Narayan Prasad Lohia vs Nikunj Kumar Lohia

3. This appeal is directed against the order dated November 14, 2006 by which a Division Bench of the Calcutta High Court allowed the appeal preferred by the respondent and set aside the order dated May 16, 2006 passed by a Single Judge of the High Court on an application for execution, arising from an arbitration award, directing the parties to maintain status 2 quo. The Division Bench was apparently fully conversant with the relevant facts and hence, it allowed the appeal by a brief order without stating the basic facts of the case. It was thus left open to the appellant to take us through the facts of the case and in turn it falls upon us to uphold the decision of the High Court by stating the relevant facts.

4. This appeal arises from an arbitration award that was intended to settle a family dispute but which apparently failed to satisfy all the contending parties. Objections against the award were filed in the High Court and a protracted litigation commenced. In course of the long drawn proceedings, it seems the appellant tried to resolve his disputes with the two objectors not at the same time but by dealing with them separately and one by one. In that process some slips were made here and there and as a result the whole thing comes unstuck for the appellant.

5. The relevant facts of the case may, in brief, be stated as follows:

6. An arbitration award dated October 6, 1996 confirmed, subject to some modifications, a family settlement under the memorandum of understanding dated June 24, 1996 between five parties. The parties to the award were (I) Bal Govind Lohia (II) Narayan Prasad Lohia (the appellant) (III) Nikunj Kumar Lohia (the respondent) (IV) Smt. G. Lath and (V) Mukund Lath. In furtherance of the award and for its implementation the 3 appellant and the respondent entered into a memorandum of understanding dated May 4, 1997. Nevertheless, objections to the award were filed in the Calcutta High Court by the respondent Nikunj Kumar Lohia (AP No.406/1997) and Bal Govind Lohia (AP No.53/1998). A single judge of the High Court allowed both the objection cases and set aside the arbitrators' award. The main judgment was passed on November 17, 1998 in AP No. 53 of 1998 filed by Bal Govind Lohia. The objection filed by the respondent (AP No. 406 of 1997) too was allowed by another order passed on the same day following the judgment passed in AP No.53 of 1998. Against the judgment and orders passed by the single judge the appellant filed two appeals before the division bench of the Court, APO No.620 of 1999 arising out of AP No.53 of 1998 (Bal Govind's objection) and APO No.619 of 1999 arising from AP No.406 of 1997 (the respondent's objection). Both the appeals were dismissed by the division bench. Once again the main judgment dated May 18, 2000 was passed in APO No.620 of 1999 following which APO No.619 of 1992 was dismissed by a brief order dated July 14, 2000.

8. Thus the matter came back to the High Court. At this stage, it appears that the appellant was able to resolve some of his disputes with the respondent who addressed to him a letter dated August 9, 2003 stating that though he had earlier filed an appeal (sic objection) he was no longer 6 interested in contesting the proceedings. The respondent addressed another letter dated August 23, 2003 to the Registrar, Original Side, Calcutta High Court. In this letter he reiterated that he was no longer interested in contesting the two appeals (APO Nos.619 and 620 of 1999) preferred by Naryan Prasad Lohia against him and others. He further stated that his objection (AP No.406 of 1997) against the arbitrators' award may also be treated as dismissed as withdrawn `inasmuch as the award already passed was agreed between the parties by the joint Arbitrators, were duly given effect to, implemented, as also by consent of the parties'. He further stated that he had no concern with the other objection against the award filed by Bal Govind Lohia (AP No.53 of 1998). He requested the Registrar to put up the letter before the division bench before whom the appeal was pending for hearing. On August 25, 2003 the respondent also filed an affidavit to the same effect as stated in the letters to the appellant and the Registrar of the High Court. In view of the development the division bench of the High Court before which the two appeals were pending on remand by this Court passed an order on August 27, 2003 the relevant extract from which is as follows:

12. While SLP No.8954 of 2005 was pending before this Court some further development took place in the High Court between the respondent and the appellant. The respondent filed an application before the High Court in the disposed of appeals stating that the arbitrators award was based on and it confirmed, subject to some modifications, the memorandum of understanding between the parties dated June 24, 1996 but in the operative portion of the division bench decision, upholding the award, the date of the memorandum of understanding was stated as May 4, 1997. The respondent made the prayer before the High Court to correct the date of the memorandum of understanding as June 24, 1996.

(emphasis added)

18. It is thus to be seen that though the appellant and Bal Govind Lohia were able to arrive at a settlement, the terms in which the order was passed, dismissing the appeal as infructuous, clearly left the order of the single judge, upsetting the award, subsisting and undisturbed. Hence, when the respondent's appeal against the order directing to maintain status quo came up for final disposal the division bench rightly held that their was no award in existence and their was no question of putting a non-existent award into execution. The division bench further observed that since there was no 12 award, the order passed by the single judge in execution had to be set aside; it did so and allowed the appeal.

19. In the facts and circumstances of the case as narrated above the order of the division bench brought under appeal is quite unexceptionable and calls for no interference. The filing of the appeal against this order before this Court is wholly misconceived. The proper course for the appellant was perhaps to file a review petition for modification of the order dated June 28, 2006 by which APO No.620 of 1999 was dismissed by the division bench of the High Court as infructuous.

20. On hearing counsel for the parties and on a careful consideration of the materials on record we find no substance or merit in this appeal. It is, accordingly, dismissed but with no order as to costs.