TaxTMI 
TaxTMI 
2012 (11) TMI 84
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....d into a partnership. Since then, three partners carried out the business. Pertinent to note, within a few months of such partnership being entered into Amarendranath died leaving him surviving his two sons name above. At that time Rajat was a minor. His interest was being looked after by Kamal Kumar as claimed by him. Kamal Kumar claimed, he arranged marriage of the daughters of Amarendranath out of the business income as also brought up Rajat and Adhar as guardian of the family. According to Kamal Kumar, he was running the show in absence of Amarendranath at the relevant time. On Rajat becoming major the farm was reconstituted by admitting him into the partnership. In course of time Kamal reached the advanced age and was ailing. On October 20,1983 Kamal Kumar wrote a letter in Bengali addressed to Adhar making serious allegations against two brothers as to the functioning of the farm to his exclusion. If we go through the letter in detail we would find the same as an emotional out-burst rather than a business letter. In the letter Kamal Kumar expressed his inability to take active part in the business for last three years because of his advanced age and ailment. At the end he ....
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....bitrator also held, the heirs of Kamal Kumar would be jointly entitled to 1/3rd share in the tenanted shop room of Imperial Paper House and if it was not possible, they would be entitled to Rs. 4 lacs in lieu of such possession. The arbitrator also held that heirs of Kamal Kumar would be entitled to the ownership of the Ambassador car being WBA6600. Rajat and Adhar filed an application under Section 30 and 33 of the said Act of 1940 inter-alia challenging the award. The learned Single Judge dismissed the application. The Court of appeal set aside the order and remanded the application for setting aside to the learned Single Judge for being heard afresh. The learned Judge heard the matter afresh and ultimately allowed the said application by setting aside the award by His Lordship's judgement and order dated December 23, 2004 appearing at pages 172-182 of the paper book. Hence this appeal by one of the daughters Rina Dhar. Pertinent to note, Jagatdhatri and Alpana did not contest the proceeding before the learned Single Judge. They initially appeared, however, disappeared subsequently. The appeal appeared from time to time before various Division Benches wherein attempts we....
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....e notice. Hence, the application was barred by laws of limitation. On factual matrix, he referred to Clause 14, 15 and 17 of the Deed of Partnership to show, in case of death or retirement of any partner his heirs would be entitled to be admitted into the partnership. He referred to Section 32, 56 and 63 of the Partnership Act to contend, the letter dated October 8, 1983 could not be construed as resignation within the meaning of the said Act of 1932. According to him, the letter of resignation must be addressed to all the partners and a personal letter to Adhar could not be construed as resignation. He referred to the decision in the case of Sankar Das Naraindass Vs Sita Ram Jawala Parshad reported in All India Reporter 1956 Pepsu Page - 83 to support his contention that the application being barred by time, could not be entertained that too, without being supported by an application for condonation of delay. He referred to Article 119 of the Limitation Act to say, the application for setting aside could only be made within 30 days from the date of receipt of the notice under Section 14(2) of the said Act of 1940. According to him, Section 5 of the Limitation Act would have ....
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....ere. He referred to his counter claim made before the arbitrator. He referred to page 69 wherein the issues were set out. He referred to his counter statement of fact to show, claim was duly made as would appear from page 90 hence the arbitrator must consider the same. Having not done so, he mis-conducted himself. He referred to the decision of the Apex Court in the case of K. V. George Vs Secretary To Government, Water and Power Department, Trivandrum and Another 1989 Volume IV Supreme Court Cases Page- 595. He referred to paragraph 12 where Apex Court observed, the counter claim should have been considered by the arbitrator. On the transfer of tenancy, Mr. Banerjee contended, it was barred by law. In any event, the appellant was siding with the landlord who filed an eviction suit as against Dhar brothers on the ground of default and reasonable requirement. The award was thus perverse allotting a portion of the tenancy in favour of the appellant and her relations. On the amendment, Mr. Banerjee would contend, the damage not being contemplated in the application under Section 20, the arbitrator should not have allowed the amendment. He referred the Apex Court decisions in the....
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.... award. The learned Single Judge observed, Kamal Kumar resigned in 1983 without considering the assertions of his heirs to the extent that he had acted as partner for next five years until his death. The documents filed before the arbitrator were not considered. In any event, learned Judge also observed that the award was bad in view of allotment of tenancy that was not permissible under the tenancy law. We fail to appreciate, as observed herein before, the arbitrator having published an alternative award by giving money compensation in lieu of such allotment would remove the legal obstacle, if any, on that score. Hence the award could not be faulted on that ground. His Lordship observed, the arbitrator should not have awarded interest that would be de hors the contract. We fail to appreciate. In the decision in the case of Secretary, Irrigation Department, Government of Orissa Vs G.C. Ray reported in 1992 Volume- I Supreme Court Cases page-508 the Apex Court already held, the arbitrator would be well within his right to award interest. The arbitration agreement as contained in the Deed of Partnership, did not specifically debar awarding of interest. In absence of such Clause....