GIRDHARI LAL Vs. KAMLESHWAR PRASAD

JUDGEMENT

(1.) THESE first appeals from orders arise under Section 39 of Arbitration Act, 1940 (for short the Act) directed against the order dated 31-8-82 passed by Civil Judge. Allahabad in Suit No. 102 of 1981 dismissing the objections of the defendant-appellant for setting aside the award dated 26-5-1981 (paper No. 14A) (paper book No. 1 pages 30 to 39) and making the award rule of the Court and directing a decree to follow.

(2.) A portrayal of essential facts is this. There was a registered partnership firm working in the name and style of Firm Agarwal Construction Co.' and Girdhari Lal Agarwal, Kamleshwar Prasad Agarwal and Rajesh Kumar Agarwal were its partners. The firm undertook the work of construction of 50, quarters (11 type) from Indian Farmers Fertilizers Corporation, Phoolpur (for short IFFCO) in the year 1977. That work was in progress but in the meantime some disputes arose between Kamleshwar Prasad Agrawal and remaining partners in adjustment of accounts and share of the profits, and when they could not reconcile the same, as per Deed of Arbitration dt. 5-3-1980 signed by all the, partners, Sri Pradumn Narain Singh Jyotishacharya, the respondent No. 2 was appointed as the sole arbitrator. The arbitrator permitted the parties to lead evidence and looked into the accounts particularly the costing register in respect of schedule and non-schedule items indicating the expenses incurred in respect of each item. According to the costing placed by the plaintiff-respondent No.1, he claimed a sum of Rs.11,47,000/-. The arbitrator sent this costing register to the expert Sri Virendra Singh, the architect, who checked the costing register and gave his opinion vide his letter dated 18-8-80 (page of paper book No. 2). His opinion indicates that the letter dated 6-8-80 was sent to him by the Arbitrator seeking his opinion in respect of the actual amount mentioned in the costing register. He made some modifications in respect of the expenses incurred as shown in the costing register. Relying upon the same the award was given.

(3.) LEARNED counsel for the respondent No. 1 plaintiff, on the other hand urged that sufficient opportunity was given to the appellant about the costing register and furnishing the report of Sri Virendra Singh the architect expert. The costing register contained correct expenses in respect of each item. The margin of profit was correctly shown. There was only one expert namely Sri Virendra Singh. There was no denial of opportunity to the appellant as from the judgment of the civil Judge it was obvious that opportunity was given and there was no violation of principles of natural justice. It was in any way not a misconduct contemplated by Section 30(a) of the Act. It was next urged that the arbitration agreement was not genuine within the meaning of Section 2(a) of the Act nor its reference can be said to be a reference as contemplated by Section 2(e) of the Act. Having heard learned counsel for the parties, the points for our determination are as to whether the arbitrator has misconducted the proceedings in not granting reasonable. opportunity to the appellant to rebut the evidence of costing register including the opinion of the expert and thereby principles of natural justice have been violated; whether the arbitration agreement and reference were genuine and correct within the meaning of Sections 2(a) and 2(e) of the Act.