V VEERABHADRALCH Vs. V SESHAMMA

JUDGEMENT

(1.) One Vurimi Veeraiah laid O.S.No. 70 of 1975 in the Court of the Subordinate Judge, Cuddapah against his two brothers (defendants 1 and 2) and his two sisters (defendants 3 and 4) for partition of plaint schedule properties and for rendition of accounts etc. Subsequently, the suit was transferred to Subordinate Judge's Court at Proddatur and was renumbered as O.S.No. 89 of 1978 and then again to Subordinate Judge's Court at Rajampet and was renumbered as O.S.No. 3 of 1984. The sisters i.e., defendants 3 and 4 remained ex parte. The brothers i.e., the plaintiff and defendants 1 and 2, filed a joint petition LA. No.720 of 1979 for reference of the matter to three named arbitrators and the same was allowed and the matter was referred to them. One of the named arbitrators i.e., V. Satyanarayana, filed a memo before the learned Subordinate Judge on 25-12-1980 to the effect that the defendants were not co-operating with the arbitrators and that therefore he may be discharged as arbitrator. Thereafter, the remaining two named arbitrators filed an award on 20-7-1981 before the learned Subordinate Judge. Defendants 1 and 2 questioned the validity of the said award on the ground that it was not rendered by all the three named arbitrators, but only by two of them, and also on the ground that the arbitrators misconducted themselves, and sought the setting aside of the award in O.P.Nb. 37 of 1981 on the file of the learned Subordinate Judge at Proddatur when the suit was pending in that Court. After the suit was transferred to the learned Subordinate Judge's Court at Rajampet, the said O.P. was also transferred to that Court and was re-numbered as O.P.No. 1 of 1984. The learned Subordinate Judge at Rajampet by his order dated 17-4-1986 rejected the objections raised by defendants 1 and 2 to the validity of the said award and partly allowed the O.P. modifying the award. Consequently, the learned Subordinate Judge by his judgment and decree dated 17-4-1986 decreed O.S.No. 3 of 1984 in terms of the award as modified.

(2.) C.M.A.NO. 636 of 1986 is preferred by defendants 1 and 2 against the order of the learned Subordinate Judge in O.P.No. 1 of 1984 and A.S.No. 2349 of 1987 is preferred by defendants 1 and 2 questioning the judgment and decree of the learned Subordinate Judge in O.S.No. 3 of 1984. As the two matters are connected, they are heard together and they are being disposed of by this common judgment.

(3.) These two matters turn on the question whether the award rendered by two of the named arbitrators after the third named arbitrator withdrew from arbitration, is valid and can be enforced on the facts and circumstances obtaining. The undisputed facts are: (i) that after the learned Subordinate Judge at Proddatur referred the matter to the three arbitrators and they entered upon the reference, V. Satyanarayana filed a memo into Court on 25-12-1980 declining to continue as arbitrator and requesting the Court to discharge him as arbitrator; (ii) that the learned Subordinate Judge did not make any order thereon even as regards the filling up of the vacancy; (iii) that none of the parties to the suit took any steps for filling up of that vacancy; and (iv) that the award that was filed into Court on 20-7-1981 was signed only by the two remaining arbitrators. Defendants 1 and 2 contend that they had no notice of the said memo filed by V.Satyanarayana withdrawing from the arbitration and that they did not participate in the award proceedings as the plaintiff absented himself on various grounds after the matter was referred to the three named arbitrators. Though the learned Subordinate Judge, Rajampet observed in his order in the O.P. dated 17-4-1986 that defendants 1 and 2 did not take any specific objection that the award was void as one of the named arbitrators did not participate, this observation is not borne out by the petition in the O.P. because in paragraph 6 they submit that the award by the two remaining arbitrators "is most unjustand unsustainable both in law and on the facts of the case". They also categorically state in paragraph 7 of the petition that they agreed for the reference to arbitration only because they expected that the arbitrator (who walked out of the arbitration) to be presentand play an eminent role in deciding the matter - they also state that he did not send any intimation or notice to them and he never gave any inkling that he would drop out. They ' also raise a specific objection to the award on the ground that the remaining two arbitrators in the event misconducted themselves in proceeding with the arbitration and that the award was liable to be set aside on that ground alone. They also contend that the remaining two arbitrators did not send any notice to them and did not make any enquiry at all.