SHERBANUBAI JAFFERBHOY Vs. HOOSEINBHOY ABDOOLABHOY

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr, Justice Tendolkar by which the learned Judge refused to accede to the appellant's petition to set aside an award made by Sir Sajba Rangnekar on August 9, 1946.

(2.) THE facts leading up to this appeal are briefly these. Jafferbhoy, the brother of respondent No.1, died on May 14, 1936, leaving a will dated June 13, 1933, under which he appointed his wife, the petitioner, his brother, respondent No.1, and his brother's son, respondent No.2, executrix and executors. Before the death of Jafferbhoy he and Hooseinbhoy, respondent No.1, were doing business in the name of Abdullabhoy Lalji and Co. and this firm also did business in other names. By Clause 12 of his will Jafferbhoy authorised his executors to carry on the business on behalf of the estate, and pursuant to the directions contained in this clause Hooseinbhoy and the executors of Jafferbhoy agreed to carry on the business. THE petitioner then filed a suit for dissolution of this partnership and for accounts. On March 27, 1941, the petitioner took out a notice of motion for the appointment of a receiver. On April 5, 1941, respondents Nos. 1 and 2, who were defendants in that suit, took out a notice of motion for stay of proceedings on the ground that in the partnership agreement there was a submission clause. Both the notices of motion came on for hearing on April 17, 1941. THE Court appointed the Court Receiver as the Receiver of the books of account of the partnership and also made an order referring all matters in dispute between the parties to the sole arbitration of Sir Sajba Rangnekar. THE arbitrator was directed to make his award within eight months after entering on the reference and he was given the liberty to take only such evidence as he in his absolute discretion thought fit to call for or allow. THE learned arbitrator made his award on August 9, 1946, and this petition was filed on October 21, 1946, to set aside the award. THE learned Judge, as I have said, dismissed the petition and upheld the award.

(3.) NOW, in this case after the hearing before the arbitrator had proceeded for a considerable time, in March 1946, the parties signed an agreement conferring certain powers upon the arbitrator. These powers were that the parties were to leave it to the arbitrator to make an award summarily after hearing arguments on such points as he may require and such award was to be deemed a consent award in the sense that whatever he decided was to be treated as having been agreed to and accepted by the parties. Whereas in the original order of reference, as I have pointed out, the arbitrator was given the power to take only such evidence as he in his absolute discretion thought fit to call for or allow, by this agreement the parties conferred upon the arbitrator the wider power of hearing arguments only on such points as he might require. It is true that certain summary powers were given to the learned arbitrator by the order of reference, but there can be no doubt that these powers were considerably increased by agreement between the parties.