RINA DHAR Vs. BANI DHAR

JUDGEMENT

(1.) AMARENDRANATH Dhar established a business of paper by the name of "Imperial Paper House ". He took his nephew Kamal Kumar Dhar in his business to assist him. His sons were minor, hence he got assistance from his nephew. Amarendranath executed a registered Deed of Gift on August 12, 1961 in favour of Kamal Kumar as also his two sons by which all the three became the owner of the said business that was converted into a partnership. Since then, three partners carried out the business. Pertinent to note, within a few months of such partnership being entered into Amarendranath died leaving him surviving his two sons name above. At that time Rajat was a minor. His interest was being looked after by Kamal Kumar as claimed by him. Kamal Kumar claimed, he arranged marriage of the daughters of Amarendranath out of the business income as also brought up Rajat and Adhar as guardian of the family. According to Kamal Kumar, he was running the show in absence of Amarendranath at the relevant time. On Rajat becoming major the farm was reconstituted by admitting him into the partnership. In course of time Kamal reached the advanced age and was ailing.

(2.) ON October 20,1983 Kamal Kumar wrote a letter in Bengali addressed to Adhar making serious allegations against two brothers as to the functioning of the farm to his exclusion. If we go through the letter in detail we would find the same as an emotional out-burst rather than a business letter. In the letter Kamal Kumar expressed his inability to take active part in the business for last three years because of his advanced age and ailment. At the end he expressed his intention to quit without making any claim. He also observed, the said letter should be treated as a notice expressing intention to resign. He, however, asked the Dhar brothers to react to his letter and communicate their version. It is nobody 's case, Dhar brothers replied to the same. Kamal Kumar died after about five years. He died on January 7, 1988 leaving him surviving his three daughters being the appellant and the Respondent No. 6 and 7. The appellant also claimed that during this five years period Kamal Kumar was treated as a partner. He used to sign the Balance Sheet, Income Tax Returns and other statutory documents on behalf of the farm. Even a notice of demand from the Income Tax department demanding a sum of Rs. 3064 for the assessment year 1987-1988 was served on March 21, 1988 on Kamal Kumar as a partner. After the death of Kamal Kumar, his daughters claimed share in the partnership farm in accordance with the provisions of the Deed of Partnership. Rajat and Adhar being the surviving partners, however, declined on the ground that Kamal Kumar had resigned from the partnership by the said letter dated October 8, 1983. Hence, his daughters were not entitled to any share in the partnership, far to speak of their inclusion. Rajat and Adhar filed a suit being No. 428 of 1991 inter-alia claiming for a declaration that they were the only partners of Imperial Paper House and the daughters of Kamal Kumar did not have any right to claim share in the said farm. The daughters of Kamal Kumar applied under Section 20 of the Arbitration Act 1940 inter-alia praying for referring the dispute of Arbitration. On their application along with their mother, under Section 34 of the said Act of 1940, the learned Single Judge stayed the hearing of the suit. Shri Joy Saha, an advocate of this Court, was appointed arbitrator. Before the arbitrator the claimants being the daughters of Kamal Kumar produced records to show, Kamal Kumar acted as a partner till his death. The arbitrator published his unreasoned award appearing at pages 114-119 of the paper book. The arbitrator, by his award dated July 27, 1998, directed Rajat and Adhar to pay a sum of Rs. 86258 to Rina, Jagatdhatri and Alpana three daughters and their mother. The arbitrator also awarded interest at the rate of 6% per annum on and from January 8, 1988 until payment of the awarded sum. The arbitrator also held, the heirs of Kamal Kumar would be jointly entitled to 1/3rd share in the tenanted shop room of Imperial Paper House and if it was not possible, they would be entitled to Rs. 4 lacs in lieu of such possession. The arbitrator also held that heirs of Kamal Kumar would be entitled to the ownership of the Ambassador car being WBA6600.

(3.) WE heard the appeal on the above mentioned dates. Mr. Amzad Ali, learned senior counsel appearing for Rina, strenuously contended before us, the arbitrator published an unreasoned award that was not available for judicial scrutiny under the said Act of 1940. In any event, the application for setting aside was barred by the laws of limitation that the learned Judge failed to appreciate. On the settlement, Mr. Ali contended, appellant was interested in a portion of the shop room as awarded by the arbitrator. He referred to the letter of consent given by the landlord appearing at page 100 of the supplementary paper book. He claimed, appellant was entitled to appropriate share of tenancy. Learned counsel appearing for Jagatdhatri supported Mr. Ali. Elaborating his contentions, Mr. Ali demonstrated before us, notice under Section 14(2) said Act of 1940 was served upon Rajat and Adhar on August 19, 1998 whereas the application was filed on September 22, 1998, admittedly after 30 days of receipt of the notice. Hence, the application was barred by laws of limitation. On factual matrix, he referred to Clause 14, 15 and 17 of the Deed of Partnership to show, in case of death or retirement of any partner his heirs would be entitled to be admitted into the partnership. He referred to Section 32, 56 and 63 of the Partnership Act to contend, the letter dated October 8, 1983 could not be construed as resignation within the meaning of the said Act of 1932. According to him, the letter of resignation must be addressed to all the partners and a personal letter to Adhar could not be construed as resignation. He referred to the decision in the case of Sankar Das Naraindass Vs Sita Ram Jawala Parshad reported in All India Reporter 1956 Pepsu Page - 83 to support his contention that the application being barred by time, could not be entertained that too, without being supported by an application for condonation of delay. He referred to Article 119 of the Limitation Act to say, the application for setting aside could only be made within 30 days from the date of receipt of the notice under Section 14(2) of the said Act of 1940. According to him, Section 5 of the Limitation Act would have no application. In any event, no such application was made.