Govind Prasad Agrawal Vs. Bhurelalji Agrawal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/503754
SubjectArbitration
CourtMadhya Pradesh High Court
Decided OnFeb-16-1993
Case NumberMisc. Appeal No. 295 of 1990
JudgeD.M. Dharmadhikari and ;R.P. Awasthy, JJ.
Reported in1993(0)MPLJ821
ActsArbitration Act, 1940 - Sections 2 and 20
AppellantGovind Prasad Agrawal
RespondentBhurelalji Agrawal and ors.
Appellant AdvocateN.S. Kale, Adv.
Respondent AdvocateRavish Agarwal, Adv.
DispositionAppeal dismissed
Cases ReferredBanwarilal Kotiya v. P. C. Agarwal
Excerpt:
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- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 2 and 3. the arbitrators conversed on phone with senior most partner bhurelal as well......
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orderr.p. awasthy, j. 1. it is a misc. appeal under section 39 of the arbitration act (act in short) against the judgment and decree dated 11-4-90 passed by the second additional judge to the court of district judge, hoshangabad, in civil suit no. 2-a of 1989, making awards dt. 19-8-1988 and 28-3-1989, made by the arbitrators as rule of the court.2. there is not much dispute about the facts of the case which are as below:--bhurelal (respondent no. 1) is the father of respondent no. 2 gajanand and petitioner govind prasad, respondent no. 3 gopal prasad agrawal happens to be the son of bhurelal. all of the said four persons viz. bhurelal, gajanand, govind prasad and gopal prasad were and are running a partnership business at itarsi, district hoshangabad. the name of the said registered.....
Judgment:
ORDER

R.P. Awasthy, J.

1. It is a Misc. Appeal under Section 39 of the Arbitration Act (Act in short) against the Judgment and decree dated 11-4-90 passed by the Second Additional Judge to the Court of District Judge, Hoshangabad, in Civil Suit No. 2-A of 1989, making awards dt. 19-8-1988 and 28-3-1989, made by the arbitrators as rule of the court.

2. There is not much dispute about the facts of the case which are as below:--

Bhurelal (respondent No. 1) is the father of respondent No. 2 Gajanand and petitioner Govind Prasad, Respondent No. 3 Gopal Prasad Agrawal happens to be the son of Bhurelal. All of the said four persons viz. Bhurelal, Gajanand, Govind Prasad and Gopal Prasad were and are running a partnership business at Itarsi, District Hoshangabad. The name of the said registered partnership concern was and is Mohanlal Hiralal of Itarsi. Respondents 4 and 5 viz. Banwarilal and Gopal Prasad Agrawal were appointed as arbitrators as per arbitration agreement dt. 17-8-1988. The said arbitrators passed an award on 19-8-1988. In the said award itself all of the partners signed under endorsement that they have read the contents of the award and that they agree with it.

3. In the said award dt. 19-8-1988 itself it is mentioned as below:--

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4. After passing of the said award Bhurelal, Gajanand and Gopal Prasad submitted an application dt. 3-3-1989 to the arbitrators mentioning inter alia that Govind Prasad (petitioner in this case) was causing hindrance and obstruction in day to day running of the business of the partnership concern. It was prayed in the said application that the arbitrators may convene a meeting and decide the said matter in the said meeting. Thereupon, the arbitrators (respondents 4 and 5) sent a letter dt. 5-3-1989 attached with the said application dated 3-3-1989 to the petitioner Govind Prasad. The arbitrators informed the petitioner, Govind Prasad, that they would convene a meeting for deciding the said matter and resolving the said dispute on 14-3-1989.

5. In reply, Govind Prasad acknowledged the receipt of the said letter and submitted that it would not be possible for him to attend the said meeting on 14-3-1989. It was further submitted by him in the said letter that the said meeting may be convened on 19-3-1989 so that he may submit his reply in the said matter. Thereupon, the arbitrators informed all of the partners that the date of the meeting had been changed and had been fixed for 25- 3-1989 which could continue upto 26-3-1989. By the said letter it was also suggested that the partners should bring all the documents which might be in their possession to support their contention.

6. On 25-3-1989 the meeting was convened at the place and time for which information was given to the partners. In the said meeting Bhurelal did not appear on the ground of his failing health. Bhurelal sent a letter through his elder son Gopal Prasad for being submitted to panchas. In the said letter Bhurelal reposed his confidence in the arbitrators and submitted that he would be agreeable to and abide by the decision given by the arbitrators.

7. During the said meeting the arbitrators heard the contentions made by the partners who were present viz. the petitioner and the respondents No. 2 and 3. The arbitrators conversed on phone with senior most partner Bhurelal as well. Thereafter, the award dt. 25-3-1989 was passed and it was declared in the said award that it was merely supplementary to and a part of the previous award dt. 19-8-1988.

8. In the previous award dt. 19-8-1988 it was decided by the arbitrators that the amount would be drawn from the bank through the cheque signed by the petitioner and respondent No. 3 Gopal Prasad jointly. In the partnership deed dt. 30-10-1965 respondent No. 2 Gajanand was designated and appointed as Managing partner of the partnership concern. In the supplementary or additional award dt. 28-3-1989, it was directed that after the said award being passed any of the 2 partners amongst the respondents 1,2 and 3 would be competent to withdraw the amount from the bank by jointly signing the cheque for withdrawal of the amount. The terms or conditions granted in the previous award dt. 19-8-1988 to the effect that it would be possible for withdrawing the amount of the partnership concern from the bank only on the cheque being signed by petitioner Govind Prasad Agrwal also, was cancelled by the said supplementary or additional award.

9. After the said supplementary or additional award dt. 28-3-1989 being passed, the petitioner (Govind Prasad) moved an application dated 16-8-1989 raising various objections pertaining to the said award dated 28-3-1989. Subsequently, he moved an application dated 21-8-1989 to make the award dated 19-8-1988, absolute and rule of the court. The said petition dated 16-8-1989 was marked as I.A. No.5 and the subsequent petition dt. 21-8-1989 was marked as I.A. No. 6. As against it the respondents 1, 2 and 3 moved a petition dt. 16-8-1989 (I.A. No. 4) for making the award dated 19-8-1988 as amended by the supplementary award dt. 28-3-1989 as rule of the court.

10. The said facts contained in paragraph numbers 2 to 9 are not disputed. It is apparent from the record that after hearing the parties the learned Second Additional Judge to the Court of District Judge rejected the objections raised by the petitioner and made both of the awards dt. 19-8-1988 and 28-3-1989 jointly as rule of the court and passed the decree on the basis of the said awards.

11. It has been argued for the petitioner (Govind Prasad) that there was no arbitration agreement or reference made by the partners of the relevent firms for passing any award. After award dt. 19-8-1988 was passed, the arbitrators could not have had appointed themselves as arbitrators. Thus, for want of any arbitration agreement, the award passed by the arbitrators is without any jurisdiction and is null and void. Further an agreement entered into for the purposes of avoiding future dispute by meditation is not a reference for passing an award. The persons so appointed, though might have been called as arbitrators, but were actually mediators and they did not pass any award but have tried to reconciliate differences. The said reconciliation can not be called an award and thus, has no legal sanctity and could not have been made a rule of the Court.

12. By no stretch of imagination, the award itself can be said to be an agreement of arbitration which shall ever remain an award. In spite of it even it be assumed that the said condition of the said award is an arbitration agreement or is a reference, it has to be seen that it gave very limited power to the arbitrators. The said arbitrators could not have had anulled the award passed by them earlier and thus, they acted beyond their jurisdiction. Even if, the earlier award was not made rule of the Court, it had the sanctity of the award and it could not have had been changed or altered by the arbitrators themselves. After signing the award dated 19-8-1988 the arbitrators became functus officio. Thus, subsequent award dated 28-3-1989 is firstly, not an award and secondly, the arbitrators had no jurisdiction to pass any such award.

13. It has further to be seen that no specific dispute was referred to the arbitrators. For the purposes of raising a dispute, there should have been assertion of the claim by one party such as the respondents 1, 2 and 3 and denial of the said claim by the other party such as the petitioner. As there was no assertion of the claim and no denial of such a claim by any of the parties to the case, there was no referable dispute in the eye of law and hence the arbitrators had no jurisdiction to enter upon such a dispute. In fact there were only difference between the petitioner on one hand the respsondents No. 1 to 3 on the other in the matter of day to day running of the said partnership business, which the arbitrators merely tried to reconcile.

14. Difficulty in implementation of the award could not have been such a dispute which could have been referred to the arbitrators. The arbitrators could not be the executors of the award passed by them. This could have been done by the court alone. It has also to be seen that the petitioner had challenged the jurisdiction of the arbitrators vide his letter dated 25-3-1989. Therefore, his participation in the alleged arbitration proceedings does not estop him from challenging the jurisdiction of the said arbitrators.

15. In the second award the same matter was decided which was fully decided earlier by the award dt. 19-8-1988. The dispute which is once referred to the arbitration and considered in an award does not survive for another reference.

16. The arbitrators admittedly had talked with Bhurelal on phone. What conversation took place between the arbitrators and Bhurelal was not known to the present petitioner. The arbitrators were influenced by the said conversation on phone with Bhurelal, in making the award. Therefore, the arbitrators misconducted themselves.

17. The arbitrators decided such matters which were not referred to them. Further, the award was not passed within a period of 4 months from the date of reference. The court concerned also committed a glaring mistake, in making both of the awards rule of the court. The said 2 awards are contradictory to each other and therefore, could not coexist. Therefore, the Judgment passed by the court concern is patently illegal. The correct procedure would have had been that if the respondents 1, 2 and 3 wanted to get a different decision than given by the arbitrators in the award dated 19-8-1988 then and in that case they ought to have had got the first award dt. 19-8-1988 cancelled. Then they should have had entered into a fresh agreement of reference to the arbitrators for passing another award.

18. In reply it has been submitted that the parties to an arbitration agreement can agree to refer their future disputes also to the arbitrators. The only requirement of arbitration agreement is that it should be in writing and should be signed by the persons agreeing to refer their dispute. The award dt. 19-8-1988 not only contained the said written agreement but also contained an endorsement to the effect that all of the parties to the said agreement have read the said award and that they agreed with the award passed by the arbitrators. It has also to be seen that subsequently also Govind Prasad (appellant) moved a petition for making the said award a rule of the Court. Thus, by the said document and subsequent conduct of Govind Prasad, it is fully established that he also had agreed to refer the future disputes pertaining to the business of the said partnership concern. The said agreement is in writing and has been signed by the parties to the said agreement and hence is arbitration agreement within the meaning of sub Section (a) of Section 2 of the Act.

19. It has further to be seen that in the application dt. 10-3-1989 (page 56 of paper book) the petitioner did not submit to the arbitrators that they had nothing to do with the dispute or differences of the partnership and hence he would not participate in any meeting which might be convened by them. He only submitted that meeting might be postponed for 19th of March in place of 14th of March.

20. Thus, by such subsequent conduct also it is fully established that Govind Prasad Agrawal had agreed to refer future disputes pertaining to the business of the relevant firm.

21. As has been mentioned, it is a settled principle of law that if the parties agree they can refer their future disputes also to the arbitrators. Thus, the arbitrators had jurisdiction to decide the dispute. From several documents available on record, it is evident that the contention of the respondents 1, 2 and 3 was that Govind Prasad was causing obstruction and hindrance in day to day business of the partnership concern, whereas the contention of the petitioner was that it was not he, who was at fault but the respondents 2 and 3 who were responsible for misconducting themselves in the matter of the said partnership business. Thus, there was an identifiable dispute which could have been referred to the arbitrators and was actually referred by the three partners (respondents 1, 2 and 3) by writing a letter dated 3-3-1989 to the arbitrators.

22. The arbitrators convened a meeting on 25-3-1989 and heard what the parties of the arbitration agreement had to say. In the said process they heard Bhurelal also as to what he had to say in the said matter. As Bhurelal was absent on account of ill health they conversed with him on phone. Thus, the arbitrators did not misconduct themselves.

23. The arbitrators had power to injunct or to restrain any of the partner from interfering with the partnership business. Therefore, the arbitrators had jurisdiction to pass such an award. It has also to be seen that after going through the entire materials available to them they arrived at a proper conclusion. It has to be seen that there was overwhelming documentary evidence before the arbitrators indicating that the appellant was not co-operating in day to day business and was trying to create obstruction and hindrance in the partnership business with the intention of closing or ending the said partnership business. Therefore, the Court concerned has not committed any error in making the award dated 19-8-1988 as supplemented by the award dated 28-3-1989 as rule of the Court.

24. First point for determination in the present case is as to whether there was or not any arbitration agreement or reference to the arbitrators. Under Sub-section (a) of Section 2 of the Act only requirement for an 'arbitration agreement' being valid is that it should be in writing and that it should stipulate to submit present or future differences to arbitration. As has already been mentioned that all of the parties to the suit had signed the award dated 19-8-1988 below the endorsement to the effect that they had read the contents of the award and they agree with it. Thereafter, by moving an application on 21-8-1989 the petitioner prayed that the said award dt. 19-8-1988 be made a rule of the Court. This subsequent conduct of the petitioner also goes to show that he also had agreed to refer future differences to arbitration. Thus, an agreement in writing signed by all of the parties to the said agreement for referring future disputes is contained in the award itself. It has also to be seen that there is no prohibition anywhere in the Act to the effect that an award cannot contain any arbitration agreement for referring future disputes. In this regard Vaidya Harishankar Laxmiram Rajyaguru of Rajkot v. Pratapray Harishankar Rajyaguru of Rajkot, 1988 (Vol. 3) SCC at page 21, can be referred. The facts of the said authority are quite similar to the present case. In almost similar circumstances the subsequent award was held to be vaild.

25. In the said authority of the Apex Court reported in Vaidya Harishankar Laxmiram v. Pratapray Harishankar Rajyaguru of Rajkot (supra), it was observed as below in para No. 6:--

'6. The main objection to the award is that there was no written agreement signed by both the parties to refer the disputes to arbitration. It is clear from the narration of facts that the parties had agreed to refer the dispute to the arbitrator. The award signed by both the parties, about which there is no factual dispute, reiterated the fact that the parties had agreed to refer the dispute to the arbitration of the said arbitrator and that he made an award. All these are in writing and signed by all the parties. This, in our opinion in the light of the facts and circumstances of the case, can certainly be construed to be a proper arbitration agreement in terms of Section 2(a) of the Act. In this connection reference may be made to the observations of this Court in Prasun Roy v. Calcutta Metropolitan Development Authority, where all the relevant authorities on this point have been discussed. See also in this connection the decision of the judicial committee in Choudhry Murtaza Houssein v. Mst. Bibi Bechunnissa. The observations in the said decision were made in different context. But in the present context, it is clear that the conduct of the parties that there was an arbitration agreement and by signing two awards it could be said that the parties had agreed to refer the disputes in writing to the arbitration of the named arbitrator. This agreement was done twice, firstly by signing an endorsement below the award and secondly, by entering into an agreement in the form of a letter dated August 14, 1978 (Ex. 40). '

26. As already been mentioned that formal requirement for only arbitration agreement is that it should be in writing and that there should be mutuality of the parties, that is to say that every party to the agreement should agree to refer the present or future dispute to arbitration. In this context Russel on arbitration may be referred wherein at page 49 (9th Edition) this instance has been quoted, 'the written agreement may be made by the endorsement by counsel of their briefs in an action, the whole question being whether there is in fact an agreement between the parties recorded in writing.' Thus, there is no form prescribed for an arbitration agreement and that there is no prohibition any where that an award cannot contain an agreement in writing to submit future differences to arbitration.

27. In this regard Mukundanlal Pakrashi v. Prokash Chandra Pakrashi, AIR 1939 Cal. at page 739, can also be referred to in which the facts were that the first award had not decided some of the matters referred to the arbitration, as the parties were not prepared with their statements. It was definitely stated in the first award that there will be a supplementary award and, in pursuance of the said reservation, the second award was given. Under the said circumstances, it was held that two awards taken together make a complete award disposing of the dispute referred to arbitration and the arbitrators cannot be said to be functus officio at the time when the second award was given. In the same context Nanak Chand v. Banarsidas, AIR 1930 Lah. at page 425, can also be cited in which authority it was held that an arbitrator can pass successive awards if he is authorised by the parties to do so.

28. Thus, in view of the definition of arbitration agreement given in Section 2(a) in the Act, and also in view of the authority reported in Vaidya Harishankar Laxmiram Rajyaguru of Rajkot v. Pratapray Harishankar Rajyaguru of Rajkot, 1988 Vol. 3 SCC at page 21, it cannot be said that there was no arbitration agreement in the case, and as such, arbitrators were not competent to pass the award dt. 28-3-1989.

29. Pir Mohammad Shaft and Ors. v. Cantonment Board and Ors., AIR 1987 J and K page 21, the memorandum of settlement only provided that if any question arose about the interpretation or implementation of the terms of the settlement and also in cases of error or discrepancy, matter should be referred to the person named in the said clause. Under the said circumstances, it was held that the said clause did not constitute an arbitration clause and the said clause cannot be termed as an agreement for referring any dispute or difference between the parties within the meaning of Section 2(a) of the Act. In the present case, it is specifically mentioned in the arbitration clause of the award dt. 19-8-1988, that if there be any practical difficulty or difference of opinion in implementation of the award or any confusion about the interpretation (of the award) the said matter would be referred to panch Banwarilal and Gopal Prasad. Thus, the arbitration clause in the award in the present case clearly falls within the ambit of the definition of an arbitration agreement given in Section 2(a) of the Act. Therefore, the said authority Pir Mohammad Shafi and Ors. v. Cantonment Board and Ors., AIR 1987 Jammu and Kashmir at page 21, is distinguishable on facts from the present case.

30. As has already been observed that since the parties to the arbitration agreement signed the award below the endorsement that they have signed the award after reading it and they agree with it, it has to be held that two persons named therein viz. respondents 4 and 5 had not appointed themselves as arbitrators but were appointed as arbitrators by the parties to the award dt. 19-8-1988. By the clause contained in the award, the arbitrators were given power to resolve the future difference and therefore it cannot be said that the said arbitrators were only mediator and not arbitrators. Therefore, P. Narayanan Nair v. Achuthan Nair, AIR 1974 Kerala at page 51, has no application on the facts of the present case.

31. Had there been no arbitration agreement in writing for submitting future differences to arbitration, then the arbitrators would have had definitely become functus officio after passing the award dt. 19-8-1988. However, as has already been observed that there is an arbitration agreement in writing signed by all of the parties to the said agreement in which it has been agreed that future difference would be submitted to arbitration, the arbitrators had the authority to pass subsequent or supplementary award dt. 28-3-1989. In view of the said arbitration clause in the award dt. 19-8-1988 itself, Deep Narain Singh v. Dhaneshwari and Ors., AIR 1960 Patna at page 201, M.S. Ramaiah v. The State of Mysore, AIR 1973 Mysore at page 17, and observation made by Russel on arbitration at page 298 (15th edition) have no application on the facts of the present case. It has to be seen that same matter as was referred and decided by earlier award dated 19-8-1988 was not decided by the award dt. 28-3-1989. It is being reiterated that the arbitrators did not become functus officio in view of the arbitration agreement in the award dt. 19-8-1988.

32. By letter dated 3-3-1989, three of the partners to the said registered firm referred their differences to the arbitrators. In the said reference, it was specifically mentioned that Govind Prasad was not signing cheques and on account of it, it had become rather impossible to run day to day business of the said partnership concern. It was further mentioned in the said reference that petitioner Govind Prasad was causing hindrance and obstruction in running of the partnership business. Govind Prasad denied the said contention by his letter dated 25-3-1989 written by him and submitted that it was not he who was at fault but it were respondents 2 and 3 who were indulging in unfair practices. Therefore, identifiable dispute was as to whether Govind Prasad was or was not denying to/Sign cheques for withdrawing amount of the firm from the bank for executing works undertaken by the partnership concern. It was also identifiable dispute as to whether Govind Prasad was or was not causing obstruction or hindrance in day-to-day business of the partnership concern or, as was the contention of Govind Prasad, whether it were the respondents 2 and 3 who were indulging in unfair practices. Consequently it cannot be said that there was no referable dispute in the present case. Hence P. Narayanan Nair v. Chuthan Nair and Anr., AIR 1974 Kerala at page 51, is distinguishable on facts from the present case.

33. Pearl Hosiery Mills, Ludhiana v. Union of India, AIR 1979 Delhi 64, is the authority relating to Section 34 of the Act and it should be read in that context. In the said authority itself it has been held that where the dispute of difference is obvious there is no difficulty in staying the suit under Section 34 of the Act. Further, if there be a conflict regarding the very existence of the dispute or difference, then the objector filing the said application has to specify as to what is the dispute and what is the difference as well as what is the arbitration clause. Obviously, this is not the situation here. There is an arbitration clause in the award dated 19-8-1989 and in pursuance of the said arbitration agreement, differences were referred to the arbitrators. Consequently, Pearl Hosiery Mills, Ludhiana v. Union of India (supra) is of no help to the appellant.

34. It is correct that the appellant is not estopped from challenging the jurisdiction of the arbitrators. It is so because he had challenged the jurisdiction of the arbitrators in the letter dated 25-3-1989 written by him. Nevertheless, it has to be seen that in spite of the said challenge, the arbitrators had obviously the jurisdiction to pass the subsequent award and hence Dlip Construction Company v. Hindustan Steel Ltd., 1973 MPLJ 786 = AIR 1973 M.P. 261, is also of no help to the appellant.

35. In the supplementary award dated 25-3-1989, it is mentioned that the arbitrators heard in detail the parties to the arbitration agreement who were present on 25-3-1989. It is also mentioned that the parties to the said agreement produced some documents also which were perused. It was not essential on the part of the arbitrators to record formal order-sheet or to record statements of the said persons who were present and heard in detail by the arbitrators in the arbitration proceedings. As the partners, who were present in the said meeting, were heard by the arbitrators, they also conversed with Bhurelal on phone, who was a senior partner of the said firm and was not present in the said proceedings on account of his ill health. Merely because the arbitrators heard on phone Bhurelal as well as to what he had to say, when they had heard the present and remaining partners also, it cannot be said that the arbitrators misconducted themselves in the said arbitration proceedings.

36. As would be obvious from the contents of the supplementary award dated 28-3-1989 that the arbitrators only heard the three partners who were present and only perused the documents produced before them, it is clear that opportunity to cross-examine any person was not given to any of the partners. The arbitrators merely heard the said three partners who were present in the said proceedings and conversed with Bhurelal on phone. They also perused the documents produced before them. Therefore, the question of receiving evidence behind the back of any party does not arise. Consequently, the observation made by Russel on arbitration at page 125 (Ninth edition) Payyavula Vengamma v. Payyavula Kesanna and Ors., AIR 1953 SC at page 21. have no application on the facts of the present case.

37. It has to be seen that the arbitrator is not bound by rules or evidence or procedure, but must observe fundamental principles of natural justice. Please see State of M.P. v. Satyapal Wasson, 1979 MPLJ 208.

38. The facts reported in Ardeshar Irani v. The State of M. P., 1974 MPLJ 514 = AIR 1974 M.P. 199, are quite distinguishable from the present case. However, the ratio decidendi laid down in the said case in para 13 of the said authority, has been followed in the present case. The said observation is as below:--

'Where the facts of a case disclose a defect of a kind which would render the award invalid in the opinion of the Court, the award must be set aside. The defect disclosed must have the effect of rendering the award invalid, being so related to the award as the cause and effect in order to invoke this clause 'is otherwise invalid' in Section 30 of the Act. But subject to this restriction it is for the Court to decide whether the defect is of such a kind as to render the award invalid.'

39. The defect disclosed in the present case, in the opinion of this Court, does not render the award invalid.

40. It cannot be said that the arbitrators acted without any material available on record or gave their finding on the basis of mere contention of only one party. The documents contained in blue paper book from page Nos. 103 to 111 go to support the contention of respondents 1 to 3 that the petitioner was not signing the cheques and was not co-operating in the partnership busines. Govind Prasad (petitioner) had written letter Ex. P-14 dated 5-2-1989 to Punjab National Bank that the validity of guarantee bonds be not extended and the fixed deposit receipts in his name be returned to him. Letter dated 1-3-1989 Ex. P-15 was written for and on behalf of the Firm Seth Mohanlal Hiralal for encashing the cheque of Rs. 5,15,000/- (five lacs fifteen thousand). The said cheque was sent by the bank authority to Govind Prasad for being signed. It does not appear that the said cheque was signed by Govind Prasad. The documents contained in blue paper book from page 106 to 111 go to indicate that Govind Prasad was not appearing in the meetings convened by the officials of the Public Works Department. Therefore, it cannot be said that the finding of the arbitrators were given on the basis of mere contention of only one side. It can be very well said that the findings given by the arbitrators was given on the basis of documentary evidence. Consequently, Thawardas v. Union of India, AIR 1955 SC 468, has no application on the facts of the present case.

41. It has also to be seen that the Court does not sit in appeal over the conclusion of the arbitrator by re-examining and re-appraising evidence considered by the arbitrator and hold that the conclusion reached by the arbitrator is wrong. Please see Union of India v. Kalinga Construction Co., AIR 1971 SC 1646 and Hindustan Tea Co. v. Sashikant and Co., AIR 1987 SC 81.

42. It has been argued for the petitioner that in the partnership deed dated 30-10-1965 Gajanan was appointed as the managing partner of the partnership concerned. But, in the award dated 19-8-1988, the power to draw cheques from the bank was given only to the petitioner and Gopal Prasad (respondent No. 3). Thus, by the term and condition of the award dated 19-8-1988, the powers of Gajanan who was designated as a managing partner in clause No. 6 of the deed of partnership, were withdrawn. However, by virtue of the subsequent and supplementary award dated 28-3-1989 the said power was withdrawn from the petitioner and the petitioner was virtually and in effect ousted from the partnership business.

43. It has to be seen in this regard that Gopal Prasad (respondent No. 3) happens to be the son of Gajanan. Therefore, it is obvious that the arbitrators considered that the side of Gajanan was well represented through his son Gopal Prasad. As such there was no ouster of Gajanan from the said partnership business. As has already been observed that on perusing the documentary evidence available to them, the arbitrators came to a conclusion that Govind Prasad was causing obstruction and hindrance in day to day business of the partnership concern and hence the power to get the amount of the partnership concern, withdrawn from the bank, under the signature of the petitioner, was withdrawn. It is a settled principle of law that the Court or the arbitrators can injunct or restrain a partner from causing hindrance or obstruction in the partnership business. Please see Suresh Kumar v. Amrit Kumar, AIR 1982 Delhi 131. It has also to be see that the share of profit or loss of Govind Prasad (petitioner) remains the same and has not been curtailed by the arbitrators.

44. By reading provisison contained in Sections 2(a), 2(e), (9), 20 and rule 3 of schedule 1 of the Act, it is clear that if there be an 'arbitration agreement' within the meaning of Sub-section (a) of Section 2 of the Act, then reference under Section 2(e) of the Act can be unilateral also. This view is supported by the authority of Apex Court, reported in Banwarilal Kotiya v. P. C. Agarwal, AIR 1985 SC 1003.

45. In the present case, reference (under Section 2(a) of the Act) was made by letter dated 8-3-1989. The supplementary award was given on 28-3-1989. Therefore, it is not correct to say that the award was given after expiry of four months.

46. Consequently, and in the result, in the opinion of this Court the lower Court did not commit any error in making the award dated 19-8-1988 as amended by the supplementary award dated 28-3-1989 rule of the Court. There is only an error of expression in the Judgment and decree passed by the lower Court inasmuch as it is mentioned therein that the awards dated 19-8-1988 and 28-3-1989 are jointly being made a rule of Court. Obviously, the purport and meaning of the said expression was that the Court concerned wanted to make the award dated 19-8-1988 as amended by the award dated 28-3-1989, rule of the Court.

47. Consequently, but for amending and changing the said expression to the extent that the award dated 19-8-1988 as amended by the supplementary award dated 28-3-1989 is made rule of the Court, the present appeal fails and is disallowed.

48. However, looking to the facts and circumstances of the case, it is ordered that the parties to the case shall bear their own costs. For the purpose of drawing schedule of costs, pleader's fee as per rule, if certified.