TILOKRAM GHOSH Vs. GITA RANI SADHUKHAN

JUDGEMENT

(1.) The facts of this appeal are shortly as follows: On 9.10.53, a deed of Partnership was executed amongst the defendant No. 5 Monoranjan Banerjee, the defendant No. 6 Gopika Ranjan Banerjee, the defendant No. 7 Sachidananda Banerjee as well as one Harihar Mal and one Sibram Ghosh, since deceased and the appellant No. 1. The business carried on by the firm was for exhibiting cinematographic films under the name and style of "Surasree Cinema". The Cinema House, one of the assets of the firm, was constructed on a plot of land situated in the district of Howrah. The said plot of land was purchased by the aforesaid six partners and was treated as one of the assets of the said firm. It was an unregistered Partnership and the partners had shares therein as set out in the said Deed. Subsequently Harihar Mal sold his share and the shares of the partners in the firm increased as set out in paragraph 7 of the plaint. This Deed of partnership contained an Arbitration Clause for resolving the disputes arising out of this partnership amongst the parties inter se by arbitration.

(2.) Disputes and differences arose between the Banerjee Group of Partners and the Ghosh Group of Partners. Thereupon, Sachinanda Banerjee, the respondent No. 7 herein, by a letter, dated 5.3.55, addressed to his own lawyer Sri Bibhas Chandra Mitra, recorded that due to wrongful acts of the partner, Sibram Ghosh it would not be possible to carry on the business any more. He wanted to refer the disputes to the arbitrators in terms of the Arbitration Clause in the Partnership Deed and further recorded that the terms for reference should include the question of dissolution of the partnership. By that letter, respondent No. 7 appointed his lawyer Bibhas Mitra as his arbitrator. This letter is at page 9 of Part II of the Paper Book in Appeal No. 156 of 1962 which was handed over to this Court by the counsel for the respondents Nos. 1 to 4 during the hearing of this appeal. The disputes were, thereafter, referred to the arbitrators. For determination of the disputes, the arbitrators framed, inter alia, three main issues with which this Court is concerned in this Appeal:

(3.) It appears from the award, dated 21.9.53 set out at pages 306 to 311 of the Part I of the Paper Book in this Appeal, that it was alleged before the arbitrators that the Ghosh Group of Partners had agreed to sell their respective share to the Banerjee Group of partners and that agreement was arrived at on 8.5.55. In the award, the arbitrators held that there was a concluded contract on 8.5.55 and it remained enforceable and the arbitrators gave direction for giving effect to the said agreement. By that award the arbitrators also held that the firm stood dissolved on and from 8.5.55 when the contract for sale was concluded. The Ghosh Group did not accept the said award and challenged its validity and legality U/ss. 30 and 33 of the Arbitration Act. As a result, the sale of Ghosh Group's share in favour of the Banerjee Group did not take place. This application for setting aside the award, being Misc. Case No. 23 of 1956, was dismissed by the Subordinate Judge, First Court, Howrah, by Order, dated 29.5.61. Thereafter, Sibram Ghosh, who was a bachelor, died interstate leaving him surviving his sole heiress, his mother Smt. Bhabatarini Ghosh. The appellant No. 1 along with said Bhabatarini Ghosh preferred an appeal in this Court from the said Order, dated 29.9.61, being F.M.A. No. 156 of 1962, By an Order, dated 12.9.78, the said award was set aside in its entirely and stay of operation of the said Order was granted. From the Order, dated 12.0.78, the Banerjee group moved the Supreme Court for Special Leave on 1.11.78 but the said Special Leave petition was dismissed on 23.7.79. As a result of the Order, dated 23.7.79, the status quo ante was revived. The Surasree Cinema continued to be a subsisting partnership and the appellant No. 1 and Sibaram Ghosh, during his life time along with the respondent Nos. 5, 6 and 7, the Banerjee Group, remained as the partners of the said Firm. On Sibaram's death, the appellant No. 1 along with Banerjee group became surviving present partners of the said Firm.