M GEORGE Vs. RAJU M MATHEW

JUDGEMENT

(1.) The Order of the Court was pronounced by Gopalan Nambiyar, Ag. C. J. - This revision petition is against the order of the Sub Court, Pathanamthitta in Arbitration O.P. No. 1 of 1970. The petitioner and the cr. petitioner were partners of a firm called M. George and Brothers Bankers, Kozhencherry. There was a notice of dissolution of the firm issued by the one to the other; in response to which the arbitration clause in the agreement was invoked and one of the partners appointed an arbitrator Mr. K. V. Joseph. As the other partner did not appoint his arbitrator, a petition under S.8 of the Arbitration Act, was filed to compel appointment of an arbitrator by the other partner or to have arbitration proceedings conducted by Mr. K. V. Joseph as the sole arbitrator. That resulted in the appointment of an arbitrator on behalf of the other partner also. As arbitration proceedings did not progress any further, I.A. No. 941 of 1971 was filed for appointment of a Receiver. The same was dismissed by order dated 18th July 1973. On 16th August 1973, I.A. No. 456 of 1973 was filed for reviewing the said order on the ground that it was vitiated by error apparent on the face of the record and that there was fraud on the part of the counter petitioner. To substantiate the contentions taken in support of the review, I. A. 473 of 1973 was filed for permission to take out summons to the Income Tax Officer for production of certain records. The counter petitioner resisted the application contending that it was not maintainable as the court had become functus officio with the passing of the final order on the O. P., and that for the same reason it had no jurisdiction either to appoint a Receiver or to summon documents. By its order dated 5th June 1974, the court held that the reference was pending before the Arbitrators and the court had jurisdiction under S.41(b) read with the II Schedule of the Arbitration Act, to appoint a Receiver. I.A. No. 473 of 1973 was allowed subject to the relevancy of the documents being considered and decided at the time of hearing (the statement in Para.3 of the order under revision, where it is stated that I. A. 456 of 1973 was allowed seems to be a mistake for I.A. 473 of 1973). Against the said order, C. R. P. 662 of 1974 was filed in this court. This court concurred with the court below on the question of jurisdiction and remitted the matter back to the court to consider the question whether the arbitrators had become functus officio or not. That question was considered by the court below in the order against which this revision has been preferred.

(2.) Two arguments were advanced before the court below, which had been repeated before us also in this revision petition. The arguments were: (1) that the Arbitrators had actually entered upon the reference and done nothing further thereafter for a period of four months, and therefore the proceedings had come to an end; and (2) even if they had not entered upon the reference, they had become functus officio as notice had been issued to them on 15th October 1973 and 29th October 1973 by the petitioner and the counter petitioner, calling upon the Arbitrators to appoint an Umpire and more than four months had expired thereafter. The court below held both these points against the petitioner in this revision petition. It held that the* Arbitrators had not entered upon the reference. It held also that the Arbitrators had not become functus officio.

(3.) In support of the argument that the Arbitrators had actually entered upon the reference counsel for the revision petitioners relied on Ext. A-1 notice dated 23rd December 1974. That notice is issued by Mr. K. V. Joseph one of the arbitrators to the petitioner in the O. F. (respondent, herein). The notice is as follows: