SUGATA MOHAN BOSE Vs. BHAGIRATH PASARI

JUDGEMENT

(1.) The two petitions are by the same petitioner for challenging arbitral awards of December 30, 2005 in references arising out of similar agreements of January 18, 1983. The prayers for annulment of the arbitral awards are fashioned under Sections 30 and 33 of the Arbitration Act, 1940.

(2.) The facts are not in much dispute. The two agreements of January 18, 1983 were in respect of two plots at premises No. 52 Amherst Street; 12 members of the Bose family agreed to sell the two plots to two sets of Pasaris. The agreements recorded the initial payments tendered by the vendees. The agreements obliged the vendors to obtain the clearance that was then necessary under the Income-Tax Act, 1961. Conveyance was to be completed within a period of six months from the date of the agreements. Such agreements contained identical arbitration clauses wherein two arbitrators were named. The arbitration agreements were invoked by the two vendees on January 31, 1985 by making written requests to the two joint arbitrators to adjudicate upon the disputes between the parties. During the pendency of such references, between October 30, 1985 and March 14, 1986, the deeds of conveyance covering the undivided interests of all the co-owners of the properties were executed in favour of the agreement-holders or their nominees, save by Nripendra Mohan Bose who died on July 3, 1984.

(3.) On April 3, 1987 the vendees called upon the petitioner herein, as the executor and sole beneficiary under the will of Nripendra, to execute the deeds of conveyance pertaining to testator Nripendra's shares in the two plots. On April 22, 1987 the petitioner denied knowledge of any agreement or any part payment received thereunder by Nripendra. The petitioner then filed Suit No. 875 of 1988 in this court against the two Pasari agreement-holders and the other Bose family members seeking to exercise a right of pre-emption to purchase the undivided shares of the other co-owners. By this time, the Pasaris had filed two petitions under Section 28 of the 1940 Act for enlarging the time for making the awards and such petitions had been disposed of on January 15, 1988. It is evident that the petitioner herein was a party to the Section 28 proceedings. The petitioner applied for the orders dated January 15, 1988 to be recalled on the ground that his consent to refer the matters to the sole arbitration of Mr P. K. Khaitan as recorded in the relevant orders was not accorded by him. Upon such essay failing, the petitioner carried the resultant orders of January 25, 1990 in appeal. The appeals were disposed of by an order of February 22, 2001 by taking on record the terms of settlement executed by the parties. Such terms appointed the arbitrator who has passed the awards now assailed and contained the following clause: