A SWAMY Vs. A ESHWARIAH

JUDGEMENT

(1.) This revision petition is directed against an order dismissing an application to examine four arbitrators who passed an award, as witnesses in a suit to enforce the award.

(2.) The respondent herein filed a suit, O.S. 162/74, under Sec. 20 of the ARBITRATION ACT, 1940 on the file of the Third Additional Judge, City Civil Court, Secunderabad, against the petitioners herein requesting the court to refer the subject-matter of the suit to arbitration and to direct the arbitrators to make their award. The case of the plaintiff was that the first defendant was the father of the plaintiff and defendants 2 and 3 are the brothers of the plaintiff. The plaintiff after referring to some marked partnerships, ultimately stated that a deed of partnership was executed on 16-3-1970 be ween the plaintiff and defendants 1 to 3. Under the said deed of partnership which related to the business of running of a picture house called, Ajanta Talkies in Secunderabad, the plaintiff was to be in-charge of maintenance of accounts. The second defendant was to be in-charge of incomings and out goings of the firm and he should have the custody of the collections and receipts of the firm. The Second defendant was not furnishing the details of the incomings and out-goings and was retaining the entire income from the theatre for himself- According to the plaintiff he was to get a sum of over Rs. 1, 20,000/- towards his share of profits. The defendants were colluding to deprive him of the income of the firm and rendering it impossible to run the partnership. Hence it was not reasonably practicable for the plaintiff to carry on the business in partnership with the defendants. Under clause 13 of the deed of partnership if any dispute arises out of the partners relating to the partnership business the same should be referred to the arbitration of four arbitrators named therein. The plaintiff therefore prayed that the partnership agreement which contained an arbitration clause should be filed and order of reference to the arbitrators should be made and the arbitrators should be directed to make their award. By an order d/12-8-1975 the Court appointed M/s. M. Rammohan Rao, Advocate, V.V L. Narasimha Rao, Advocate and Sri Gowni Ramakrisbtaiah and Sri D P. Sany alas arbitrators to decide the dispute between the plaintiff and the defendants. During the course of the arbitration proceedings Sri Ramakishtaiah died and thereafter Sri L. Lingisetty was appointed in his place. The arbitrators passed an award on 8-9-1978 which was duly engrossed on stamp papers. The arbitraiors issued a notice of making and signing the award to the parties. The respondent herein thereupon filed a suit O.S. 137/78 on the file of the Addl. Chief Judge, City Civil Court, Secunderabad directing the arbitrators to file the award into court and make the award a rule of the court and pass a decree in terms of the award.

(3.) In the above suit, the defendants filed I.A.No. 154/79 requesting that the arbitrators should be. summoned as witnesses for the purpose of cross-examination by the defendants. In the affidavit in support of the petition it was stated that the arbitrators are necessary witnesses in the suit and the defendants should have an opportunity to cross-examine them. No reasons were given as to why the arbitrators should be produced for cross-examination. During the arguments however the defendants seem to have contended that the cross-examination of the arbitrators was necessary to substantiate the two objections raised by the defendants in the suit, namely, that in the award, the arbitrators had granted amounts barred by limitation, and made the defendants liable for profits in respect of the period anterior to the date of deed of partnership. The Court below dismissed the application holding that the period for which the profits were awarded and the question whether any profit so awarded was barred by limitation are matters which can be ascertained with reference to the available record and it is wholly unnecessary to call the arbitrators as witnesses and submit them to cross-examination by the defendants. In the result it dismissed the application as misconceived and devoid of merits The revision petition is preferred as against the said order.