RABINDRA KUMAR LOHIA Vs. DURGADUTT LOHIA

JUDGEMENT

(1.) THE parties to this application excluding the respondents Nos. 33, 34 and 35 were members of a Hindu Mitakshara Joint Family. On or about 26. 9. 75, the petitioner instituted a partition suit being title suit No. 185 of 1975 (Rabindra Kumar Lohia v. Durgadutt lohia and Ors.) in Alipore court. Thereafter at the instance of the friends and relatives, the parties to that suit entered into an arbitration agreement in writing on 4. 11. 76 to refer all the disputes in suit to the arbitration of the respondents nos. 33, 34 and 35 herein. The said partition suit No. 185 of 1975 was withdrawn. The respondents Nos. 33, 34 and 35 as arbitrators entered upon the reference and held several sittings. The time to make the award by the Arbitrators was extented by mutual consent several times upto 15. 10. 78. During the pendency of this reference there were deaths and the consequential substitutions of the legal heirs and representatives of the deceased parties. The time to make the award having again expired, the petitioner took out an application under section 28 of the Arbitration Act which was contested by the respondents Nos. 1 to 32 herein. At the hearing of that application it was submitted on behalf of the respondents therein that the Arbitrators were not willing to act any further. Under the circumstances, I directed the respondent No. 34 herein to ascertain from, the other two arbitrators whether they were willing to act or not. Pursuant to that direction the respondent No. 34 informed me on 16. 7. 79 that all the three arbitrators were willing to act. I therefore, by an order dt. 16. 7. 79. extended the time to make the award peremptorily till 13. 8. 79. The arbitrators did not make any award within the extended time. Hence this application by this petitioner for further extension of time to make the award or alternatively for revocation of the authority of the arbitrators and in the further alternative for super session of the arbitration agreement dated 4. 11. 76. It is alleged in paragraph 10 of this petition that after the last extension of time the Arbitrators held altogether 4 sittings, and all such sittings were attended to by all the parties and/or their respective advocates. Ultimately on 9)13. 8. 79, viz. on the last date of the extended period, the Arbitrators by a letter intimated the parties as follows :--

(2.) TO contest the present application the respondent No. 1 Durgadutt lohia filed his affidavit -in- opposition affirmed on 7-11-79 and the respondent no-, 5 Gourisankar Lohia affirmed his affidavit -in- opposition on 3. 11. 79, Other respondents did not use any affidavit but appeared at the time of' hearing. The arbitrators did not file any affidavit -in- opposition and did not contest the application. The respondents Nos. 3 and 4 were supporting the petitioner.

(3.) DURING hearing, Mr. Bhabra, counsel for the petitioner submitted that he would not press prayers for extension of time or for supersession of the arbitration agreement. But he will press the prayer for removal of the arbitrators and appointment of new ones. The joint arbitrators by refusing to make the award within the extended time had failed to comply with the peremptory order dated 16. 7. 79 and failed to discharge their duties as arbitrators. Their conduct therefore, amounted to legal misconduct. Hence they were liable to be removed under section 11 of the Arbitration Act and on their removal, the court would appoint a sole arbitrator under the provisions of section 12 (1) of the Act. '