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. 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. Rajat and Adhar filed an application under Section 30 and 33 of the said Act of 1940 inter-alia challenging the award. The learned Single Judge dismissed the application. The Court of appeal set aside the order and remanded the application for setting aside to the learned Single Judge for being heard afresh. The learned Judge heard the matter afresh and ultimately allowed the said application by setting aside the award by His Lordship 's judgement and order dated December 23, 2004 appearing at pages 172-182 of the paper book.

(2.) HENCE this appeal by one of the daughters Rina Dhar. Pertinent to note, Jagatdhatri and Alpana did not contest the proceeding before the learned Single Judge. They initially appeared, however, disappeared subsequently. The appeal appeared from time to time before various Division Benches wherein attempts were made to resolve the dispute amicably as we find from the records. The Division Bench, by judgment and order dated February 23, 2007, recorded that Dhar brothers were agreeable to pay of Rs. 5 lacs to the heirs of Kamal Kumar in full and final settlement of their claim. The learned counsel appearing for the heirs of Kamal Kumar accepted such offer, however expressed his inability to finally accept the same in absence of the other two daughters being not available. We are told, Pay Orders were prepared in the name of the three daughters (their mother died in the meantime). The issue could not be finally resolved despite Dhar brothers applying before the Division Bench for recording of such settlement. They, in fact, revalidated the Pay Orders from time to time. We also adjourned the appeal from time to time when Mr. Ali, learned senior counsel appearing for the appellant expressed his inability to resolve the controversy in absence of other two sisters. We passed an order on September 17, 2012 asking the other two sisters to appear before us. Accordingly, Alpana and Jagatdhatri appeared. Jagatdhatri supported Rina and declined to accept the offer whereas Alpana took her share of Rs. 166667 and gave valid discharge to her sisters and Dhar brothers as well, leaving us with two heirs of Kamal Kumar being Rina and Jagatdhatri claiming 2/9th share in the farm. We heard the appeal on the above mentioned dates.

(3.) MR . Jishnu Chowdhury, learned counsel also appearing for the appellant argued on non-speaking award. According to him, the award was a non-speaking one and the learned Judge could not have interfered with the same. He referred to the judgement and order impugned to show, His Lordship perhaps overlooked the fact that no formal counter claim was ever forwarded to the arbitrator hence, the award could not be faulted on the ground of non consideration of the counter claim. He took us to the counter statement of fact to show, there was no prayer for counter claim made although a passing reference was made to the extent that they had suffered loss to the extent of Rs. 7 lacs approximately in view of siphoning off funds by Kamal Kumar. Regarding the comments of the learned Judge on the amendment of statement of claim, Mr. Chowdhury would contend, the amendment was made for abundant caution. The award was well within the scope of the original statement of claim if one would look at the prayers of the statement of claim at the pre-amendment state and compare it with the award. He referred to the order passed by the learned Single Judge subsequent to the judgement and order impugned wherein the learned Judge passed order observing that the arbitration agreement ceased to have any effect. According to him, the learned Judge after delivering the judgement and order impugned could not have passed such order that too, without bringing the same in the list and upon notice to the appellant. Mr. Haradhan Banerjee, learned counsel appearing for Dhar brothers contended, the controversy stood resolved before the Division Bench as recorded in the order dated February 23, 2007 hence, there could be no further argument of the issue. On the issue of limitation, Mr. Banerjee contended, the learned Single Judge disposed of the application on merit that was remanded back to the learned Single Judge to be heard afresh on merit. The order of the Division Bench sending it on remand on merits, attained finality, as the appellant did not challenge the same before the Apex Court hence, it would be too late in the day to contend, the application was barred by limitation.