The alleged Will, admittedly, does not contain any provision for arbitration, though the learned Designate has proceeded on an erroneous assumption that the Will provides for arbitration. Even if the Will had provided for reference of disputes to arbitration, it would be merely an expression of a wish by the testator that the disputes should be settled by arbitration and cannot be considered as an Arbitrator agreement among the legatees. In this case, according to the respondents, the provision for arbitration is not in the Will ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
