Prahallad Khandelwal vs Vijay Khandelwal And Another
2022 Latest Caselaw 2147 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ARBA No.26 Of 2008
                                (Through hybrid mode)

            Prahallad Khandelwal                  ....                   Appellant

                                                Mr.S.P.Mishra, Senior Advocate
                                          -versus-

            Vijay Khandelwal and another          ....                Respondents

                                   Mr. A.K. Mishra, Advocate for Respondent no.1
                                   Mr. S.K. Mishra, Advocate for Respondent no.5
                                    Mr. A.R. Dash, Advocate for Respondent no.3
                                             Mr. P.K. Rath, Advocate (Intervenor)

                      CORAM: JUSTICE ARINDAM SINHA
                                     ORDER

07.04.2022

Order No.

68. 1. Mr. S.P. Mishra, learned senior advocate appears on behalf of

appellant. He submits, disputes are between brothers. He is appearing

for the eldest brother while Mr. A.K.Mishra, learned advocate is

appearing for the other brother. The other respondents are his client's

wife and children, for who Mr. P. K. Rath, learned advocate appears.

2. Mr. S.P. Mishra submits, there has been settlement and joint

application filed. The brothers have reconciled their differences and

agreed to amicable partition that would result in modification of the

award, upheld by judgment impugned in the appeal.

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3. He submits further, the parties and their respective learned

advocates have addressed the situation arisen and they have been

advised that in this appeal, the award cannot be modified. However, in

event impugned judgment and the award is set aside in appeal, the

parties can then have reconstitution of the reference and award under

section 30, Arbitration and Conciliation Act, 1996. He submits,

appropriate order be made in the appeal.

4. Other appearing counsels also want such order be made so that

the amicable partition agreed between the brothers can be given effect

to by award, to thereby obtain closure on the disputes.

5. I.A. no.25 of 2022 is the joint compromise, on record. Parties

and their learned advocates have signed it. It states the terms on which

parties have agreed for amicable partition of the properties, subject

matter of the award upheld by impugned judgment. There is variance

between the terms of settlement with directions in the award. This

cannot be ratified by order passed in appeal under section 37. Hence,

requirement of the parties to have impugned judgment set aside in

appeal and consequently the award, to restore the reference.

6. On query from Court parties submit, the learned arbitrator has

since passed away. Further submission on behalf of parties is that on

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restoration of the reference, they will seek reconstitution of the

tribunal with the stated purpose of having award under section 30 in

terms of I.A. no.25 of 2022.

7. In view of submissions made and joint statements in the interim

application, impugned judgment is set aside in appeal with

consequence of the award also set aside. The reference is restored.

The parties are to seek reconstitution of the tribunal and obtain their

remedy in the reconstituted reference.

8. The appeal is disposed of.

(Arindam Sinha) Judge Prasant