Back
HIGH COURT OF CALCUTTA
A. N. Sen
DEBENDRA NATH SINGHA - Appellant
Versus
DWIJENDRA NATH SINGHA - Respondent
Matter 151 Of 1967
Decided On : JULY 25, 1968
ARBITRATION - Appointment of Receiver - Power of Court - Section 41 of the Arbitration Act - Proviso - Terms of Settlement - Clause (5) - Court's power to appoint receiver or make interim order of injunction - Whether barred - Held, yes.
Fact of the Case:
Brothers having disputes with regard to joint family properties and businesses entered into an agreement to refer the disputes to arbitration. During the pendency of the arbitration proceedings, one of the brothers filed an application for the appointment of a receiver and for injunction. The application was opposed by the other brothers on the ground that the court had no power to appoint a receiver in view of the provisions contained in Section 41(b) of the Arbitration Act and the terms of settlement.
Finding of the Court:
The court held that the power of the court to appoint a receiver or make an interim order of injunction was not barred by Section 41(b) of the Arbitration Act, but the exercise of such power was restricted by the proviso to the said section. The proviso stated that the court's power should not prejudice any power which might be vested in an arbitrator or umpire for making orders with respect to any of such matters. In the instant case, the arbitrator had been empowered under Clause (5) of the terms of settlement to give necessary interim direction for the protection and/or conduct of the joint business, management of the joint properties and/or to enhance the monthly payment to the parties. The court held that the appointment of a receiver would prejudice the powers vested in the arbitrator and therefore, the court could not appoint a receiver.
Issues: Whether the court had the power to appoint a receiver or make an interim order of injunction in an arbitration proceeding, where the arbitrator had been empowered to give necessary interim direction for the protection and/or conduct of the joint business, management of the joint properties and/or to enhance the monthly payment to the parties.
Ratio Decidendi: The court held that the power of the court to appoint a receiver or make an interim order of injunction was not barred by Section 41(b) of the Arbitration Act, but the exercise of such power was restricted by the proviso to the said section. The proviso stated that the court's power should not prejudice any power which might be vested in an arbitrator or umpire for making orders with respect to any of such matters. In the instant case, the arbitrator had been empowered under Clause (5) of the terms of settlement to give necessary interim direction for the protection and/or conduct of the joint business, management of the joint properties and/or to enhance the monthly payment to the parties. The court held that the appointment of a receiver would prejudice the powers vested in the arbitrator and therefore, the court could not appoint a receiver.
Final Decision: The court dismissed the application for the appointment of a receiver and for injunction.
( 1 ) THIS is an application for the appointment of a Receiver and for injunction. This application has been made under the Arbitration Act in the matter of an arbitration agreement between the parties.
( 2 ) THE parties to the dispute are brothers, some are own brothers and some are step brothers. The disputes between the brothers are with regard to joint family or joint properties or businesses or properties and businesses in which all the brothers claim to be equally interested.
( 3 ) ONE Dhirendra Nath Singha who was the father of the petitioner and also of all the respondents was a Hindu governed by the Dayabhaga School of Hindu Law and he had various properties and businesses. The said Dhirendra Nath Singha had three wives. His first wife Sushila Bala died without any issue. Dwijendra, Dwipendra, Dikendra and Digendra the respondents Nos. 1 to 4 herein are the sons of the said Dhirendra Naht Singha by his second wife Smt. Rose Bala who is dead. Debendra the petitioner, Dishendra and Dinendra the respondents Nos. 5 and 6 are the sons of the said Dhirenda Nath Singha by his third wife Smt. Nirmala Bala who is alive. Dhirendra Nath Singh died in 1941 leaving a Will. Dwijen the eldest son was appointed the executor under the said Will provided that so long as Dinen the youngest son of Dhirendra Nath Singha did not complete the age of 25 years, the estate would remain under the control and management of Dwijen as executor. By the said Will Dhirendra Nath Singha had given all his properties to his seven sons in equal share? At the time of the death of Dhirendra Nath Singha, the eldest son Dwijen who was appointed the executor was about 23 years old, the second son Dwipendra was about 15 years old, the third son Dikendra was about 13 years old, the fourth son Digendra was about 12 years old, the fifth son Debendra was about 7 years old, the sixth son Dishendra was about 6 years old and the youngest son Dinendra was of only 3 years of age. The youngest son Dinendra has attained the age of 25 years. There is no dispute to the fact and it is common case that the properties have now vested in the seven brothers in equal shares.
( 4 ) IT appears that two several documents were executed on the 2nd of March 1966 by all the brothers and one of the said deeds is a deed of partnership between the brothers in respect of the business and the other is one of indemnity and release.
( 5 ) DISPUTES and differences have arisen between the brothers with regard to the properties including the businesses in which the brothers are all jointly interested. Dinendra the youngest brother instituted a suit in this Court on or about the 29th of May 1967 in respect of the various properties claimed to be joint family properties or joint properties or properties in which the brothers are all jointly and equally interested. In the said suit filed by Dinendra, Dinendra also challenged the validity of the two documents dated the 2nd of March 1966 on the ground of fraud, collusion and conspiracy. The nature of the disputes between the parties and the reliefs that have been claimed by Dinendra will appear more particularly from the plaint filed in the suit. In the said suit the plaintiff Dinendra made an application on or about the 30th of June 1967 for the appointment of a Receiver, for injunction and for various other reliefs. An application was thereafter made by Dwijendra, Dwipendra and Dikendra in the said suit for stay of the said suit and the proceedings thereunder under Section 34 of the Arbitration Act. All the brothers agreed to refer the disputes in the said suit to the arbitration of Mr. B. Das, Barrister-at-Law and on or about the 30th of August 1967 an order was made by consent of all the parties to the following effect:--1. The suit No. 1161 of 1967 (Dinendra Nath Singha v. Dwijendra Nath Singha and others) is stayed. 2. All matters in dispute in the said Suit No. 1161 of 1967, including the question of the validity of the Part
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
