S.K.Mukherjea, J. - (1.) THIS appeal is directed against an order made by a learned single Judge on 11-8-1975 by which he ruled that the reference to the arbitration under an order dated 31st May, 1973 by superseded and the arbitration agreement do cease to have effect with respect to the differences referred to arbitration. By the said order, his Lordship was pleased to release the petitioner from an undertaking given by him to this Court on May 31, 1973. The facts of this litigation may be briefly stated. On May 4, 1972, a partition suit being Suit No. 191 of 1972 was instituted by the respondent No. 1 Shyam Sundar Swaika against Ganga Vishnu Swaika and others. On the same date an application was made by the plaintiff for appointment of a Receiver.
(2.) AT the hearing of the application, it was felt that the disputes and differences in the suit might, in the interest of all concerned, be referred to the arbitration of two persons in whom the parties had confidence. The estate comprises of substantial immoveable properties and a large number of business undertakings. The application was adjourned and on May 31, 1973, on a joint application of the parties, the matters in dispute in the suit were, by consent, referred to the arbitration of P. D. Dabriwal and Raja Ram Bhiwaniwala. The relevant portion of the petition by which the parties entered into the arbitration agreement reads: "8. Your petitioners have agreed to refer the aforesaid disputes to the joint arbitration of Sri Prabhudayal Dabriwal of No. 7-C, Middleton Street Calcutta and Sri Rajaram Bhiwaniwala of No. 3, Goenka Lane, Calcutta with summary powers to dispose of the reference, and with power to appoint an umpire, within a fortnight from the date of order to be passed herein. It is also agreed that in case of any difference between the said arbitrators the matter shall be referred to the Umpire to be appointed herein. The Umpire shall have summary powers to dispose of the reference within 15 days from the date of reference to him. 9. Your petitioners have further agreed and hereby undertake to Court not to proceed with any pending proceedings in any Court or to institute any fresh proceedings in any Court in respect of any matter which are the subject-matter of the reference until further orders of Court. 10. The parties have been advised to make the present petition with a view to settle the dispute between the parties within a short time by arbitration. It has however been agreed between the parties that if the arbitration is not completed within the time stipulated, the reference to arbitration would stand superseded and the pending application of the plaintiff will come up in the list for disposal by this Hon'ble Court."
(3.) IN spite of two extensions made in June and August 1973, the joint arbitrators could not dispose of the reference. On August 31, 1973, the joint arbitrators having differed, the disputes and differences were referred to B. D. Kanoria, the umpire appointed by the arbitrators. Thereafter time to make the award was extended from time to time by and with the consent of parties, until time was finally extended by an order of Court dated June 7, 1974 by a period of four months from that date.;