Decided on March 10,1983



Sen, J. - (1.) :
(2.) THIS is a revisional application at the instance of the plaintiff and is directed against an order dated March 15, 1982, passed by the learned Subordinate Judge, 9th Court, Alipore deciding two preliminary issues against the plaintiff. The plaintiff who is one of the sons of Benoypada Kumar filed the aforesaid suit for partition and accounts against his mother, defendant No. 1, and his other brothers and sisters who were other defendants. The subject-matter involved included several immovable properties and businesses. In claiming partition by inheritance from Benoy, the plaintiff pleaded that Benoy in his life time in order to defraud the creditors and the Income Tax Department caused a false and collusive proceedings to be started under the Arbitration Act, in collusion with defendant No. 1. In that proceeding, the defendant No. 1 raised a sham dispute based on a sham claim and obtained a fictitious award and a decree passed thereon in the Title Suit No. 87 of 1957. THIS decree covers premises No. 4, Loudon Street and three businesses run under the name and style of Messrs. B. Kumar & Company, Messrs. Kumar Construction company and Messrs. India Floors. The plaintiff claimed that notwithstanding such a sham decree Benoy during his lifetime continued to remain the owner of the said property and the businesses and on his death the plaintiff has inherited 1/6th stare in them along with the other properties incorporated in the plaint schedule. On a contest put forward by the contesting defendant the Court framed two issues as to whether the suit is barred under the provisions of section 281A of the Income Tax Act and sections 32 and 33 of the Arbitration Act. These two issues having been heard as preliminary issues the learned subordinate Judge has decided the issues against the plaintiff when he held that a part of the plaintiff's claim in respect of premises No. 4, Loudon Street, Calcutta, and the three businesses, namely, Messrs. B. Kumar & Co., Messrs. Kumar Construction Company and Messrs. India Floors stands barred both under the provisions of section 281A of the Income Tax Act and sections 32 and 33 of the Arbitration Act. Feeling aggrieved, he plaintiff has challenged the said order in the present revisional application. The application is being heard upon notice to and upon contest by the contesting defendants.
(3.) MR. Banerjiee appearing in support of this revisional application, has contended that the learned Subordinate Judge wholly misread the scope and effect of the material provisions of the Income Tax Act and the Arbitration Act, in holding that the plaintiff's suit stands barred in part and as a result there of the plaintiff stands non-suited to that extent.;

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