KANTA SURESH SIPAHIMALANI Vs. VISHNU TULSIDAS SIPAHIMALANI

JUDGEMENT

(1.) BOTH these petitions arise out of same proceedings pending before Arbitrators and as such can be disposed of by this common order.

(2.) ARBITRATION Petition No.239 of 1997 has been filed by the respondent before Arbitrators for extension of time to make Award, while Arbitrating Petition No.242 of 1997 has been filed by the claimant before Arbitrators for superseding arbitration. Necessary facts for the purpose of disposal of these two petitions areas follows: On 20th October 1985, a Deed of Partnership was executed between the parties and one Rajan Tulsidas Sipahimalani, to carry on business of running a Restaurant. The business was carried on in the name of M/s Cactus Restaurant and Bar, situate at Shanti Centre, Sector 17, Vashi, New Bombay. Subsequently, Rajan Tulsidas Sipahimalani retired from the partnership and business was continued by the present parties. In connection with the said business dispute arose and, therefore, it appears that the petitioner in Arbitration Petition No.242 of 1997 Vishnu Tulsidas filed Special Civil Suit No.658 of 1990 in the Court of Civil Judge, S.D., Thane, for a declaration that the partnership stood dissolved with effect from 22nd October, 1990. On the first day of the hearing of the said suit, petitioner in Arbitration Petition No.239 of 1997, Mrs.Kanta Sipahimalani appeared and filed an application under section 34 of the Indian Arbitration Act, 1940 invoking arbitration clause and asking for stay of the suit. In order to avoid confusion, parties hereto shall be referred to by their names instead of their character as petitioner or respondent. It appears that the Joint Civil Judge, S.D., Thane allowed the application of Mrs. Kanta for stay of the suit on 25th September 1992. Against that order, writ petition No.1322 of 1993 was filed in this Court and that petition came to be dismissed. As per arbitration clause in the agreement of partnership, each party was to appoint arbitrator of his choice. Accordingly, Mrs.Kanta nominated Mr. Justice M.N. Chandurkar, retired Chief Justice of the Madras High Court as her Arbitrator and Vishnu was called upon to nominate his Arbitrator. Vishnu nominated one Mr.P.D. Desai as his Arbitrator but did not supply his address. There was correspondence in that behalf but ultimately Vishnu did not furnish address of Mr. P.D.Desai and, therefore, Arbitration Petition No.89 of 1993 was filed by Mrs.Kanta under section 8 of the Indian Arbitration Act. It appears that Justice Dhanuka of this Court on 28-6-1993 by his order appointed Mr.Justice M.N.Chandurkar as sole Arbitrator. However, subsequently, because of certain allegations levelled by Vishnu Justice Chandurkar withdrew from the arbitration. Thereafter, Vishnu filed Arbitration Petition No.94 of 1996 for appointment of Arbitrator and in that petition he made an application for appointment of the Receiver etc. That petition came to be decided by Mrs.Justice Baam on 4th June 1996 and by order Mrs.Justice Baam dismissed the petition as regards prayer (b)) and (c) , but as regards appointment of arbitrator; Justice Lentin came to be appointed as sole arbitrator and four months time was specified for making the award from the date of entering upon reference. Certain other incidental directions were also given.

(3.) ACCORDINGLY , parties filed their statements of claim before Justice Pendse and Mr.Dama. Certain meetings were held by the said Arbitrators and ultimately on 24th January 1997, issues came to be framed by the Arbitrators and six applications filed by Vishnu came to be disposed of by the Arbitrators by passing orders thereon. Minutes of the meeting held on 24th January 1997 are annexed to the petition No.242 of 1997, and also to affidavit-in-reply filed to the petition by respondent-Kanta. Initial period granted to the Arbitrators to make the award as per order of Mrs.Justice Baam was maintained and as such these two Arbitrators were to make award within four months from the date they entered upon reference. It appears from the order passed by the Arbitrators that both the parties were to make certain compliances within a stipulated period. It is then common ground that the period for making award came to be extended till the end of August 1997. However, award could not be made and, therefore, these two petitions are filed.