ABDUL KADIR SHAMSUDDIN BUBERE Vs. MADHAV PRABHAKAR OAK

JUDGEMENT

(1.) THIS is an appeal on a certificate granted by the Bombay High Court. An application was filed under S. 20 of the Arbitration Act, No. X of 1940, (hereinafter referred to as the Act) by the two respondents against the appellant praying that the arbitration agreement dated 27/02/1953 may be filed in court, arbitration be made accordingly, and thereafter a decree in terms of the award made by the arbitrator be passed.

(2.) THE circumstances in which the application was made were these. THEre is a forest in village Done, which belonged to three persons, namely, Madhav Prabhakar Oak, respondent No. 1, (hereinafter referred to as Oak), Babaji Chandrarao Rane, uncle of the second respondent (hereinafter referred to as Babaji), Gajanan Babaji Rane (hereinafter called. Gajanan). Oak had six annas share in the forest, Babaji eight annas share and Gajanan two annas share. It may be mentioned that Gajanan's share was purchased by the appellant in November 1944. On 22/10/1948, a partnership agreement was arrived at between Babaji, Oak and the appellant for cutting the forest. THE value of the forest for the three owners was fixed at Rs. 60,000 which was to be divided amongst them according to their shares. THE work of cutting was to be done by the appellant who appears to be an experienced forest contractor. Any income over and above the expenditure incurred in the cutting and the value of the forest was to be divided equally amongst the three partners; if there was any loss that was also to be borne equally by them. It appears, however, that nothing was done in pursuance of this agreement, apparently because a suit had been filed by two persons with whom there was an earlier agreement of 1939 about the cutting of this very forest. It appears also that in March 1951 Gajanan and the appellant executed another document in which the price of Gajanan's share to be paid by the appellant was raised. In May 1951 Babaji died. Consequently in May 1952 another agreement was executed between the appellant and the heirs of Babaji, namely, Anant Yeshwant Rane respondent No. 2 (hereinafter referred to as Anant), Ambikabai, widow of Babaji, Gajanan and his mother Devubai and Oak. This agreement referred to the earlier agreement of 1948 & was obviously necessitated on account of the death of Babaji. It confirmed that agreement and stated that it was drawn up because of the necessity of Anant, Ambikabai and Devubai being made parties to the settlement in the agreement of 1948. THE consideration of Rs. 60,000 was divided between the owners and Rs. 51,000 was to go to Oak, Anant and Ambikabai and the rest represented the price for which the appellant had purchase the share of Gajanan and his mother Devubai. Nothing seems to have been done in pursuance of this agreement either. In October 1952, another agreement was entered into between the appellant, the two respondents and one Khan Bahadur Divkar by which the cutting of the forest was assigned to Divkar for a sum of Rs, 1,00,000. This amount was to be divided between the appellant and the respondents; Anant was to get Rs. 44,800, Oak Rs. 35,700 and the appellant Rs. 19,500. Divkar was unable to carry out his part of this agreement. Eventually on 27/02/1953, an agreement was entered into between the appellant and the two respondents as Divkar had not carried out his agreement. It was agreed between the parties that the dispute with Divkar be got decided and the forest be cut in accordance with the agreements of 22/10/1948 and 5/05/1952. THE operative part of this agreement also contained a term for arbitration in Cl. 6(4), which is in these terms :-

(3.) THE application was opposed by the appellant. THE agreement of 27/02/1953, was admitted by the appellant; but it was contended that no reference should be made to the arbitrator and a number of grounds were urged in that connection. It is not necessary for purposes of this appeal to refer to all the grounds in reply to the application of the respondents. We shall only refer to those grounds which have been urged before us and they are as below :-