Sabyasachi Mukharji, J. - (1.) THIS is an application under Sections 30 and 33 of the Arbitration Act, 1940 challenging the award dated 30th of Jan. 1978 made by one Shri A. K. Sen, Barrister-at-Law. The award and the dispute centre round a family concern named as Ramkanai Jamini Ranjan Paul Pvt. Ltd. Before I deal with the history of the dispute it may be relevant to refer to certain facts for the purpose of appreciating the grounds upon which the challenge to the award is based. It appears that there was an application to this Court under Sections 237, 397, 398 and 402 of the Companies Act, 1956 about the disputes amongst the shareholders in the company named Ramkanai Jamini Ranjan Paul Pvt. Ltd hereinafter called the said company. It is not necessary to set out in detail the history of the said dispute. But thereafter the parties agreed to refer the disputes to the arbitration of Shri A. K. Sen, arbitrator; an arbitration agreement in writing dated 10th of May, 1977 was entered into. It would be necessary to refer in brief to the said arbitration agreement. The agreement is between Krishna Kanta Paul the respondent No. 1 herein who is the son of Ramani Kanta Paul being the respondent No. 4 herein, Malay Kumar Paul being the son of one Mrinal Kanti Paul being the respondent No. 2 herein and Ramani Kanta Paul and one Tapan Kumar Paul, son of Ramani Kanta Paul. The said company was also a party to the said agreement. The agreement dated 10th of May, 1977 recited that disputes and differences had arisen between the parties regarding various movable and immovable properties and businesses as set out in Schedule I to the said agreement. The agreement, further, states that some of the parties hold shares in the company as set out in Schedule II of the said agreement. The agreement, further, goes on to recite that as differences and disputes had arisen between the parties to the agreement in respect of and arising out of such business and/or properties and the management of the said company and the holdings and ownership of the shares therein and as the parties had failed to arrive at an amicable settlement of such disputes the parties "do hereby agree and consent that all disputes arising out of and/or in connection with the nature and extent of the business and/or properties and/or in respect of share holdings and/or rights of each of the parties herein shall be referred to the Sole Arbitration of Mr. Asoke Kumar Sen, Barrister-at-Law whose decision on such matters will be accepted by all parties hereto as final and binding." Schedule I which dealt with the properties in respect of which disputes had arisen contains the following :-- "1. Stock-in-trade. 2. Fixture and Furniture. 3. Tenancy right of shop room. 4. Good-will of Company. 5. Bank Balance. 6. Cash-in-hand. 7. Four Cars ; Nos. WMB 717 WBJ 838 WBG 8454 WBM 8334 8. Shares of the Company. 9. 24 Cottahs of land more or less in Belghoria with buildings and sheds. 10. Sundry Creditors. 11. Sundry Debtors. 12. Godowns. 13. Garages." After the agreement was entered into an application was made under Section 20 of the Arbitration Act, 1940 for filing of the said arbitration agreement in Court. By an order made on the 19th of May, it was directed that the agreement be filed and there was a reference of the disputes to Shri Asoke Kumar Sen. By the said order it was recorded that the arbitrator would have power to proceed summarily. Thereafter parties filed their respective statements and the arbitrator held several meetings of the parties on diverse dates between the 25th of May, 1977 and 30th of January, 1978. On the 30th of Jan. 1978, the arbitrator has made the award which is the subject matter ol challenge in this application.
(2.) AS several points have been taken in respect of the award made by the arbitrator and inasmuch 33 the arbitrator has recorded certain reasons for making of the award it would be necessary to set out in extenso the said award of the arbitrator. After setting out the reference and the fact that several meetings had been held with the parties and their counsel had appeared and evidence was produced, the arbitrator observed, inter alia, as follows :-- "I hereby direct and award as follows : 1. The shop room of the Company (hereinafter referred to as "the said shop room") is situated at premises Nos. 213 and 213-B, Mahatma Gandhi Road, Calcutta and also at premises Nos. 76/1 and 76/G, Netaji Subhas Road, Calcutta, which comprises of (a) the ground floor having an area of 2,144 sq. ft approximately with a frontage of 43' having 5 door openings and 2 shop-windows and an average depth of 45' from the Northern side of Mahatma Gandhi Road with a mezzanine floor on the ground floor. The said ground floor consists of a western portion comprising Lots A and B shown in the Plan annexed hereto and marked "K" (hereinafter referred to as the "annexed plan") bounded on the west, north and south by red lines and on the east, north and south by yellow lines and the eastern portion comprising of Lot "C" shown in the annexed plan bounded by green lines on the east, west, north and south and (b) the first floor comprising of an area of 2,270 sq. ft. approximately consisting of two portions viz. the northern and southern portions, the access to both being from the ground floor through a staircase rising from the ground floor of the said shop room itself. In addition to this staircase, there are two separate staircases, on the eastern side of the said premises Nos. 213 and 213-B, Mahatma Gandhi Road, Calcutta, which are for the common use of the Company as also other tenants of the said premises through which access is also available to the northern portion of the first floor. The northern portion of the first floor is about 1340 sq. ft. in area and the southern is about 1250 sq. ft. in area. The northern portion includes a godown situated in the portion of Premises No. 76/1, Netaji Subhas Road, Calcutta, comprising of the area shown as Lot B-1 in the an-nexed plan and bounded by yellow lines which is contiguous to the said shop room on the first floor where sales of goods of the Company take place and of the area shown as Lot A-1 in the annexed plan and falling within premises No. 76/C, Netaji Subhas Road, Calcutta, and bounded by red lines. The southern portion comprises an area of 1250 sq. ft, approximately and shown as Lot C-1 in the annexed plan, bounded by green lines and falling within premises No. 76/C, Netaji Subhas Road, Calcutta. 2. The ground floor of the said shop room of the Company described above is shown in the annexed plan, as Lot A, Lot B, and Lot C, the area being the aggregate of the said Lot A, Lot B and Lot C. Lot A is a segment on the western portion of the said shop room on the ground floor formed by two perpendicular straight lines from the base line of the said Premises No. 213-B, Mahatma Gandhi Road, Calcutta, being the north- ern side of the said premises on Mahatma Gandhi Road, the straight lines drawn from the western border of the said shop room on the west and from a point 11-4' from the extreme western end of the said shop room at premises No. 213-B, Mahatma Gandhi Road, Calcutta, respectively and by two straight lines on the north and the south respectively of the said shop room connecting the said straight lines and all marked red. Lot B is a segment falling in the middle portion of the said shop room on the ground floor thereof, bounded by the straight perpendicular line marked in yellow dividing Lot A on the west and another straight line also marked in yellow to the east thereof drawn from the said base line on Mahatma Gandhi Road, at a width of 11'4' in between the said boundary of Lot 'A' and the said line drawn perpendicularly from the said base line on the east and two lines on the north and south of the said shop room connecting the said two straight lines also marked in yellow and shown as Lot B in the annexed plan. Lot A is shown by boundaries in red lines and Lot B is shown as boundaries in yellow lines in the annexed plan. Lot C is a segment shown and bounded by green lines in the annexed plan, being the segment lying to the east of Lot B and bounded on the west by the boundary of the said premises No. 213, Mahatma Ganlhi Road, and on the east by the boundary on the east of the said shop room. Lot A and Lot B are comprised in the premises No. 213B Mahatma Gandhi Road. The Lot C is comprised in the premises No. 213, Mahatma Gandhi Road The eastern and western portions of the said shop room on the ground floor is shown as such in the annexed plan. The first floor of the said shop room is included in premises No. 76/1, Netaji Subhas Road, Calcutta and 76/C, Netaji Subhas Road, Calcutta and are shown in the annexed plan as consisting of the portions marked Lot A-1, Lot B-1 and Lot C-1. Lot A-1 comprises of an area of 380 sq. ft. approximately shown and bounded by red lines in the annexed plan and forms the extreme eastern portion of the first floor of the said shop room, Lot B-1 is shown as bounded by yellow lines in the annexed plan and comprises of an area of 460 sq. ft. approximately forming the extreme north eastern portion of the said shop room on the first floor including the said godown measuring approximately 13'-6" x 8'-3" in the Lot B-1. Lot C-1 comprises of the extreme western portion of the said shop room in the first floor and is shown as bounded by green lines in the annexed plan, having an approximate area of 740 sq. ft. on the southern portion of the said Lot C-1. The northern and southern portions of the said shop room on the first floor are marked as such in the annexed plan and consist of an area of A-1 and B-1 for the northern portion and C-1 for the southern portion respectively.
(3.) THE said premises Nos. 213 and 213-B, Mahatma Gandhi Road, Calcutta and 76/1 and 76/G, Netaji Subhas Road, Calcutta belong to four landlords, viz. (i) Smt. Kailash Devi Burman, widow of of Shri Rashbehari Burman deceased, (ii) Krishna Kumar Burman, (iii) Madan Mohan Burman and (iv) Raj Kumar Bur-man under whom the company is a monthly tenant in respect of the said shop room. By mutual partition and family arrangement amongst the landlords the said shop room has been divided between the said landlords in the manner following, namely, (a) Lots Nos. A and B mentioned above and marked and bounded by red lines and yellow lines respectively in the annexed plan and having respectively the said areas of 506 sq. ft. and 724 sq. ft. approximately and falling within premises No. 213-B, Mahatma Gandhi Road, Calcutta have been allotted to and belong to Krishna Kumar Burman. Lot No. C on the ground floor of the said shop room having an area of 914 sq. ft. approximately and falling within the said premises No. 213-B, Mahatma Gandhi Road, Calcutta, has been allotted to and belongs to Madan Mohan Burman. Lot A-1 on the first floor falling within the said premises No. 76/G, Netaji Subhas Road, and shown as bounded by red lines in the annexed plan and having an approximate area of 880 sq. ft. has been allotted to and belongs to Raj Kumar Burman. Lot No. B-1 on the first floor of the said shop room including the said godown falls within the premises No. 76/1, Netaji Subhas Road, Calcutta, and is shown as bounded by yellow lines in the annexed plan. It comprises an area of 460 sq. ft. and the said godown and has been allotted to and belongs to Smt. Kailash Devi Burman. Lot C-1 on the first floor of the said shop room falls within premises No. 76/G, Netaji Subhas Road, Calcutta, and is shown as bounded by green lines in the annexed plan. It Comprises an area of 910 sq. ft. and 340 sq. ft. approximately and has been allotted to and belongs to Madan Mohan Burman.;