SESBADRI NARASIMBA DAS Vs. GOVT

JUDGEMENT

(1.) THE substantial question of law that arises in this Second Appeal is wheather the time taken in arbitration proceedings and the appeal and the revision therefrom, can excluded while computing the period of limitation for a suit filed by one partner against another for rendition of accounts. THE plaintiff is a resident of Anantapur and the defendant is a resident of Mysore, THEy entered into a partnership in December, 1948 under the name and style of 'Timber Trading Company; Anantapur' for carrying on business in the purchase and sale of timber. Disputes arose between them. On 28th November, 1954, the plaintiff and the defendant referred the dispute for decision by four named arbitrators and executed an arbitration agreement in their favour. THE arbitrators passed an award on 13th December, 1954, whereby the plaintiff was directed to pay a sum of Rs. 2800/- to the defendant within three months from that date, THE defendant filed O. S. No. 9/1955 in the SubCourt, Anantapur on 23rd February L955 for passing a decree in terms of the Award. THE plaintiff filed 0. P.. No. 27/1955 in the Sub-Court, Anantapur under Section 30 of the Arbitrrtton Act to set aside the Award. Both the suit and O. P. were tried together by the Sub-Court, Anaatapur, and on 25th February 1957, O. P. No. 27/1955 was dismissed and the suit was decreed. THEreupon, the plaintiff filed in the District Court, Anantapur, A. S. No. 91/1957 against ths decree in O. S. No.9/1955, and C. M. A. No. 19/1957 against the order in O. P. No. 27/1955, Both the appeals were heard together by the Additional District Judge, Anantapur. He delivered a common judgement on 14th November, 1958 allowing both the appeals by dismissing O. S. No.9/1955 and setting aside the Award made by arbitrators. THE defendent then preferred C. R. P. Nos. 7811/1959 and 1681/1960 in the High Court of Andhra Pradesh against the judgement and decree of the Additional Distnet Judge, Ananathapur. Both the Civil Revision Petitioners were dismissed by the High Court by a common order dated 26th October, 1962. THE plaintiff instituted the present suit, O. S. No. 81/1965 on 23rd August, 1965 for dissolution of partnership and for taking accounts thereof in the Court of the Subordinate Judge, Ananthapur. He alleged that the partnership firm was not dissolved and the accounts were not finalised, and that the defendant who was incharge of the accounts had not accounted to him. He claimed to exclude for the purpose of limitation the period from 28th November, 1954, the date of the reference to the arbitration till 26th October, 1962, when the High Court passed orders in C. R. Ps. confirming the judgement of the Additional District Judge, Ananthapur setting aside the award. THE defendant contended that the partnership stood dissolved in 1954, and the prior arbitration proceedings and the consequential legal proceedings did not give the plaintiff any extended period of limitation and the suit was barred by limitation. He submitted that the plaintiff was the managing partner of Firm and he had to account.

(2.) ON a consideration of the evidence on record, the learned Subordinate Judge held that the firm was dissolved in 1954. He also held that the suit was not barred by limitation, for until the matter was finally decided by the High Court the plaintiff did not acquire a right to take appropriate legal proceeding for settlement of accounts produced by the plaintiff, Exs. A-12 to A-17 were true and correct and the period for which accounts had to be taken was from 1st August, 1952 to 30th September, 1954. He held that the defendant was the accounting party in resp ct of purchase of timber made by him in Mysore State with the partnership funds or on behalf of the partnership, and the plaintiff was the accounting party in respect of sales of timber and other stock-in trade of the partnership at Ananthapur. He observed that the defendant was at liberty to produce accounts and satisfy the Commissioner and the Court at the time of taking accounts that they were genuine, and the patti, Ex. B. 5 given by the plaintiff to the defendant in September, 1954 should also be considered along with the accounts and that neither the plaintiff nor the defendant could be said to be in exclusive possession of all the partnership accounts, nor could be deemed to be the manager of the partnership. Therefore, he passed a preliminary decree for taking account of the dissolved partnership in terms of his findings.

(3.) AGGRIEVED by that judgement, the plaintiff has filed this second appeal. The learned counsel for the appellant has submitted that it is Sec. 37(5) of the ARBITRATION ACT, 1940 that.applies, but not Section 14 of the Limitation Act, and the suit is in time. On. the other hand, the learned counsel for the respondent has submitted that the defendant bad no stay in the Civil Revision Petitions, and there was no legal impediment for the plaintiff to file a suit after 14th November, 1958, and therefore, the suit, was barred by limitation.