Heard Mr. S.K. Ghosh, the learned Counsel appearing for the appellant (claimant). The respondent is represented by the learned Senior Counsel Mr. D. Majumder.

2. This appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”) to challenge the judgment dated 8.12.2005 (Page-49) in the Title Suit (Arbitration) No.7/2003, whereby the learned District Judge, Hailakandi quashed the Award rendered by the sole Arbitrator on 27.1.2003 (Annexure-1), by allowing the petition under Section 34 of the Arbitration Act filed by the respondent. The Court held that the Award was made solely on the basis of presumption and therefore the same was set aside.

3. The appellant and the respondent are brothers and were partners of the firm i.e. M/s Union Food Industries, which was carrying on the business of oil extraction, Ata Chakki, Chira Mill etc. But a dispute arose between the two partners and the appellant Md. Abu Bakkar Barbhuiya in furtherance to his claim for a share in the partnership income, filed the Arbitration Petition No.17/2000 in the High Court, for nomination of Arbitrator, under Section 11 of the Arbitration Act. The respondent appeared in the proceeding and denied the existence of the Partnership Deed dated 14.7.1987 and objected to nomination of the suggested Arbitrator. But the Chief Justice referred to the independent power available to the Arbitrator under Section 16, to give a ruling on his own jurisdiction and after considering the decision in Konkan Railway Corporation Ltd. vs. Rana Construction reported in (2002) 2 SCC 388 held that the Arbitrator can decide on existence/validity of the agreement. Consequently on 28.2.2002 the Arbitrator proposed by the claimant was nominated. But while disposing of the Arbitration Petition No.17/2000, the Chief Justice left it open for the Arbitrator to decide on the existence/validity of the Arbitration Agreement.

4. When the arbitration proceeding was then initiated, the respondent through his application dated 17.9.2002 (Exbt.19) questioned the Arbitrator’s impartiality and raised a jurisdictional objection. But the Arbitrator proceeded to consider the matter on merit and decided that the claimant appellant is entitled to get Rs.6,01,066.50 from the other partner of the partnership farm plus interest and cost.

5. When the aggrieved respondent challenged the Award under Section 34 of the Arbitration Act, the learned District Judge primarily focused on the Arbitrator’s finding on Issue No.7. In the absence of any evidence on the Profit & Loss Account of the firm, the Arbitrator determined the alleged dues by referring to the electricity consumption bills of the Mill and accordingly notional sale and profit was calculated. Thus the Award was held to be based on presumption and accordingly the same was quashed by the Court.

6.1 Assailing the legality of the impugned decision, Mr. S.K. Ghosh, the learned Counsel for the appellant (claimant) contends that although the Award was based on 8 separate Issues, the entire Award was quashed by limited scrutiny of the finding on Issue No.7. The Counsel argues that because of the narrow supervisory role of Court under Section 34 of the Arbitration Act, unless the Award is found to suffer from the specified infirmities under Sub-Section (2) of Section 34, it can’t be disturbed by the Court on the limited challenge, permitted under Section 34 of the Arbitration Act.

6.2 The appellant’s lawyer agrees that in the absence of regular Books of Account of the firm, the payable quantum was determined with reference to the electricity consumption to notionally decide the sale and profit figures but he contends that this exercise can’t be said to be an impermissible exercise, in the context of the facts in the case.

7.1 On the other hand, the respondent justifies the impugned decision of the Court by contending that even if all the other Issues (barring Issue No.7) are decided in favour of