NARAYAN PROSAD BHOTICA Vs. KALAWATI SETHANI

JUDGEMENT

(1.) This is an application under Section 5 of the Arbitration Act to revoke a submission. This reference to arbitration was made in a suit instituted by the Plaintiff on September 5, 1951. The suit is for partition of the joint family properties and in the said suit a number of declarations have been asked for and injunctions claimed. By an order dated July 21, 1952, the disputes amongst the parties were referred So the arbitration of Mr. B.D. Jhunjhunwala, a partner of Messrs. P.D. Himatsingka and Company a firm of solicitors representing one of the parties in the same suit. Pursuant to the reference Mr. Jhunjhunwala entered upon the reference and held two meetings-one on July 28, 1952 and the other on August 2, 952. The arbitration not having been completed within four months, by an order made by this Court on January 19, 1953, time for filing the award was extended by six months. It appears that on March 14, 1953, another meeting was held by the arbitrator but the proceeding was not completed within the time allowed by the Court. On June 17, 1953, a second application was made for extension of time before Sarkar, J. This application for extension was opposed by Grobindram Bhotica, the Defendant No. 4 who is the Petitioner before me. Two grounds were taken in opposing this application for extension of time. First ground was that the arbitrator was guilty of in ordinate delay. The second ground was that the arbitrator Mr. Jhunjhunwala joined the Board of Directors of Bhotica Trading Company being a private company promoted by Onkarmall Bhotica, clients of Messrs. P.D. Himatsingka and Company and substanially owned by him. Sarkar, J. held that the delay was due the fact that the parties had agreed that the arbitrator might cold his hands till the parties arrived at a settlement. He noted that in the meantime the arbitrator did appoint a surveyor and valued that did in fact survey and value the property and submit is report of valuation. Sarkar, J., further, held that the arbitrator had reason to think that the parties wanted to proceed with the arbitration. In the result he condoned the delay in making the award and extended the time for filing the award till January 15, 1955. Sarkar, J', expressed his opinion that the other point, sought to he raised in the application for extension ought properly to he raised in an application for revocation and not hy way of objection to the extension of time. Thereupon the present notice was taken out by the Petitioner Gobindran Bhotica.

(2.) The learned Standingl Counsel with Mr. Nirmal Dey appeare in support of the petition and both of them argued the case record my appreciation of the fairness with which the Learned Counsel placed the case of their client. They made it clear the they make no allegation against Mr. Jhunjhunwala, the arbitrator. The arbitrator was a senior and respectable attorney of this Court and is a partner of a reputed firm of solicitors. Their client entered into the arbitration agreement with full knowledge of the fact that the arbitrator was a partner of Messrs P.D. Himatsingka and Company, attorneys for Onkarmall Bhotica an attorneys for him in this very suit. They had confidence that in spite of this fact, the arbitrator would conduct the arbitratior fairly and properly without any bias towards their client and would make a fair award. But subsequent to the reference Mr. Jhunjhunwala had become a director of the private company promoted by Onkarmall and as such director would be entitled to substantial financial advantage as will appear from Article 42 the articles of association of the said company. Under the said articles, a director is entitled to a remuneration of not exceeding Rs. 250 per meeting whether attended or not. A director would be entitled to a further remuneration for extra work done special service rendered. This fact has made the Petitioner apprehensive that the arbitrator may be biased in favour Onkarmall to his prejudice and he would not get justice in the hands of the arbitrator. It is pleaded in the petition that be reason of such appointment as a director of the said company the arbitrator has become unfit to act judicially and make a fair an unbiased award. It is stated that there is reasonable apprehension that the Petitioner may be gravely prejudiced by the award to be made by Mr. Jhunjhunwala as arbitrator and in consequence there would be failure of justice. On this allegation an on the allegation of delay the Petitioner claims to revoke the submission.

(3.) It is to be noticed that the Petitioner's interest in the properties to be partitioned is 1 anna. The petition is been opposed by Onkarmall and two other parties. Their total interest in the joint family properties is 12 annas. The remaining parties owning the balance of 3 annas share are not appearing in the application. Two opposing parties other than Onkarmall state that they feel no apprehension that the arbitrator would be biased in favour of Onkarmall. One of them Kalabati Sethani trough her counsel Mr. P.E. Das submitted before me that are arbitrator is a family friend of the parties and as such she still have the advantage of appearing before him personally in the arbitration proceedings and make her submission. She leads that she should not be deprived of this advantage.