Biswajit Das vs Kartick Chandra Singha And Ors
2023 Latest Caselaw 5544 Cal

24.08.2023
KC(10)
                               F.M.A.T. 288 of 2022
                                   Biswajit Das
                                     -versus-
                         Kartick Chandra Singha and Ors.
                                       With
                                  CAN 1 of 2022
                                       With
                                  CAN 2 of 2023




             Mr. Kishore Mukherjee,
             Mr. Anitagni Dey............................For the appellant.


                   An affidavit of service is on record. None appears

             for the respondent or the proforma respondents.

The point involved is very short. We propose to

dispose of this appeal by dispensing with all formalities.

The subject matter of controversy between the

parties is inter alia with regard to allocation of shares of

the parties in the subject property. The respondents are

the owners of the property on which a multi-storied

building has been built. The appellant is the developer.

The agreement between the parties contains an

arbitration clause.

Invoking this clause an application under Section

9 of the Arbitration and Conciliation Act, 1996 was

made by the respondent before the learned court below.

On perusal of the impugned judgment and order

of the learned court below dated 7th June, 2022 we find

that the issues in the Section 9 application have not

been addressed at all by the learned judge. Instead the

matter was referred to arbitration according to the

arbitration clause. The interim order passed at the

threshold was directed to continue till "adjudication of

the arbitration proceeding."

The proper approach would have been to consider

the case in the Section 9 application and thereafter pass

any order with reasons till the disposal of the arbitral

proceedings.

In that view of the matter we set aside the

impugned judgment and order dated 7th June, 2022.

We remand the entire matter to the learned court below

to consider the case in the Section 9 application

according to our observation above.

The appeal (F.M.A.T. 288 of 2022) is allowed. The

connected application (CAN 1 of 2022) is allowed. The

connected application (CAN 2 of 2023) is allowed.

(I.P. MUKERJI, J.)

(BISWAROOP CHOWDHURY, J.)