- (1.) IN the presence of the learned advocates for both sides, the matter is taken up for hearing.
(2.) IT is submitted by the learned Advocates for both the sides that their clients are ready and willing to take all effective steps for recalling the reference now pending before the Arbitrator. Leave is given to file appropriate application for recalling the reference. Our attention has been drawn to a reported decision in AIR 1946 Cal. 427 (Prafulla Chandra karmakar and Another vs. Panchanan Karmakar and Others) wherein it has been hel by the Division Bench of this Court that after reference to arbitration has been made in a suit through the court, the parties cannot be allowed, by mere consent, to abandon the arbitration and go on with the suit or ask for a fresh reference. But if a concluded compromise in undisputed terms be placed before the court by all the parties, whether before an award has been made or after the court may grant leave to revoke the submission under section 5, Arbitration Act and on superseding the arbitration agreement thereafter under Section 12 (2) (b), pass a decree in terms of the compromise. But the compromise, before it is accepted, must be considered on its own account as to its validity and cannot be accepted as a matter of course. Further where a compromise is only alleged by one party and disputed by the other the existence of such a disputed compromise cannot be a good ground for granting leave to revoke the submission and the court has not power to entertain the question of such a compromise or to embark upon an enquiry as to its factum. In no case can a compromise be given effect to by the court without first superseding the reference. In the instant case by order mo. 6 dated 24th September 1993 passed by the learned Judge, city Civil Court Calcutta Twelfth Court in misc. case No. 1506 of 1993 refusing to record the joint petition of compromise dated 8th September, 1993 in view of the fact that the matter is pending before the Arbitrator already appointed and directing the parties to withdraw the compromise petition cannot stand as the learned advocates for both the parties submit that their clients are agreeable to revoke the reference and to file a proper application before the court below. Leave is granted as indicated above following the ratio of the decision AIR 1946 Cal 427 (supra)
(3.) LEARNED court below is directed to consider such compromise petition after considering the application for such revocation of reference in the light of the discussions made above.;