Prahallad Khandelwal vs Vijay Khandelwal And Another

Arindam Sinha, J

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.

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.

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.

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.

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.

On query from Court parties submit, the learned arbitrator has since passed away. Further submission on behalf of parties is that on 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.

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.

The appeal is disposed of.

…………………………..