Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 813 (CAL)

Bhikhan Chand Baid v. Dipendra Nath Banerjee

2015-09-23

I.P.MUKERJI

body2015
JUDGMENT : I.P. Mukerji, J. The petitioner referred to in this order refers to the original petitioner in AP No 94 of 2004 who died on 26th October, 2013 to his heirs. 2. Order in terms of prayers [a], [b] and [c] of the application [GA No.2344 of 2014]. 3. Yesterday in the facts and circumstances of this case, I had permitted the learned Advocate General to forthwith withdraw the statement that he had made before this court on 30th March, 2004. 4. Today, the matter has come up for further consideration. It could not be disputed by the petitioner in the section 9 application that he had taken any steps whatsoever to start the arbitral reference. The learned Advocate General appearing for the respondents in those proceedings told me that today morning his client had received a document from the petitioner which seemed to be a notice under section 21 of the Arbitration and Conciliation Act, 1996. 5. Mr. Abhrajit Mitra, learned senior advocate for the said petitioner submitted that since his client was now ready and willing to go for arbitration, the injunction granted on 30th March, 2004 should not be vacated and that the parties be referred to arbitration. 6. He referred to Firm Ashok Traders and another v. Gurumukh Das Saluja and others; reported in [2004]3 SCC 1433 : AIR 2004 SC 1433 . 7. It is true that in that case the Supreme Court noted that there was a delay in starting the arbitral reference and ultimately permitted the matter to be referred to arbitration. It also continued the injunction granted earlier. But it appears on examination of the facts of that case that the delay was of not more than one year. 8. Here, the delay is 11 years or so. The Supreme Court in M/s. Sundaram Finance Ltd. v. M/s. NEPC India Ltd., reported in AIR 1999 SC 565 and Firm Ashok Traders v. Gurumukh Das Saluja; reported in [2004] 3 SCC 155 [ AIR 2004 SC 1433 ] has opined that when before starting of an arbitral reference, a party approaches the court with a section 9 application, he gives an undertaking to the court or 'manifests an intention' to start the reference within a reasonable time. If that is not done, the order passed on the section 9 application is liable to be vacated and the said application dismissed. 9. If that is not done, the order passed on the section 9 application is liable to be vacated and the said application dismissed. 9. In no way can the said petitioner escape from the principal enshrined in those judgments. 10. Mr. Abhrajit Mitra, learned senior advocate, however, argued that having started the arbitral reference, his client was entitled to ask for or continuance of the order of injunction. Mr. Advocate General retorted that the purported reference purported to be started by the said petitioner was hopelessly barred by the laws of limitation. 11. In my opinion, there has been an inexcusable delay on the part of the said petitioner in starting the arbitral proceedings. Applying the ratio of the M/s. Sundaram Finance Ltd. v. M/s. NEPC India Ltd., reported in AIR 1999 SC 565 and Firm Ashok Traders v. Gurumukh Das Saluja; reported in AIR 2004 SC 1433 , I am of the opinion that the order of injunction made on 30th March, 2004 and confirmed on 26th July, 2004 is liable to be vacated. 12. Therefore, the orders dated 30th March, 2004 and 26th July, 2004 are hereby vacated. Hence, order in terms of prayer [d] of the application [GA No.2344 of 2014]. 13. But it is also true that whatever may be the worth of the reference a section 21 notice has been issued by the said petitioner. He or they are entitled to take steps in accordance with law, including an application with a prayer for a fresh injunction. 14. Therefore, for a period of three months from date i.e. till 23rd December, 2015, the respondents will notify the petitioner of any intended transfer of the subject property or creation of any encumbrance in respect thereof by giving them 14 clear days' notice at all times except during the puja vacation of this court when the notice period should be four weeks. 15. This application being GA No. 2344 of 2014 is disposed of accordingly. 16. Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.