IN THE HIGH COURT AT CALCUTTA CIVIL APPEALLATE JURISDICTION APPELLATE SIDE FMA 1390 of 2022 Ashiana Represented by its Proprietor Ashoke Kumar Shaw Vs Biva Dutta Roy & Ors.

Before: The Hon’ble Justice Arijit Banerjee &

The Hon’ble Justice Om Narayan Rai For the Appellant Mr. Arijit Bardhan, Adv.

Mr. Sarosij Dasgupta, Adv.

Mr. Biswaroop Mukherjee, Adv.

Ms. Saheli Bose, Adv.

Mr. Gourab Mondal, Adv.

For Respondent No. 1 Mr. Sudip Deb, Sr. adv.

Ms. Ipsita Ghosh, Adv.

For Judgment 24.12.2025 Arijit Banerjee, J. :-

1. This appeal is directed against a judgment and order dated February 8, 2022, passed by the learned Additional District Judge, 3^rd Court, North-24 Parganas, in Misc. Case no. 47 of 2017 [Arbitration] being an application filed by the appellant herein under Section 34 of the Arbitration and Conciliation Act, 1996 (in short ‘1996 Act’). The application was filed challenging an arbitral award dated December 12, 2016, passed by a learned sole Arbitrator in an arbitration proceeding initiated by the opposite party no. 1 herein (claimant and in short referred to as ‘Biva’) against the appellant and the proforma respondents herein (compendiously referred to as ‘Ashiana’).

2. Three partnership deeds were executed by and between Biva and Ashiana for developing three different properties. Under a partnership deed dated July 19, 2003, the partners proposed to build an apartment called ‘Bhagawati Apartment’. By another partnership deed dated July 19, 2003, the partners proposed to construct ‘Shyamkunj Apartment’. By a third partnership deed dated January 25, 2002, the partners decided to construct ‘Subhankar Apartment’.

3. All the three projects were completed. Biva claimed that she did not receive her share of profits in each of the projects. She filed three civil suits being Title Suit No. 516 of 2008, Title Suit No. 517 of 2008 and Title Suit No. 523 of 2008 before the learned Civil Judge (Senor Division) 1^st Court at Barasat claiming her share of profits in the three projects. However, the suits were dismissed but not on merits.

4. Thereafter, Biva served notices of arbitration on the other partners of the aforesaid three partnerships, invoking the arbitration clause in each of the partnership deeds. Since, no Arbitrator could be appointed by consent of the parties, Biva filed three applications under Section 11 of the 1996 Act in this Court being A.P. No. 426 of 2010, A.P. No. 427 of 2010 and A.P. No. 428 of 2010, for appointment of an Arbitrator. By an order dated December 4, 2012, a learned Judge of this Court disposed of the three arbitration petitions by appointing a learned Advocate of this Court as the sole Arbitrator.

5. The parties filed their pleadings before the Arbitrator. Evidence was tendered on behalf of the claimant. The Arbitrator made and published his award, the relevant portion whereof reads as follows: -

“After the pleadings were filed, the evidence tendered and arguments made by both parties, it appeared that the only disputes is that dispute relating to the accounts of the three Partnership Firms. Despite repeated directions given by me none of the parties could produce the entire books of accounts, bank statements, audited accounts or income-tax returns. Even after going through the pleadings and evidence on record, it was not possible for the Arbitrator to arrive at a finding with regard to the entitlement of the claimant in each of the Partnership Firms. The claimant, on whose behalf her husband Mr. Dipankar Dutta Ray appeared, had all along submitted that she was not in possession of the complete books of accounts and the same were in possession and control of the respondent no.1. The respondent no.1 has also denied being in possession of any books of accounts other than those produced and tendered in evidence before the Arbitrator. No other partner appeared before the Arbitrator.

After the hearing was concluded the Arbitrator again called both the parties and enquired of them whether they would agree to the appoin