ABU BAKKAR BARBHUIYA Vs. MOINUL HAQUE BARBHUIYA

JUDGEMENT

(1.) Heard Mr. S.K. Ghosh, the learned Counsel appearing for the appellant (claimant). The respondent is represented by the learned Senior Counsel Mr. D. Majumder.

(2.) This appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Arbitration Act") to challenge the judgment dated 8.12.2005 (Page-49) in the Title Suit (Arbitration) No.7/2003, whereby the learned District Judge, Hailakandi quashed the Award rendered by the sole Arbitrator on 27.1.2003 (Annexure-1), by allowing the petition under Section 34 of the Arbitration Act filed by the respondent. The Court held that the Award was made solely on the basis of presumption and therefore the same was set aside.

(3.) The appellant and the respondent are brothers and were partners of the firm i.e. M/s Union Food Industries, which was carrying on the business of oil extraction, Ata Chakki, Chira Mill etc. But a dispute arose between the two partners and the appellant Md. Abu Bakkar Barbhuiya in furtherance to his claim for a share in the partnership income, filed the Arbitration Petition No.17/2000 in the High Court, for nomination of Arbitrator, under Section 11 of the Arbitration Act. The respondent appeared in the proceeding and denied the existence of the Partnership Deed dated 14.7.1987 and objected to nomination of the suggested Arbitrator. But the Chief Justice referred to the independent power available to the Arbitrator under Section 16, to give a ruling on his own jurisdiction and after considering the decision in Konkan Railway Corporation Ltd. vs. Rana Construction, 2002 2 SCC 388 held that the Arbitrator can decide on existence/validity of the agreement. Consequently on 28.2.2002 the Arbitrator proposed by the claimant was nominated. But while disposing of the Arbitration Petition No.17/2000, the Chief Justice left it open for the Arbitrator to decide on the existence/validity of the Arbitration Agreement.