BIMAL GHOSH Vs. KALPANA MAJUMDAR

JUDGEMENT

(1.) APPELLANTS are owners of a piece of land situated in the town of Siliguri in the District of darjeeling measuring an area of 6 kathas, 9 chhataks. They entered into a development agreement with the respondent whereby it was agreed that the respondent, at her own cost, would construct a building on the said land in question out of which 40% of the constructed area would be handed over to the owners being the appellants and 60% would be retained by the respondent as her share in the property. Under the agreement, if there was any dispute between the parties, those disputes were to be referred to the sole arbitration of one Mr. Arun Kumar sarkar, art advocate of Siliguri Court.

(2.) THE appellants also executed general power of Attorney in favour of the respondent giving her right to do all acts necessary for the purpose of construction, development and sale of the flats after construction on behalf of the appellants. Accordingly a five-storied building was constructed on the said land in question. The respondent also entered into agreements for sale with various intending purchasers including one malabika Sarkar who is also an advocate of siliguri Court. She happens to be the daughter of Sri Arun Kumar Sarkar the named arbitrator. According to the respondent, Mrs. Sarkar wanted certain additions and/or alterations in her flat. The respondent obliged her by doing so which gave rise to the dispute between the appellants and the respondent. According to the respondent, the appellants refused to execute conveyance in favour of Malabika Sarkar on the plea of authorized construction. According to them the sanctioned plan was deviated by the respondent. The appellants referred the dispute to the named arbitrator Shri Sarkar. The respondent, however, did not agree to submit to the jurisdiction of Shri Sarkar on the ground that he had personal interest in the property through his daughter. Moreover, he was also involved in the subject dispute between the parties through his daughter.

(3.) THE respondent filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before this Hon'ble Court. The said application was opposed by the appellants. It was pointed out before the learned single Judge that not only the arbitrator was named in the agreement but also he already entered upon reference as would appear from the minutes of the meeting held by the arbitrator. Considering the fact that the arbitration had already commenced, His lordship dismissed the application made under Section 1j of the said Act of 1996 by judgment and order dated July 5, 2007.