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2007 DIGILAW 230 (CAL)

SK. NABIULLA v. NOOR MOHAMMAD

2007-03-28

PRABUDDHA SANKAR BANERJEE

body2007
( 1 ) THESE fevisional applications are as per Section 115 of the Civil procedure Code and are directed against judgment and decree dated 9. 4. 1990 passed in connection with Title Appeal No. 62 of 1986 by the learned Additional District Judge 1st Court, Howrah by which the judgment and decree passed by the learned Munsif, 4th Court, Howrah in connection with Title Suit No. 202 of 1969 was affirmed. (Heard analogously with t. A. No. 61/1986 arising out of T. S. No. 76 of 1970 ). ( 2 ) THE fact leading to filing of the instant revisional application may be summed up thus:- (i) That the Opposite Parties brought a suit being Title Suit no. 202 of 1969 before the learned 4th Court of Munsif at Howrah against the predecessor-in-interest of the present petitioners sk. Rahamatullah for recovery of possession after evicting him along with other consequential relief. (ii) In the said case, the plaintiff took the plea that they were the owners of the Western portion of the disputed holding on the basis of purported Deed of Gift dated 28. 11. 1936. (iii) The plaintiffs further claimed accordingly, they were in possession of the property in question. The plaintiff also took the plea that the predecessor-in-interest of the present petitioners and his brother were licensee with respect to Western portion of the said premises and in spite of revocation of licence, they did not vacate the premises in question for which the suit was filed. During pendency of the said suit, Rahmatullah died and his legal heirs were duly substituted. (iv) The said Sk. Rahmatullah brought a suit being T. S:no. 76 of 1970 against present Opposite Parties and against Noor Md. , mst. Mahenessa Bibi and Mst. Kurma @ Khasrunessa Bibi (v) That was suit for partition. (vi) Both the suits were tried analogously. (vii) During pendency of the said suits one joint petition was filed by the parties for referring the matter to the Arbitrators for settling the dispute. (viii) By order No. 288 dated 18. 8. 1975, 16 Arbitrators were appointed. (ix) One Ramdeo Ram was also appointed as Umpire however, the Arbitrators failed to come to a unanimous decision and there were two separate awards by two groups. (viii) By order No. 288 dated 18. 8. 1975, 16 Arbitrators were appointed. (ix) One Ramdeo Ram was also appointed as Umpire however, the Arbitrators failed to come to a unanimous decision and there were two separate awards by two groups. (x) The present petitioners took the plea before the Court below that the Umpire did not enter on the reference and also did not make his award according to the provision of Indian Arbitration act, 1940 and only put his signature in the purported award signed by majority of the Arbitrators. (xi) The present petitioner took the specific plea that the said act of the Umpire is nothing but legal misconduct. (xii) The present petitioners also took the plea that as the learned Munsif appointed Ramdeo Ram as Umpire, the Court was not in a position to consider the alleged majority award without following the provision of the said Act of 1940. The present petitioners took the specific plea that the Umpire ought to have entered into the reference and make an award thereafter. (xiii) As such, the present petitioners filed objection before the learned Munsif challenging the award passed by the Majority members on the ground that same was vitiated being wholly without jurisdiction. In the said objection, the present petitioner also took the plea that the signature on the majority award by the Umpire did not automatically make the award of the Umpire as final and also took the plea that the said Ramdeo Ram who was appointed as umpire had no capacity or jurisdiction to put his signature as one of the Arbitrator. (xiv) The learned Munsif by a composite order dated 18. 12. 1986 over ruled the said objection and passed the decree in terms of the majority award. ( 3 ) IT is the specific case of the present petitioners that in effect, both the suits were decreed and the so called majority award was made part of the decree in both the suits. ( 4 ) IT is the further case of the present petitioners that they have claimed 3/4th share in the said holding and by the decree passed by the learned Munsif, 8 annas share of the plaintiff was declared in both the suits. ( 4 ) IT is the further case of the present petitioners that they have claimed 3/4th share in the said holding and by the decree passed by the learned Munsif, 8 annas share of the plaintiff was declared in both the suits. ( 5 ) AGAINST the order and decree passed by the learned Munsif in both the suits, two appeals were preferred against the decree passed in those two cases being Title Appeal No. 61 of 1986 and Title Appeal No. 62 of 1986. ( 6 ) BY Judgment and Decree dated 9. 4. 1990, the said appeals were dismissed by the learned Additional District Judge, 1st Court, Howrah and being aggrieved by the order of the learned Additional District Judge, howrah, the instant revisional application has been filed by the appellants of those two appeals. ( 7 ) MR. S. Basu, learned Counsel for the petitioner challenged the impugned order mainly on the following grounds:- (i) That the Court did not consider that in the alleged majority award, one Arbitrator signed for self and on behalf of another person though the power of delegation has not been provided in the Act itself. (ii) That the award was not as per provision of Section 20 of the Arbitration Act. (iii) That though the Umpire was not one of the Arbitrators, he signed over the alleged majority award as an Arbitrator. (iv) That the provisions of Sections 30 and 33 of the Act were not complied with. (v)That the alleged Act of the Umpire is nothing but misconduct on his part and the Courts below ought to have rejected the award. ( 8 ) THE said pleas were strongly opposed by Mr. Sukumar bhattacharjee learned Counsel for the Opposite Party who contended that the present petitioner, at this stage cannot challenge the majority award which has been accepted by the Court. It was his contention that the arbitrators were appointed on the basis of joint petition by the parties before the Court below and as such, the present petitioners cannot claim that the Court committed error in accepting the majority award. He further contended that even assuming the fact that one of the Arbitrators signed the award for self and on behalf of another person, the total number of the arbitrators who signed the majority award is 8. ( 9 ) IT was the further contention of Mr. He further contended that even assuming the fact that one of the Arbitrators signed the award for self and on behalf of another person, the total number of the arbitrators who signed the majority award is 8. ( 9 ) IT was the further contention of Mr. Bhattacharjee that if there is difference of opinion amongst the Arbitrators, the award given by the majority Arbitrators would be accepted. As such, Mr. Bhattacharjee contended that the Trial Court and subsequently the Appellate Court did not commit any mistake in accepting the award given by the majority arbitrators. ( 10 ) IT should be stated here that Mr. Bhattacharjee in course of strenuous argument challenged the maintainability of the instant revisional application. It was his contention that appeal lies before the Supreme court as per provision of 39 (2) of the Act and, this Court cannot invoke its revisional power under Section 115 of the Civil Procedure Code. ( 11 ) IN other words, it was the contention of Mr. Bhattacharjee that as there is specific provision for preferring appeal before the appropriate forum against the impugned order, the High Court should not invoke its power under Section 115 of the Civil Procedure Code. ( 12 ) LEARNED Counsel for the petitioner relied upon the following cases:- (i) Reserve Bank of India v, S. S Investments and Ors. , reported in 1992 (4) SCC 671 . (ii) In re: Probodh Kumar Sarkar, Arbitrator v. Union of India, reported in 1956 CWN 436. ( 13 ) ON the other hand Mr. Bhattacharjee relied upon the following cases:- (i) Miss. Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, reported in AIR 1976 SC 2446 . (ii) Ramtaran Das v. Adhar Chandra Das and Ors. , reported in air 1953 CAL 646 ; (iii-) Bajjuri Ramakistam v. Bhoopati Somalingam and Ors. reported Tn AIR 1962 AP 492 ; (iv) The Union of India v. The Mohindra Supply Co. , reported in AIR 1962 SC 256 ; (v) Ariyur Mohammad Habeebur Rahman and Ors. v. Ansuri. Varamma and,ors. , reported in AIR 1974 AP 113 ; (vi) State of West Bengal v. A. K. Ghosh and Bros. , reported in air 1975 Calcutta 227; (vii) Kunta Malla Reddy v. Soma Srinivas Reddy and Ors. , reported in AIR 1978 AP 289 (viii) Oriental Fire and General Insurance Co. v. Ansuri. Varamma and,ors. , reported in AIR 1974 AP 113 ; (vi) State of West Bengal v. A. K. Ghosh and Bros. , reported in air 1975 Calcutta 227; (vii) Kunta Malla Reddy v. Soma Srinivas Reddy and Ors. , reported in AIR 1978 AP 289 (viii) Oriental Fire and General Insurance Co. Ltd. v. Murlidhar gopikissen Pvt. Ltd. , reported AIR 1985 Calcutta 301; (ix) Securities and Exchange Board of India v. Arihant Cotsyn ltd. and Ors. , reported in 2005 (13) SCC 498 ; (x) State Bank of India v. Allied Chemical Laboratories andanr. , reported in 2006 (9) SCC 252 ; (xi) Hazi Rahmetulla v. Chaudhari Vidya Bhuban, reported in air 1963 Allahabad 602, ( 14 ) IT should be stated here that main contention of argument of mr. Basu learned Counsel for the. petitioner was that the act of the Umpire in casting his;vote in favour of the majority award is nothing but misconduct and as such the said award has become illegal. ( 15 ) MR. Basu in course of his strenuous argument challenged the power of the Umpire on the basts of statute and accordingly it was submitted by him that without having any power to sign over the award as an Arbitrator he did the same exceeding his power and as such the said award, in. the strict sense of law is illegal and acceptance of the same by the learned Munsif is without jurisdiction. It was the further contention of mr. Basu that the said fact has been ignored by the learned Munsif and affirmation of the said order by the learned Additional District Judge is also to be treated as erroneous and as such this revisional Court with its power under Section 115 of the Civil Procedure Code should set aside the award and direct the learned Trial Judge to refer the matter again before the Arbitrators to pass fresh award. ( 16 ) IT should be stated here that in course of hearing, learned counsel for the parties confined their argument with respect to law points only. The learned Counsel never went through the fact of the case. ( 17 ) I have already mentioned that Mr. Basu learned Counsel for the petitioner challenged the award mainly on the ground of misconduct on the part of the Umpire. The learned Counsel never went through the fact of the case. ( 17 ) I have already mentioned that Mr. Basu learned Counsel for the petitioner challenged the award mainly on the ground of misconduct on the part of the Umpire. He drew the attention of the Court to Section 10 of the Arbitration Act, 1940 specially Section 10 (3) and on the basis of the same, he contended that the role of the Umpire will hot come into play unless the arbitration agreement provides for the same and also when there is disagreement in between the Arbitrators. ( 18 ) ADMITTEDLY, in the instant case 16 persons were appointed as arbitrators and another person was appointed as Umpire. ( 19 ) IN course of his argument Mr. Basu drew the attention of the court to Section 30 of the Act and on the basis of the same, he contended that the award has been challenged as per provision of Section 30 (a) of the said Act. This plea was taken by Mr. Basu on the ground that though the Umpire had no authority to sign over the award as an Arbitrator, he did the same and thereby violated the legal ethics making the said award illegal. In other words, it was the contention of Mr. Basu that the said act on. the part of the Umpire is nothing but misconduct. As such, the Court below ought to have considered the said position and should not have accepted the award. ( 20 ) RE also drew the attention of the Court to the provision of Section 33 of the said Act and on the basis of the same he contended that he challenged the said award as per provision of Section 33 of the said Act and the Court without considering the entire aspect of the case rejected the prayers. ( 21 ) MR. Basu relied upon the case in between In re: Probodh Kumar sarkar, Arbitrator v. Union of India, reported in 1956 CWN 436, head note runs as follows:- "if there is dis-agreement between the Arbitrators, there is no award and the jurisdiction of the Umpire is attracted. In the absence of a contrary provision in the arbitration agreement the Umpire must adjudicate upon the whole case even if the Arbitrator disagree on any point" ( 22 ) ON the basis of said reported case, Mr. In the absence of a contrary provision in the arbitration agreement the Umpire must adjudicate upon the whole case even if the Arbitrator disagree on any point" ( 22 ) ON the basis of said reported case, Mr. Basu learned Counsel for the petitioner contended that the Umpire will adjudicate upon the whole case, if it is found that there is disagreement amongst the Arbitrators. ( 23 ) IN the instant case as many as 16 Arbitrators were appointed on the basis of joint petition by the parties. In'that joint application the parties agreed that if there ts difference of opinion amongst the Arbitrators, the majority view would be accepted. As such, the said case law will not help "mr. Basu's client: ( 24 ) MR. Basu also relied upon the case in between Reserve Bank of india v. S. S. Investments and Ors. , reported in 1992 (4) SCC 671 . ( 25 ) ON perusal of the said case it is clear that fact of the said case was different and in my humble opinion the said case will not also help mr. Basu's client. ( 26 ) ON the other hand Mr. Bhattacharjee, learned Counsel for the opposite Parties challenged the instant revisional application mainly on the ground of maintainability. He challenged the maintainability of the case oh the ground that as per Section 39 (2) of the Act, second appeal lies before the Hpn'ble Supreme Court and as such the instant revisional application is not maintainable. 'the said plea was taken by mr. Bhattacharjee as against the orders of the learned Trial Judge first appeals were preferred whose numbers have been mentioned earlier and the said appeals were dismissed and the orders of the learned Trial Judge were affirmed. ( 27 ) IT was contended accordingly on behalf of the opposite parties that as there was specific provision in the statute for preferring second appeal before the Hon'ble Supreme Court, the present revisional applications are not maintainable without availing the said opportunity. In support of his contention he relied upon the following cases:- (i) Miss. Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, reported in AIR 1976 SC 2446 . (ii) Bajjuri Ramakistam v. Bhoopati Somalingam and Ors. , reported in AIR 1962 AP 492 , (iii) The Union of India v. The Mohindra Supply Co. , reported in AIR 1962 SC 256 . . Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, reported in AIR 1976 SC 2446 . (ii) Bajjuri Ramakistam v. Bhoopati Somalingam and Ors. , reported in AIR 1962 AP 492 , (iii) The Union of India v. The Mohindra Supply Co. , reported in AIR 1962 SC 256 . . (iv) Ariyur Mohammad Habeebur Rahman and Ors. v. Ansuri varamma and Ors. , reported in AIR 1974 AP 113 (v) Kunta Malla Reddy v. Soma Srinivas Reddy and Ors. , reported in AIR 1978 AP 289, (vi) State Bank of India v. Allied Chemical Laboratories and Anr. , reported in 2006 (9) SCC 252 . ( 28 ) IN those cases, the Hon'ble Court came to the conclusion that as there is provision for appeal against the impugned order, the High Court shall not invoke its power under civil revisional jurisdiction. ( 29 ) AS the same principle was taken in those cases, I do not find it necessary to discuss those cases separately. ( 30 ) I have already stated that in the instant case Mr. Bhattacharjee, learned Counsel for the opposite parties took the specific plea that after first appeal was dismissed, the present petitioners had the option to prefer second appeal before the Hon'ble Supreme Court as per Section 39 (2) of the Arbitration Act, 1940. As the present petitioner did not opt for the same, they cannot get the Same remedy before this Court under civil revisional jurisdiction. ( 31 ) IT is dear from Section 39 (2) of the Act that the petitioners had alternative remedy by preferring second appeal before the Hon'ble supreme Court but they did not opt for the same. In view of the decisions as mentioned earlier, I am of clear opinion that this Court, under no circumstances should invoke its revisional power and set aside the order impugned as there was specific provision for second appeal before the hon'ble Supreme Court. ( 32 ) LET us now come to other pleas as raised by Mr. Basu. ( 33 ) I have already stated that he challenged the order mainly on the ground of misconduct on the part of the Umpire as he signed on the award passed by the majority of the Arbitrators. Mr. ( 32 ) LET us now come to other pleas as raised by Mr. Basu. ( 33 ) I have already stated that he challenged the order mainly on the ground of misconduct on the part of the Umpire as he signed on the award passed by the majority of the Arbitrators. Mr. Basu challenged the said award on the ground that under the Arbitration Act, 1940 the Umpire cannot act as Arbitrator - he has only the power to adjudicate upon the whole case if it is found that there was dis-agreement in between the Arbitrators. ( 34 ) MR. Bhattacharya very frankly conceded that as per the statute, the Umpire has no power to sign over the award as an Arbitrator. At the same time, Mr. Bhattacharjee contended that for that act on the part of the umpires the Court, under no circumstances can come to the conclusion that it was misconduct on the part of the Umpire. For this he relied upon the case in between State of West Bengal v. A. K. Ghosh, reported in AIR 1975 Calcutta 227. He relied upon Paragraphs-17 and 18 of the said reported case:- "17. It is said that it does not appear from the said award of ' the Arbitrator how much he allowed for interest and how much for the cost of materials. It is contended that the failure of the Arbitrator to specify the amount on each item of claim particularly as to interest and cost of materials, is an error of law apparent on the face of the award. It is not the case of the appellant that the Arbitrator has not decided all the matters in dispute between the parties but the complaint of the appellant is that the Arbitrator has not dealt with each item of the claim of the respondent but has made a consolidated award. The reference which was made by the Court did not require the Arbitrator to give the decision separately on each item of claim. The matters in difference between the parties were referred to the arbitrator and if the Arbitrator had disposed of all the matters without specifically and separately deciding each matter, we do not think that the Arbitrator has committed any illegality. The matters in difference between the parties were referred to the arbitrator and if the Arbitrator had disposed of all the matters without specifically and separately deciding each matter, we do not think that the Arbitrator has committed any illegality. In Reminder Singh v. Mohinder Singh, AIR t940 Lah 186, it has been held that an arbitrator is not bound by the technical rules of procedure which the court must follow, nor need he record separate findings on the various points on which the parties are at issue, or write a reasoned judicial decision. All that he is required to do is to give an intelligible decision which determines the rights of the parties in relation to the subject-matter of the reference. In Sm. Padmabati Paul v. Pannalal paul, AIR 1959 Cal 156 ; P. C. Mallick. J. has taken the same view, namely, that where the issues are framed by the Arbitrator in the proceedings before himself, the law does not require the Arbitrator to answer each one of the issues, and the failure to answer the issues does not amount to misconduct. In our opinion, also the failure of the Arbitrator in not dealing with each item of the claim separately does not make the award illegal and invalid and the Arbitrator cannot also be held to be guilty of misconduct. 18. The last point that remains to be considered in the alleged misconduct of the Arbitrator in accepting the remuneration from the respondent even before the making of the award. The point has not been taken in the Court below. We do not think that there is any substance in the point. The respondent made an application before the Court for payment to the Arbitrator, his remuneration. Although no order was passed by the Court authorizing the respondent to make the payment, the respondent paid the remuneration of the arbitrator on the eve of the award being made. In the absence of any allegation as to the mala fide intent of the Arbitrator it is difficult to hold that the Arbitrator misconducted himself by accepting his remuneration from the appellant (respondent-?) as illegal gratification which induced him to make an award in favour of the respondent. We would, accordingly, reject this contention of the appellant. No other point has been argued on behalf of the appellant in the appeal. We would, accordingly, reject this contention of the appellant. No other point has been argued on behalf of the appellant in the appeal. " ( 35 ) HE also relied upon the case in between Ramtaran Das v. Adhar chandra Das and Ors. ,'reported in AIR 1953 Cal 646 , head note 'e', which runs as follows:-Where the facts indicated that the final award embodied a decision by the arbitrators as a whole, the mere fact that one of the arbitrators did not sign the final award, did not render the award invalid. If a contrary view is taken, the minority would be able to frustrate a decision reached by the majority of the Arbitrators which according to the arbitration agreement, was binding on all of them. Case law referred. ( 36 ) ON the basis of the said judgment it was contended by Mr. Bhattacharjee that mere signing over the award by the Umpire will not vitiate the award and as such the plea taken by Mr. Basu cannot be accepted. ( 37 ) I have also stated earlier that Mr. Basu took the specific plea that the Umpire had no power to sign over the award. Mr. Basu also took the plea that in the Arbitration Act, 1940 there is no provision that one arbitrator can delegate his power to other Arbitrator. This plea was taken as one of the Arbitrator namely Oli Md. signed for self and also on behalf of Hafiz All Khan. ( 38 ) MR. Bhattacharjee contended that Oli Md. signed on behalf of hafiz Ali Khan as the said Hafiz AH Khan informed the Court that he authorized Oli Md. to sign on his behalf. ( 39 ) AS there is no provision in the Arbitration Act, 1940 authorizing one Arbitrator to sign on behalf of another, the said permission cannot be treated as a valid one ( 40 ) HOWEVER, Mr. Bhattacharjee entended that it was the mandate of the parties on the basis of their joint application that majority view of the Arbitrators would be accepted. The majority view of the Arbitrators was accepted by the Court and it is seen from the record that in all 10 persons signed in the said majority award including the Umpire. In the minority award, 7 Arbitrators signed. The majority view of the Arbitrators was accepted by the Court and it is seen from the record that in all 10 persons signed in the said majority award including the Umpire. In the minority award, 7 Arbitrators signed. ( 41 ) EVEN assuming the fact that the Umpire had no authority to sign over the award and Oli Md. was not legally entitled to sign on behalf pf hafiz Ali Khan, the Court can come to the conclusion that the total number of Arbitrators who signed the said award would be eight. ( 42 ) ON the other hand the other award was signed by seven arbitrators. ( 43 ) IT is therefore, clear that the award alleged to be by the majority member of the Arbitrators was signed by 8 persons. In that case, the said award is to be-treated as the award passed by the majority of the Arbitrators. ( 44 ) WE must keep it in mind that the cases were of the year 1969 and 1970 and so long the arbitration proceeding was going on, there was no objection regarding functioning of the Umpire by any of the parties. After the award was passed and when the same went against the present petitioner, they filed the application before the Court below for setting aside the order of award. ( 45 ) THE orders passed by the learned Trial Judge which was subsequently affirmed by appellate Court clearly go to show that the said courts considered all the pleas which were raised before them and thereafter they passed the orders. ( 46 ) IN this connection, I must refer to the case reported in AIR 1985 calcutta 301. ( 47 ) ON the basis of the same, I am also of clear opinion that as the umpire enjoyed the confidence of the parties so long the award was not passed, the present petitioners cannot take the plea that there was misconduct on the part of the Umpire. ( 48 ) AT the same time the principle as laid down in the case reported in AIR 1963 Allahabad 602, Hazi Rahmetulla v. Chaudhari Vidya Bhuban is to be accepted, ( 49 ) THIS Court cannot ignore the finding of the Hon'ble Supreme court in the case reported in AIR 1975 SC 230 (Head Note 'b' ). ( 48 ) AT the same time the principle as laid down in the case reported in AIR 1963 Allahabad 602, Hazi Rahmetulla v. Chaudhari Vidya Bhuban is to be accepted, ( 49 ) THIS Court cannot ignore the finding of the Hon'ble Supreme court in the case reported in AIR 1975 SC 230 (Head Note 'b' ). ( 50 ) CONSIDERING all the circumstances and materials-on-record, i am also of clear opinion that the instant revisional application is devoid of any merit and is also not maintainable. ( 51 ) AS such, this revisional application is dismissed on contest but without any costs. Urgent xerox certified copy of this order be given to the parties within 10 days from the date of this order on proper application.