- (1.) THE Court : THE core question involved in the instant appeal is whether the award passed by the arbitrator is a nullity in absence of a probate to the will of the deceased party to the arbitral proceeding, in view of the embargo created under section 213 of the Indian Succession Act. Before deciding the above question of law it would be trite to narrate the brief facts of this appeal.
(2.) ONE R. N. Thakur, since deceased along with the other co-owners of the premises no. 29 Sadananda Road, Kolkata 700 026 entered into an agreement for development of the said property with M/s. Metro Promoters Pvt. Ltd., the appellant herein. The said agreement contained an arbitration clause. By the said agreement it was agreed that the appellant herein shall give four selfcontained flats more or less 3000 sft. of the sanctioned area in the proposed newly constructed building. Such area which was agreed to be allotted to the joint owners was on stipulation that the plan would be sanctioned for construction of 14000 sft. of area. However the Kolkata Municipal Corporation granted sanction for construction of an area of 10414 sft. only. It is contended by the appellant, the developer, that the area which was agreed to be allotted to the joint owners on the basis of an understanding that there would be sanction for 14000 sft. of covered area should be decreased in the proportion as the plan could be sanctioned for 10414 sft. of covered area and the joint owners would be entitled to get constructed area of 2232 sft. instead of 3000 sft. in terms of the said agreement. Disputes cropped up between the appellant and the said owners and two applications under the Arbitration and Conciliation Act 1996 were filed being AP 43/97 and AP 345/97 by the said R.N. Thakur, since deceased. The said applications were disposed by appointing sole arbitrator with a direction to complete the reference within four months after filing of the pleadings. Ultimately the arbitrator published an award on 3.9.2002, the operative portion is quoted below : (a) the claimant do get an award against the respondent for specific performance of the contracts by delivery of the flat with 750 sft. Area of he specification with car parking space mentioned in the supplementary agreement dated 02.01.1991 in the multi-storeyed building at 29 Sadnanda Road, Calcutta " 29 immediately on expiry of three months from date of receipt of copy of this Award as per Claim No. (a) of the claimant (b) an award against the respondent for damages for Rs. 80,000/- for nondelivery of the allocated flat and car parking space in the said building at 29 Sadnanda Road, Calcutta for the period from 02.03.1997 to 01.07.1998 as per claimant"s claim No. (b) (c) an award against the respondent for further amount of damages calculated @ Rs. 5,000/- per month from 02.07.1998 till delivery of the flat and car parking space in the said building at 29 Sadnanda Road, Calcutta as per claimant"s claim no. (c) (d) an award against the respondent for Rs. 2,88,000/- as compensation in the event of delivery of a flat with car parking space in the said building not in conformity with the area and description as given in supplementary agreement dated 02.01.1991 and going possession only a flat with area of 558 sft. And car parking space, as per claimant"s claim no. (d) (e) an award against the respondent for interest @ 18% p.a. on the sum of Rs. 80,000/- from 02.07.1998 upto the date of this award. Post award interest on damages will be governed by the provisions of section 31(8) of the Act no. 26 of 1996 in absence of any negative decision with regard thereto (f) an award against the respondent for costs of this arbitral proceedings amounting to Rs. 93,905/- as per details of costs mentioned in the schedule appended to this award as part of award, as pr claimant"s claim no. (I) (g) an award against the respondent making the order for interim measure in respect of the awarded flat and car parking space absolute (h) claim no. (h) for award for interest @ 18% p.a. on arbitral award till realization as made is rejected and refused. The said award was challenged by the appellant under section 34 of the Arbitration and conciliation Act 1996 and the said application challenging the award was dismissed on the ground of limitation as having barred under section34 (3) of the said Act. The said order was not carried further in appeal by the appellant.
(3.) IT would be pertinent to mention that during the arbitral proceeding the claimant, R.N. Thakur, since deceased, died and one Indranath Bhattacharjee was substituted in place of the said claimant being the executor to the will of the said deceased. Subsequently the said award was put into the execution by the present respondent. At the time moving the execution application, the executing court appointed receiver to take possession of the said flat. It appears from the report of the receiver that the said flat has already been transferred in favour of Smt. Sudeshna Ghosh. An application as intervenor was filed by the said Smt. Sudeshna Ghosh in the said execution proceeding which was allowed. It has been contended by the said intervenor that she purchased the property from one M/s. Kripa Realtor Pvt. Ltd. who acquired the said flat from the appellant company upon execution and registration of the deed of conveyance dated 24.9.1999. She further stated that she is no longer interested to keep the said flat, if the money which she has invested for acquisition of the said flat is paid to her.;