KISHAN MIMANI Vs. INDU KOCHER

JUDGEMENT

(1.) BOTH these appeals would relate to a common judgment and order dated October 11, 2012 passed by the learned Single Judge under Section 20 of the Arbitration Act, 1940. Since the plea of maintainability was taken in both the appeals we heard the parties at length on the preliminary issue that would be disposed of by the foregoing judgment and order.

(2.) BHARAT Industries and Commercial Corporation was a partnership firm. The firm was represented by two groups being Maheshwaris and Kocher group. The parties fell out resulting in dispute and differences that were referred to two arbitrators in August 1984. As a result, proceeding was to be governed by the old Arbitration law being the Arbitration Act, 1940. Maheshwaris filed suit inter alia, claiming that the claim of the Kochers became barred by limitation and there could not be any further dispute to go to arbitration. They also contended, Kochers assigned their share in favour of one Omprakash who, in turn, transferred to one Kishan Mimani who also filed a suit for specific performance of the agreement. The reliefs claimed in Mimani suit would include a declaration that the defendants did not have any right, title and interest in the dissolved partnership firm. Both the suits were pending. There were protracted litigations. Attempt to stall the hearing of the suits failed on the ground that Section 8 of the new arbitration law being the Arbitration and Conciliation Act, 1996 would have no application. Kochers approached the learned Judge on the ground that arbitration agreement was still valid and subsisting. They already appointed their nominee. The Maheshwaris failed to appoint their nominee, although asked for. Hence, they were entitled to have an independent arbitrator to act on behalf of the Maheshwaris. The learned Single Judge by a judgment and order dated October 11, 2012 appointed Mr. Pradosh Kumar Mallick, a senior advocate of this Court to act as co-arbitrator coupled with a direction upon the arbitrators to appoint an umpire.

(3.) HENCE , the present appeal would be maintainable. He distinguished the decision in the case of Consultants for Industries Private Limited (Supra) by contending that the issue before the Division Bench would relate to revocation of authority of arbitrator. He would rather rely upon the Division Bench decision in the case of Fertilizer Corporation of India Limited –VS- M/s. Domestic Engineering Installation reported in All India Reporter 1970 Allahabad Page- 31 wherein on a similar issue the Division Bench of the Allahabad High Court held the appeal of the like nature maintainable. Mr. Utpal Bose, learned counsel appearing for Mimani adopted the submission made by Mr. Chatterjee and further contended, Mimani was not a party to the arbitration agreement. However, direction for arbitration would seriously affect his suit that was to be heard analogously with the pending suit filed by Maheshwaris against Kochers involving the identical controversy. Once the Division Bench earlier declined to stay both the suits and directed hearing of both the suits analogously direction for arbitration would not only be superfluous but also may result in conflict of decisions that too, in absence of Mimani who was a necessary party as recognized by the Court of Appeal.