MORESHWAR DAMODAR URHEKAR Vs. MAHADEO RAGHUNATH TIKEKAR

JUDGEMENT

(1.) ON November 25, 1947, the plaintiff -applicant and the defendant -opponent entered into an agreement of partnership of which the eleventh clause provided for reference to arbitration in the event of a dispute arising under the deed. The eleventh clause Was in the following terms: ...[VERNACULAR TEXT OMITTED]... A dispute did arise between the parties when a suit for dissolution of partnership and accounts was filed by the plaintiff on January 7, 1958, in the Court of the Civil Judge, Senior Division, Amravati. The defendant inter alia met the suit by taking recourse to the provisions of Clause 11. According to the defendant, the clause precluded the further trial of the suit which ought to be stayed pending reference to arbitration under the provisions of Section 34 of the Arbitration Act. This objection was raised by the defendant by his application dated January 29, 1958.

(2.) It remains to be stated that of the three arbitrators mentioned in Clause 11, Shri D. L. Limaye, Advocate, passed away in 1952. Thereafter, the defendant gave a notice to the plaintiff on November 28, 1956, to appoint his successor but the plaintiff declined to nominate any successor. In answer to the defendant's application under Section 34, it was the contention of the plaintiff that the parties had appointed the three arbitrators by name and having regard to their special qualifications and the special confidence which they commanded, and that, therefore, upon the death of any one of them, there could be no substitution and the arbitration clause would, therefore, fail. This contention was upheld by the learned trial Judge who held that in the instant case the deceased arbitrator was chosen by the parties because of qualifications peculiar to himself and, therefore, the Court could not appoint a substitute because of his death. The trial Judge further went on to state that Shri D. L. Limaye was an eminent lawyer and was known for his high integrity and character; and if his choice was made because of these qualifications, it was indeed difficult to say whether the parties could be called upon against the wishes of one of them to name another arbitrator or whether in the event of their not agreeing, the Court could appoint one to fill the vacancy.

(3.) BEFORE the learned trial Judge another objection was also put forward. It was that the second arbitrator named in Clause 11, Gopalrao Mahadeorao Dorle, was a man who was very aged (it was alleged that he was 90 years of age) and his eye -sight and powers of hearing had been failing due to age, and that, therefore, he was incapable of acting. The learned trial Judge negatived this objection. But unfortunately since his decision the other arbitrator, Mr. Dorle has also passed away on October 3, 1958. It was urged and it seems to me that in revision I must take account of this subsequent event which further affects the issue between the parties.