Allahbad High Court
A.K.KIRTY,GOPINATH
Kailashpati Singhania - Appellant
Versus
Ram Gopal Gupta - Respondent
Decided On : 08/15/1972
ARBITRATION - AWARD - INTERPRETATION - SUIT FOR ENFORCEMENT OF AWARD - MAINTAINABILITY - SECTION 47 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY - SECTION 32 OF THE ARBITRATION ACT, 1940 - APPLICABILITY - LIMITATION - ARTICLE 120 OF THE LIMITATION ACT, 1908 - APPLICABILITY.
Fact of the Case:
The plaintiffs and defendants were partners in a firm called M/s. India Supplies. Disputes arose between them, and they agreed to refer the disputes to arbitration. The arbitrator gave an award on 18th January, 1944, which was made the rule of the court on 2nd January, 1945. The plaintiffs filed a suit for a decree for Rs. 1,48,532/- with pendente lite and future interest at the rate of six per cent per annum, and for half share of the plaintiffs in certain assets. The suit was dismissed by the trial court.
Finding of the Court:
The court held that the suit was not barred by Section 47 of the Code of Civil Procedure, 1908, as the decree dated 2-1-1945, based on the award dated 18-1-1944, was declaratory in nature and did not entitle any party to receive any amount from the other party. The court also held that the suit was not barred by Section 32 of the Arbitration Act, 1940, as the section does not apply to decrees passed under Section 17 of the Arbitration Act, and muchless to a consent decree passed in proceedings under Section 17. The court further held that the suit was not barred by limitation as the cause of action for the suit could not possibly be the date of the award because under the award nothing as such was payable by any party to another party. The court also held that the plaintiffs were entitled to have adjustments made on the basis of the order of the Appellate Tribunal dated 12-11-1952 and that the contention of the respondents that the relevant order for purposes of adjustment was the order of the Income-tax Officer was not tenable.
Issues: 1. Whether the suit was barred by Section 47 of the Code of Civil Procedure, 1908? 2. Whether the suit was barred by Section 32 of the Arbitration Act, 1940? 3. Whether the suit was barred by limitation? 4. Whether the plaintiffs were entitled to have adjustments made on the basis of the order of the Appellate Tribunal dated 12-11-1952?
Ratio Decidendi: 1. Section 47 of the Code of Civil Procedure, 1908, does not apply to decrees passed under Section 17 of the Arbitration Act, 1940, and muchless to a consent decree passed in proceedings under Section 17. 2. Section 32 of the Arbitration Act, 1940, does not apply to decrees passed under Section 17 of the Arbitration Act, and muchless to a consent decree passed in proceedings under Section 17. 3. The cause of action for a suit for the enforcement of an award accrues when the contingency contemplated in the award occurs. 4. The plaintiffs were entitled to have adjustments made on the basis of the order of the Appellate Tribunal dated 12-11-1952 as the arbitrator had directed that the rights and liabilities of the parties inter se shall be determined after the assessment proceedings finally terminated.
Final Decision: The appeal was partly allowed and the decree of the court below was modified. The plaintiffs' suit for recovery of Rs. 1,48,582/- was decreed with pendente lite and future interest at the rate of 3 per cent, per annum. The plaintiffs' suit for the second relief was dismissed.
KIRTY, J. :- This appeal by the plaintiffs arises out of Suit No. 203 of 1953 instituted on 25th August, 1953. Two reliefs were sought by the plaintiffs; one was for a decree for Rs. 1,48,532/- with pendente lite and future interest at the rate of six per cent per annum, while the other was in respect of half share of the plaintiffs in certain assets. It was prayed that a commissioner be appointed for purposes of ascertaining the amount due to the plaintiffs in respect of such assets. The suit was contested by both the defendants and was dismissed in toto by the trial Court.
2. The material facts briefly are as follows:-
The parties to the suit belong to two well-known business families of Kanpur. They may be described as Singhanias and Guptas respectively. Admittedly, the Singhanias and Guptas for a number of years jointly carried on several business enterprises. One of such business enterprises was carried on under the name and style of M/s. India Supplies - a registered firm of which admittedly the two plaintiffs and the two defendants were partners. Certain disputes having arisen between the Singhanias and the Guptas, they agreed to have their disputes, not only in regard to the affairs of M/s. India Supplies but in regard to many enterprises as well, settled by arbitration. Accordingly, they entered into an arbitration agreement referring all the disputes to the sole arbitration of Sri Kanhaiya Singh. Besides the parties to the suit No. 203 of 1952, a number of other persons belonging to the families of Singhanias and Guptas, were also parties to the arbitration agreement. Admittedly, the abovenamed arbitrator gave an award dated 18th January. 1944. This was a composite award by which the disputes regarding each business or enterprises were separately dealt with. It appears that an application under Section 17 of the Arbitration Act was filed for making the award the rule of the Court. It further appears that certain objections were filed against the award. The application under Section 17 of the Arbitration Act appears to have been registered as Original Suit No. 31 of 1954 in the Court of Civil and Sessions Judge, Kanpur. This application was filed on 5th May, 1944, It was prayed therein that a decree be passed in terms of the award. In the proceedings initiated by the application under Section 17 of the Arbitration Act, the parties appear to have entered into a compromise, and, as a result of this compromise, the Court ultimately passed a consent decree. Although the decree has been termed as a consent decree, in pith and substance, however, it is a decree based on the award dated 18-1-1944. We are, however, concerned only with that part of the decree which incorporated the award given by the arbitrator in respect of M/s. India Supplies. The substantial question for decision in this appeal, apart from legal questions, is the construction of the award.
3. On the pleadings of the parties, the trial court framed a number of issues. Out of them, the following only need mention:-
1. Whether award between parties dissolved 'India Supplies' or directed plaintiffs to retire on payment of Rs. 50,000/- and other sums? If so, its effect?
2. Whether plaintiffs are entitled to claims mentioned in Schedule 'A' given at the foot of the plaint in the light of award? If so, effect and amount?
3. Whether suit is barred by limitation?
4. On Issue No. 1, the trial court recorded a finding that the firm M/s. India Supplies had not been dissolved but by the award the plaintiffs were deemed to have retired from the partnership. The court below, however, further held that the effect of retirement of the plaintiffs was that the firm in question was to be deemed to have been dissolved with effect from 18-1-1944. On Issue No. 2, the Court below held that the plaintiffs were not entitled to the amount claimed as per Schedule 'A'. This finding was based on the interpretation of the relevant part of the award. On the third issue, the court below
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