JAGJIVANDAS MULCHAND CHOKSHI Vs. SONI MANILAL MOHANLAL

JUDGEMENT

(1.) J.

(2.) THE plaintiff and the defendant had been carrying on business in partnership under the name and style of Bhagyoday Engineering Company at Palanpur. THE partnership firm business was commenced on 19th January 1960 THE partnership was dissolved by mutual consent on 9th September 1965 Though the partnership firm was dissolved by mutual consent the parties could not settle the accounts of partnership business. THE plaintiff therefore filed the present suit for accounts. THE defendant applied for time to file his Written Statement. Subsequently he filed the Written Statement and issues were raised. On 22nd January 1970 some evidence was recorded by the Trial Court. On 15th June 1970 the parties gave a joint purshis Ex. 60 in which they stated that the dispute should be referred to the arbitration of two persons named therein. THE Court made an order below Ex. 60 and referred the dispute to the arbitrators under sec. 22 of the Arbitration Act. On 1st August 1970 the arbitrators wrote to the Court that they were not in a position to proceed with the arbitration and to make the award. THE learned Trial Judge thereafter heard the parties. THE parties could not agree to a fresh appointment of arbitrators. On 6th October 1970 the Court made an order by which it superseded the arbitration and directed the suit to proceed further. That order was challenged by the defendant in appeal to the District Court. THE learned District Judge took a contrary view and held that the learned Trial Judge ought not to have superseded the arbitration but ought to have supplied the vacancies.

(3.) IT is not in dispute before me that the present case is governed by the provisions in Chapter IV of the Arbitration Act 1940 The order of reference which the Trial Court made was under sub-sec. (1) of sec. 23. Sec. 21 provides that the parties may at any time before the judgment Is pronounced apply in writing to the Court for an order of reference if they have agreed that any matter in difference between them in the suit shall be referred to arbitration. The joint application Ex. 60 was given by the parties to the Court under sec. 21. Sec. 22 provides that the arbitrator shall be appointed in such manner as may be agreed upon between the parties. Then follows sub-sec. (1) of sec. 23 to which I have made reference. Sub-sec. (2) of sec. 23 provides that where a matter is referred to arbitration. the Court shall not save in the manner and to the extent provided in the Act deal with such matter in the suit. IT is sub-sec. (2) of sec. 23 which brings into play the other provisions of the Act 4.0 which I am now referring. Sec. 25 provides as follows :- The provisions of the other Chapters shall so far as they can be made applicable apply to arbitrations under this Chapter:-