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High Court Of Madhya Pradesh
M. Hidayatullah, C. J. and G. P. Bhutt, J.
SHEORAMPRASAD RAM NARAYANLAL BANIA - Appellant
Versus
GOPALPRASAD PARMESHWARDAYAL SHUKLA - Respondents
Misc. First Appeal 15 Of 1955
Decided On : 07/14/1958
ARBITRATION - Award - Setting aside - Grounds - Failure of arbitrators to appoint umpire - Delay in making award - Suppression or substitution of documents - Exclusion of partnership properties and inclusion of properties belonging to strangers - Incomplete enquiry - Enquiry without notice to party - Disclosure of award to party and change and ante-dating thereof - Legal misconduct of arbitrators - Award not patently partial - Appeal against order refusing to set aside award - Maintainability.
Fact of the Case:
The plaintiff and the first defendant were partners in a firm. Disputes arose between them and they appointed two arbitrators to settle the disputes. The arbitrators gave an award on 17-8-1951, which was registered on 3-9-1951. The first defendant made an application to the lower Court under Section 14 of the Arbitration Act, 1940, for notice to the arbitrators to file the award. He also stated in that application that he challenged the award on various grounds. The grounds, however, were not specified. The application was registered as miscellaneous judicial case No. 10 of 1951. In the meantime, the lower Court was abolished. Accordingly the application was transferred to the Court of the District Judge, rajnandgaon, where it was registered as miscellaneous judicial case No. 27 of 1953. Thereafter, the lower Court was restored, and the application was retransferred to it and registered as civil suit No. 88-A of 1954.
Finding of the Court:
The Court held that the failure of the arbitrators to appoint an umpire did not vitiate the award. The Court also held that the delay in making the award was not fatal, as the parties had acquiesced in the delay and the Court had power to extend time for making the award. The Court further held that the arbitrators did not suppress or substitute any documents. The Court also held that no property of the partnership was left out of the award and no property belonging to strangers was included in it. The Court also held that the enquiry was not incomplete. The Court also held that no proceedings were taken by the arbitrators without notice to defendant 1. The Court also held that the award was not disclosed to the plaintiff, or changed or ante-dated, as alleged. The Court also held that the award was not patently partial to the plaintiff and could not be assailed on that ground.
Issues: 1. Whether the failure of the arbitrators to appoint an umpire vitiated the award? 2. Whether the delay in making the award was fatal? 3. Whether the arbitrators suppressed or substituted any documents? 4. Whether any property of the partnership was left out of the award and any property belonging to strangers was included in it? 5. Whether the enquiry was incomplete? 6. Whether any proceedings were taken by the arbitrators without notice to defendant 1? 7. Whether the award was disclosed to the plaintiff, or changed or ante-dated, as alleged? 8. Whether the award was patently partial to the plaintiff?
Ratio Decidendi: 1. The failure of the arbitrators to appoint an umpire does not vitiate the award, as the parties are free to waive or vary the condition that an umpire be appointed. 2. The delay in making the award is not fatal, as the parties may acquiesce in the delay and the Court has power to extend time for making the award. 3. The arbitrators did not suppress or substitute any documents. 4. No property of the partnership was left out of the award and no property belonging to strangers was included in it. 5. The enquiry was not incomplete. 6. No proceedings were taken by the arbitrators without notice to defendant 1. 7. The award was not disclosed to the plaintiff, or changed or ante-dated, as alleged. 8. The award was not patently partial to the plaintiff.
Final Decision: The appeal against the order refusing to set aside the award was dismissed with costs.
( 1 ) THIS is an appeal of the first defendant, Sheoram Prasad, against the order passed by the Court of Additional District Judge, Rajnandgaon, in Civil Suit No. 86 a of 1954, refusing to set aside an award.
( 2 ) FIRM S. S. Gupta Bidi Works, Rajnandgaon, belonged jointly to Mst. Sheodulari, and the first defendant who is her husband's younger brother. Mst. Sheodulari is the wife of the third respondent, Sheogopal and step-mother of the plaintiff sheokumar, respondent 4. The partnership acquired some immoveable properties at Rajnandgaon and other places. By a registered deed ated 27-7-1945, Mst. Sheodulari transferred her interest in the business and the properties to the plaintiff. On 1-12-1948, the plaintiff and the first defendant took Radheshyam, defendant 3, as a partner of -/4/- share in the partnership business, the remaining -/12/- share being owned equally by the plaintiff and the first defendant. The irnmoveable properties continued to be owned by the plaintiff and the defendant 1 exclusively.
( 3 ) DISPUTES having arisen between the plaintiff and defendant 1, they appointed gajanand Prasad, respondent 2, as an arbitrator by a deed of agreement, dated 53-1950. Subsequently they also appointed Gopal Prasad, respondent 1, on 20-31950, as an arbitrator and on 29-3-1950, they referred the disputes to both of them for arbitration. The arbitrators gave an award on 17-8-1951, which was registered on 3-9-1951. By the award they settled accounts of the partnership business and divided the irnmoveable properties between the plaintiff and the first defendant. ( 4 ) ON 12-11-1951, the first defendant made an application to the lower Court under Section 14 of the Arbitration Act, 1940, for notice to the arbitrators to file the award. He also stated in that application that he challenged the award on various grounds. The grounds, however, were not specified. The application was registered as miscellaneous judicial case No. 10 of 1951, In the meantime, the lower Court was abolished. Accordingly the application was transferred to the Court of the District Judge, rajnandgaon, where it was registered as miscellaneous judicial case No. 27 of 1953. Thereafter, the lower Court was restored, and the application was retransferred to it and registered as civil suit No. 88-A of 1954. In that suit, only the present respondents were impleaded as defendants. Radheshyam was not made a party as, according to the first defendant, he had retired from the partnership on or about 3-1-1950.
( 5 ) ON 4-12-1951, the plaintiff also made an application to the lower Court under sections 14 and 17 of the Arbitration Act, in which he prayed for notice to the arbitrators to file the award and for passing a decree in accordance with its terms. The application was registered as civil suit No. 3-A of 1951 and on transfer to the court of the District Judge, as civil suit No. 2-A of 1953. When, on the reconstitution of the lower Court, the application was retransferred to it, it was registered as civil suit No. 86-A of 1954. Plaintiff had impleaded radheyshyam as defendant 2 but he was later given up as no relief was claimed against him. The other defendants were the present appellant (defendant 1) and the two arbitrators (defendants 3 and 4 ).
( 6 ) BOTH the applications were consolidated, and evidence was recorded and judgment delivered in the plaintiff's suit (No. 86-A of 1954 ). The lower Court disallowed the objections raised by defendant 1 and passed a decree in terms of the award. Hence this appeal.
( 7 ) A preliminary objection was raised on behalf of the plaintiff to the maintainability of the appeal on the grounds that have been raised. The contention is that since the lower Court has passed a decree, an appeal under Section 17 of the Arbitration Act cannot lie except on the ground that the decree is in excess of or not in accordance with the award. The appeal, however, is against the order refusing to set aside an award and is covered b
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