HANSRAJ VELJEE Vs. MAGANLAL VELJEE

JUDGEMENT

(1.) THIS revision application has been filed against the findings which have been recorded by the learned Civil Judge, Senior Division, Amravati in Special Civil Suit No. 20 of 1971 on certain issues which were treated as preliminary issues. In order to appreciate the rival contentions which have been advanced before me in this revision application, a few facts may be noted.

(2.) APPLICANT No. 1 and non-applicant No. 1 are brothers and applicant No. 2 is their mother, while non-applicant Nos. 2 and 3 are the sons of non-applicant No. 1. It appears that they were members of joint Hindu family which was carrying on business at Amrapti in three names, namely, Shah Velji Narsi Company, M/s. V. H. Pen Industries and Firm Shah Veljee Narsee. In 1969 some disputes arose between the applicants and the non-applicants with regard to the business they were carrying on and the properties owned by them and in order to resolve these disputes, they appointed Shall Morarjibhai Raisey and Shah Jethabai Gosar as arbitrators under an agreement dated 12th Dec. 1969. These two arbitrators entered upon arbitration and made their award on 14th Dec. 1969 This award related to the business which the firm was carrying on under the above-said three trade names and also to the immoveable property owned by the family. The arbitrators proposed arrangements between the applicants on one hand and the non-applicants on the other hand. The applicants were treated as continuing party, and the non-applicants were treated as the retiring party. What purports to have been meant by these two terms was that the retiring party would cease to have any concern with the business of the family on certain terms and conditions and the business would be continued by the continuing party. The parties to the award, namely, the applicants and the non-applicants subscribed their signatures to it on the day it was made, i.e. on 14th Dec. 1969. Thereafter on 26th Feb. 1971, one of the two arbitrators, namely, Morarjibhai Raisey issued an authority in writing in favour of applicant No. 1 and non-applicant No. 1 jointly or severally to file the said award in the Court having jurisdiction in the matter. It appears that the original award was handed over to non-applicant No. 1. On 29th June 1971 the non-applicants filed an application in the Court of the Civil Judge, Senior Division at Amraoti purporting to have been made under Section 17 read with Section 14 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act'). By this application the non-applicants prayed for a decree in terms of the award. In this application they averred that the parties had accepted the award and in compliance with the terms of the award, they, i. e. the non-applicants, had retired from the business which was now entirely under the control and management of the present applicants and that the applicants had also made certain payments as contemplated by the award but they had failed to abide by the terms of the award fully. They alleged that in spite of a notice served by them on the applicants on 3rd Mar. 1971, the applicants had failed to pay the amounts under the award to them and had also failed to give effect to the other terms of the award. The non-applicants contended that the applicants were evading their liability under the award and it had, therefore, become necessary to make the award a rule of the Court by passing decree in terms of the award, so that they would be in a position to obtain relief by executing it. The non- applicants further stated in the application that one of the arbitrators, namely, Morarjibhai Raisey had authorised them to file the award in Court. They also contended that no period of limitation was provided for the arbitrators to file the award in Court and since the award was being filed under the authority of the arbitrators, the question of limitation did not arise. Lastly they submitted that the present applicants were precluded from raising any objection to the award as the period of limitation prescribed for this had expired and there was no legal impediment in passing the decree in terms of the award.

(3.) ON the preliminary objections which had been taken by the applicants; four issues were framed and they were ordered to be treated as preliminary issues. They are as follows :