LEE WAN SHANG Vs. LEE THOU SEN
LAWS(CAL)-1996-8-32
HIGH COURT OF CALCUTTA
Decided on August 05,1996

Lee Wan Shang Appellant
VERSUS
Lee Thou Sen Respondents




JUDGEMENT

S.N. Mallick, J. - (1.)The instant Revisional Application has been preferred by the claimant Petitioners against the judgment and Order dated May 20, 1992 passed by the learned Additional District Judge, 10th Court, Alipore, 24 -Parganas (South) in Misc. Appeal No. 427 of 1990 thereby allowing the Misc. Appeal in part and modifying the Arbitrator's award filed in T.S. 61 of 1986. It may be noted that the Misc. Appeal was preferred against the Order of the Assistant District Judge, 3rd Court, Alipore dated September 1, 1990 passed in Misc. Case No. 11 of 1989 under Sec. 33 of the Arbitration Act, 1940 whereby the learned Assistant District Judge dismissed the same.
(2.)The Petitioners filed an application under Sec. 33 of the Arbitration Act (hereinafter referred to as the Act) for setting aside the award passed by the arbitrator Shri Profulla Kumar Roy filed in Court below on August 12, 1988 and opened on February 21, 1989 on the ground of that the arbitrator misconducted himself and the proceedings. Various allegations were levelled against the arbitrator in the aforesaid application by the Petitioners as instances of his misconduct. The learned Trial Court dismissed the application under Sec. 33 of the Act on the ground that it was barred by limitation and that in the said application -
'assessment, re -examination or re -assessing the materials is being called for by the present Petitioners which is not permissible. The learned Trial Court further observed as follows: The grounds in a nutshell is not convincing nor it comes within the periphery of Section. 33 of the Act. Under the above facts and circumstances and in view of my foregoing discussions it is opined that the grounds so mentioned in the Misc. case is not tenable either in law or in facts and is subject to dismissal'.

The Appeal Court in the impugned order has disagreed with the Trial Court on the point of limitation and has found after consideration of materials on record that the application under Sec. 33 is not barred by limitation. The Appeal Court has also found while discussing point No. 2 regarding misconduct of the arbitrator that the arbitrator is not guilty of misconduct. But, he has modified the award under Sec. 15 of the Act and has raised the total amount receivable by the Petitioners -Appellants to Rs. 3,64, 413. 00 from Rs. 2,48,970.50 p. as awarded in his favour by the arbitrator in his award. The learned Appeal Court has considered the objections taken on behalf of the Appellant -Petitioners and also the submissions made on behalf .of. the Respondent opposite parties. It appears from the impugned order that the award was challenged before the Appeal Court on behalf of the Petitioners on the ground that the arbitrator was not expert in tannery business and as such he could not effectively divide the same into two halves, that the arbitrator failed to consider the minutes of the proceedings held on July 24, 1988 wherein the Petitioner -Plaintiffs stated that they were ready and willing to pay Rs. 5,00,000.00 to the Respondents, that the arbitrator did not consider the valuation report submitted on behalf of the Petitioner, that he assessed the valuation of the firm whimsically and that the arbitrator went beyond reference and as such he is guilty of misconduct. The learned Appeal Court after considering the materials on record and a hearing the submissions of both the parties came to a finding that while passing the award the arbitrator committed an obvious error by relying on the valuation of the assets of the firm as it stood on March 31, 1984 while the award was passed or signed on October 10, 1988. The learned Appeal Court taking into consideration the rise in valuation of the assets at the time of the award raised the total amount receivable by the Appellant -Petitioners to Rs. 3,64,413.00 thereby modifying the award. In the instant Revisional Application the Petitioners have challenged the impugned order on very many grounds including the grounds taken before the courts below. It may be pointed out that in the application under Sec. 33 of the Arbitration Act for setting aside the award, although very many grounds have been taken, but no where it has been specifically stated by the Petitioners that the arbitrator has misconducted himself or the proceedings. Any way, even if it is not stated, the Court is to consider whether such grounds or allegations made against the arbitrator amount to misconduct for the purpose of setting aside the award filed by him.

(3.)Before I go into the merits of the application some admitted facts on record may be noted for the purpose of proper appreciation of the instant application.
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