INDRA KUMAR JAIPURIA Vs. LAV KUMAR JAIPURIA

JUDGEMENT

(1.) This is a contempt application moved on behalf of Indra Kumar Jaipuria. I suppose, out of exasperation under extra-ordinary circumstances. The parties are mostly descondants of one Surajmull Jaipuria who died leaving four sons named Sheobux Rai, Hariram, Ganpatrai and Anandram who all died. It appears from the Geneological Table at page 102 of the affidavit-in-reply of Indra Kumar Jaipuria that the petitioner is one of the grandsons of Hariram and Mangturam, defendant No. 4 Rajaram, defendant No. 5 and Sitaram defendant No. 6 are the direct descendants of Anandram, hereinafter described as Mangturam group. Mangturam happens to be the son of Anandram and Sitaram and Rajaram are the sons of Mangturam. The respondent Nos. 1 and 2, Lav Kumar and Kush Kumar are the two minor sons of Rajaram. The only other respondent, Mr. Gurdeo Khemani happens to be the brother-in-law of Mangturam. Admittedly, in 1960 several suits and other legal proceedings were pending in the Calcutta High Court between the members of the said Jaipuria family. The members of the said Jaipuria family wanted to have all their disputes settled and to achieve the said object, on 13th March, 1961, the members of the said Jaipuria family and others entered into an arbitration agreement whereby they referred all their disputes to Mr. B. M. Birla as the arbitrator. On 26th of April, 1961, the litigations were withdrawn without leave to file fresh suits on the same cause of action. On 27th April, 1961, Banwarilal, a grandson of Hariram made an application in the Calcutta High Court for filing the arbitration agreement under section 20 of the Arbitration Act. On 30th May, 1961 the said application was withdrawn. It may be stated here that the descendants of Anandram Mungturam, Sitaram and Rajaram have formed themselves into one group and the descendants of other brothers of Anandram including the petitioner, Banwarilal and one Babulal, forming another group. On 2nd April, 1962 Purshottam Ojha, a party to the arbitration agreement made an application in the Subordinate Judge's Court at Kanpur under the Indian Arbitration Act from a declaration that the arbitration was void and inoperative. In the said application, an injunction was sought restraining the arbitrator and the parties from taking steps thereunder. On 12th May, 1962, Purshottam Ojha obtained an interim injunction restraining the arbitrator and the parties from proceeding with the said arbitration. Thereafter, on 5th January, 1963, Babulal belonging to the petitioner's group made an application before the Kanpur Court and got the said Order dated 12th May, 1962 varied and liberty was given to the parties to move the Court at Calcutta, if so advised. On 11th March 1963, Shilvanti Debi, the widowed daughter-in-law of Ganpatrai for self and on behalf of her minor children made an application to the Calcutta High Court (Award Case No. 75 of 1963) for a declaration that the said arbitration agreement was valid and subsisting and also for extension of time for the arbitrator to make his award and for other reliefs. The said application was heard and disposed of by Mallick, J. on 17th April, 1964. The learned Judge held that by virtue of section 31(4) of the Arbitration Act, the Calcutta High Court has exclusive has exclusive jurisdiction to deal with the said arbitration. The learned Judge, however, did not decide the questions as to whether the arbitrator misconducted himself and whether the arbitrator entered upon the reference and left the matters open for subsequent proceedings. On 24th July, 1964, Mangturam preferred an appeal to the Supreme Court and the Supreme Court, on 22nd September, 1964, passed an ex-parte order staying the arbitration proceedings. Babulal, thereafter, made an application in the Kanpur Court on 29th January, 1965 for vacating the order of injunction dated 12th May, 1962 obtained by Purshottam Ojha belonging to the opposite group. On 29th March, 1965, the Kanpur Court further varied the order of injunction dated 12th January, 1962 as modified by the order dated 5th January, 1963 whereby the parties were given liberty to proceed with the arbitration proceedings, but the arbitrator was directed not to make the award. On 3rd September, 1965, the arbitrator gave notice to the parties for the first meeting to be called on the 6th January, 1966. Thereafter, the statements of facts were filed before the arbitrator. At this stage, on 3rd January, 1966, Mangturam made an application to the Supreme Court for stay of the arbitration proceedings on the ground that charges of fraud were made against him which he wanted to be tried on open court. The said application, however, was dismissed on 25th January, 1966. On 23rd February, 1966 Mangturam's son Sitaram made an application to the Calcutta High Court for revocation of the authority of the arbitrator. But he withdrew the said application on 15th March, 1966 and on the same day filed another application for revoking the authority of the arbitrator. This application is still pending. On 19th March, 1966, one Madan Mohan Ojha, who is alleged to belong to the group of Mangturam, filed a suit in the Bikaneer Court for a declaration that the arbitration is invalid and not binding on him. He contended that he was described as the major in the arbitration agreement. But, in fact, was minor at that time. The Bikaneer Court passed an interim order on the 19th March, 1966 staying the arbitration proceedings. Banwarilal belonging to the petitioner's group moved an application on 22nd March, 1966 for staying all the operation of the order of the Bikaneer Court before the Calcutta High Court which thereafter passed an interim order to that effect. On 25th January, 1967, Mangturam's appeal to the Supreme Court against the judgment of Mallick, J. dated 17th April, 1964 was dismissed as withdrawn. By the order disposing of the said appeal the time for the arbitrator to make his award was extended till 25th May, 1967. Then comes an important date which is 11th February, 1967 when an application (Misc. Arbitration Case No.2/70 of 1967) was made in the Kanpur Court by Gurudeo Khemani, the respondent No.3 on behalf of Lav Kumar and Kush Kumar, respondent Nos. 1 and 2 for a declaration that the arbitration agreement is void, that the judgment of Calcutta High Court is not binding on them and the Calcutta High Court has no jurisdiction to hear the matter etc. On the same day the Kanpur Court restrained the arbitrator from proceeding with the reference. On the 10th of March, 1967, Shilwanti Debi belonging to the petitioner's group made an application to the Supreme Court for staying the order of the Kanpur Court dated the 11th February, 1967. But, on 4th April, 1967 the said application was withdrawn by her. On 7th April, 1967, Banwarilal obtained an order from Calcutta High Court on his application restraining the parties from proceedings in Kanpur Court and for stay of operation of the order of the Kanpur Court. This application also was ultimately withdrawn on 13th June, 1967. On 28th April, 1967, Gurudeo Khemani on behalf of Lav Kumar and Kush Kumar moved an application before the Calcutta High Court (No. 104 of 1967) similar to the one made by him in the Kanpur Court on 11th February, 1967. On the same day the Calcutta High Court was pleased to order that the arbitration may continue but the arbitrator will not make or publish award on 22nd May, 1967, Khemani's application before the High Court was withdraw by him with liberty to make fresh application on the same subject-matter. On 24th May, 1967 the Kanpur Court made a reference to the Allahabad High Court for clarification of the conflicting jurisdiction of the Calcutta High Court and the Kanpur Court with respect to the arbitration proceedings between the parties arising out of the order of Datta, J. dated 7th April, 1967. On 25th May, 1967, the arbitrator made his award which was subsequently filed in the Calcutta High Court on 7th June, 1967. On 16th June, Khemanion behalf of Lav Kumar and Kush Kumar made an application before the Allahabad High Court and obtained an injunction restraining the parties from taking any steps in any court other than the Allahabad High Court. The Kanpur Court also was moved on 3rd July, 1967 for a direction upon the arbitrator to cause the said award or a copy thereof to be filled in the Kanpur Court (Misc. Arbitration Case No. 91 of 1967). Thereafter on 31st July, 1967 the present application was moved by Indra Kumar on which a rule for contempt was issued by Datta, J. upon the respondents.

(2.) It appears that the disputes between the parties in respect of the validity of the arbitration agreement and the award remain undetermined and the fate of the award is still hanging. Mangturam, Sitaram and Rajaram, Lav Kumar and Kush Kumar and Gurudeo and Madan Mohan Ojha have filed objections against the award on or about 15th January, 1968. On 5th February, 1968, two applications were filed - one being No.10/70 of 1968in the Kanpur Court on behalf Lav Kumar and Kush Kumar for restraining the parties from enforcing the award on which the Kanpur Court passed an interim order. It may be added here that the said order was made by the Kanpur Court fortified by the judgment of the Allahabad High Court in answer to the reference pending before the said High Court whereby the Allahabad High Court held that the Calcutta High Court had no jurisdiction to stay the operation of the order of Kanpur Court. The second application on the same date was made by Banwarilal before the Calcutta High Court and obtained an interim order restraining the parties from initiating any proceedings or from taking any steps pending proceedings in any court of law other than the Calcutta High Court in respect of the arbitration proceedings and the said award dated 25th March, 1967 except for the purpose of appearing in appeal or taking steps for further proceedings against the judgment of the Allahabad High Court dated the 22nd February, 1968. On the 10th March, 1968 Banwarilal filed another application in the Allahabad High Court for transfer of all cases pending in the Kanpur Court relating to the arbitration agreement and the award dated 25th May, 1967 to Calcutta High Court and stay of all proceedings pending in the said Court and operation of injunction order. The Allahabad High Court made an interim order staying all further proceedings in Khemani's application on behalf of Lav Kumar and Kush Kumar filed on 5th April, 1968, that is, the application No. 10/70 of 1968. The present application has been moved as early as July 31, 1967, when Datta, J. issued the present Rules against the respondents and, naturally, until the Rules are disposed of, the rights of the parties cannot be determined.

(3.) Before I discuss the contention of the respective parties, it is convenient if the grounds of the Rules for contempt are set out briefly. The rule substantially sets out the following grounds: