BIJOY BALLAV KUNDU Vs. TAPETI RANJAN KUNDU

JUDGEMENT

(1.) THIS is an appeal against an order of Datta J. dated the 13th December 1963. The facts arc shortly as follows: One Dhanonjoy Kundu was the absolute owner of premises No. 59, Simla Street, Calcutta. He installed a deity in the said premises called Sri Sri Sitalamata. On the 9th July, 1950 he executed a deed of settlement whereby he conveyed and assigned the said premises and a sum of Rs. 500 to trustees, upon certain terms. At the relevant time, the two appellants and the respondent had been acting as trustees. In the deed of settlement, there were various clauses, including Clause 12 which runs as follows:

(2.) TWO of the trustees, being the appellants before us, considered that a dispute had arisen between the trustees and they referred the matter to the arbitrator in terms of Clause 12. The respondent did not concur in it. The arbitrator gave an award. The respondent received a notice dated 14th June 1963 to the effect that judgment will be passed on the 24th July 1963 in terms of the award filed in this Court on 22nd April, 1963. On or about the 16th July, 1963 the respondent made an application to the court for a declaration that there was no arbitration agreement between the parties, for a declaration that the purported award passed by the arbitrator, Kamal Kishor Khettry, filed on 12th June, 1963 was invalid, improperly procured and void, that the said award should be set aside and for such further or other orders as the Court may find fit and proper. This matter came up before the Court below and the learned Judge has held that there was no arbitration agreement between the parties and he has set aside the award. It is against this order that this appeal has been preferred. The position is as follows: Section 2(a) of the Arbitration Act is in the following terms:

(3.) MR. Basak appearing on behalf of the appellants argues that in this case there is an arbitration agreement between the parties. I have therefore asked him to specify the particulars of that agreement and he has given the following particulars: 1. Parties to the arbitration agreement. The two appellants and the respondent. 2. Date of the agreement. Between the death of the settlor in November, 1952 and the date of the letter dated 17th August, 1962, being annexure 'B' to the petition (page 10 of the Paper Book). Cannot specify the date more particularly. 3. Is the agreement in writing? Yes. 4. Identify the written agreement. The written agreement is the arbitration clause in the deed of settlement of 1950. See annexure to the affidavit-in-opposition at page 22 of the Paper Book. This was accepted by the parties by their conduct.