IMPORTANT POINT
An interim award is conclusive on the issues it decides and cannot be revisited, upholding the principle of res judicata in arbitration proceedings.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. Both the present challenges arise out of consecutive orders passed by the learned Arbitrator in connection with the self-same arbitral proceedings between the parties.

2. The facts of the case in brief are that the respondents, as claimants, filed the arbitral proceedings claiming damages, declaration and injunction on the allegation that the respondent/present appellant acted in breach of the contractual and statutory terms of confidentiality and loyalty by carrying on a rival business in a clandestine manner to the detriment of the interest of the partnership firm, of which the appellant is a 50% partner whereas the claimants/respondent nos.1 and 2 are partners having 25% share each. The respondent no.3 is the partnership firm itself.

3. The respondent/present appellant filed a statement of defence with counter claim for an award of payment of his proportionate 50% share in the profits earned by the claimant/respondent no.3-firm by continuing to carry on business after dissolution of the firm on November 17, 2018.

4. The partnership firm, it may be mentioned here, does business in Tobacco Gul under the name and style of ‘Musa Ka Gul’.

5. On the prayer of the respondent/present appellant made in an application for interim award under Section 31(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the 1996 Act”) the erstwhile Arbitrator (since deceased) passed an interim award on November 12, 2020. The two issues on which such interim award was passed were;

(a) Whether on a true construction the Partnership Deed dated 1st April 2006, is a partnership at will; and

(b) If so, whether by notice of dissolution dated 17th November, 2018, served by the Respondent on the other partners, the firm stands dissolved.

Both the issues were held in the affirmative. The erstwhile Arbitrator held that the partnership was a partnership at will and that it stood dissolved by the notice dated November 17, 2018, served by the respondent/present appellant, which was treated to be a notice of dissolution of partnership.

6. The said award was challenged before this Court under Section 34 of the 1996 Act, which was dismissed, upholding the interim award. In a challenge to such order under Section 37 of the 1996 Act, the concerned Division Bench substantially affirmed the award, apart from setting aside certain observations. A challenge before the Supreme Court by way of a Special Leave Petition by the claimants/respondents met with failure.

7. Subsequently on the demise of the erstwhile Arbitrator, the present Arbitrator was appointed by the Court to resolve the dispute between the parties. The said learned Arbitrator passed two orders on May 15, 2024.

8. By the first order, an application filed by the respondents/appellant under Section 16 of the 1996 Act was rejected, which is the subject-matter of challenge in AP (Com) 677 of 2024.

9. By the next order, the Arbitrator invoked the provisions of Section 26 of the 1996 Act, appointing one Mr. Kajol Kumar Guha Ray, a Chartered Accountant, to ascertain the total sales of the product “Musa Ka Gul”, sold by three entities, being one M.S. Industries, a partnership firm, a sole proprietorship having the same name, and another proprietorship concern by the name of Md. Musa Tobacco Company.

10. M.S. Industries, the proprietorship firm, belongs to the wife of the present appellant. In the partnership firm by the name of M.S Industries, the son and wife of the present appellant are partners and the present appellant himself is allegedly the proprietor of Md. Musa Tobacco Company.

11. The said second order has been challenged in APO No. 89 of 2024.

12. Learned senior counsel appearing for the appellant places reliance on Indian Farmers Fertilizer vs. Bhadra Products reported at (2018) 2 SCC 534, for the proposition that if there is a final determination of an issue between the parties, the same cannot be re-adjudicated all over again. The Sup