UPENDRANATH BORAL Vs. DULALCHAND SEN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of Sinha, J. , dated January 4, 1963, dismissing the appellant's application for setting aside a consent decree dated August 2, 1963, passed in Suit No. 3626 of 1952. The appellant carried on business as manufacturer of condiments in co-partnership with one Sambhunath Sen, since deceased, under the name and style of Boral and Sen, each of the partners having a half share in the business. Sambhunath died on June 6, 1939, leaving him surviving his two sons, the respondents herein, each of whom became entitled to a half share in the business, which was continued after the death of Sambhunath. A suit was filed in this Court in 1952 by the respondents being Suit No. 3262 of 1952 (Dulalchand Sen and Ors. v. Upendranath Boral) for dissolution of partnership and other reliefs. A decree was passed in this suit by consent of parties on April 1, 1953, by which it was declared that the respondents were each entitled to one fourth share, and the appellant was entitled to a half share, in the assets of the partnership, which was declared to have been dissolved from the date of the consent decree. There was a reference to the arbitration of Mr. A. K. Bhattacharjee, Barrister-at-Law, the subject-matter of the reference being all outstanding matters in dispute between the parties. Under the terms of the consent decree the business of Boral and Sen with its goodwill and assets and stock-in-trade was purchased by the appellant for Rs. 80,000/- As the appellant did not pay the full consideration, the balance due from him was secured by a charge on certain properties belonging to the appellant. The arbitrator made his award on May 19, 1956, and filed the same. This award was set aside by consent of parties, and a fresh reference was made of the outstanding disputes to the arbitration of Mr. G. K. Dutt, Barrister-at-Law. On April 15, 1960, the arbitrator made and published his award by which he awarded that a sum of Rs. 88,270-15-0 was to be paid by the appellant to the respondents in equal shares. This liability of the appellant to the respondents under the award was in addition to his liability on account of price of the business and its goodwill. One June 21, 1960, the appellant made an application for setting aside the award of Mr. G. K. Dutt. This application was heard by G. K. Mitter, J. , on June 2, 1960. Mr. D. K. De and Mr. B. N. Banerjee appeared for the appellant and the respondents were represented by Mr. B. N. Sen.

(2.) THE application was disposed of by G. K. Mitter, J. , by an order made by consent of parties whereby the amount due by the appellant to the respondents was reduced from Rs. 88,270-15-0 to Rs. 74,301/ -. The judgment upon the award matter, which was not on the list, was by consent of parties treated as on the day's list and a decree was passed against the appellant for Rs. 74,301/- with interest on judgment at six percent. per annum. Each party was to pay its own costs of the application, and the cost of the reference before the arbitrator, was to come out of the assets of the partnership. On August 24, 1960, the solicitors for the parties put in certain agreed minutes, setting out certain terms therein relating to the decree passed on August 2 1960. These minutes provided that the decree dated August 2, 1960, was to be drawn up according to the agreed minutes filed on August 24, 1960. According to the appellant he did not give his consent either to the order and decree passed on August 2, 1960, or to the agreed minutes which were put in on August 24, 1960. The appellant obtained an order for change of solicitor from Mr. Surendranath Sen, his previous solicitor, and on September 16, 1960, he took out a notice of motion for setting aside the consent decree. This application was heard by Sinha, J. , on evidence, and an order was made dismissing the application. This appeal is against this order made by Sinha, J. dismissing the application. The appellant's case is that he was present in Court on August 2, 1960, when the matter was disposed of by G. K. Mitter, J. , but he did not realise that the matter was being settled without his consent. After the matter was disposed of he made enquiries of his solicitor and was told that a decree had been passed against him. The appellant went to his solicitor on the next day, when he was told that a decree had been passed against him for Rs. 74,301. The appellant contends that he was not consulted in the matter of settlement though he was present in Court, and his definite instructions to his lawyers, were not to settle the application in any event. According to the appellant, the settlement of the application had been brought about as a result of misapprehension on the part of his counsel, who consented to the decree against the appellant without any authority or instruction. He has alleged in the petition that his counsel had no actual authority to settle the application or to consent to the decree. He was never consulted either by his solicitor or his counsel regarding the terms of settlement and never gave his consent to the same.

(3.) THE respondents contend that the authority of Mr. D. K. De, counsel for the appellant, to settle the matter was never withdrawn or restricted and that instructions were given to him to settle the matter. The appellant was present in Court on August 2, 1960, when the matter was heard and disposed of by G. K. Mitter, J. , and he had expressly authorised his counsel Mr. De, through his solicitor Mr. Sen, to compromise the matter. The appellant expressly agreed to a decree being passed against him upon some reduction of the amount awarded against him. But the amount of reduction to be allowed, was left entirely to the learned Judge. The respondents further contend that the mere fact that the exact figure was not agreed upon or that the appellant did not give his consent to a particular figure, is of no consequence, because he agreed to a decree being passed, upon such reduction, (besides the correction of an arithmetical error by Rs. 9,000/-) as the learned Judge thought fit to allow. The Appellant's counsel had pointed out an arithmetical error and G. K. Mitter, J. , expressed the opinion that if there was an apparent mistake in calculation, it could be then and there corrected by the Court without setting aside the award. Mr. B. N. Sen, learned counsel for the respondents, agreed to the correction being made. The order was about to be made when Mr. De turned to his solicitor Mr. Sen, and told him that the application was liable to be dismissed even if the correction was made, but if the appellant agreed to a decree being passed, and the award upheld, subject to the correction, mr. De would try to have the amount of the decree reduced still further. Thereafter the solicitor Mr. Sen took instructions from the appellant, who instructed the solicitor to settle the matter, if a further reduction was allowed in the amount of the award. After some further discussion the award was reduced by Rs. 13,969/ -. The order was thereupon made by consent. The judgment upon award matter, which was not in the list, was by consent of parties, treated as on the day's list, and a decree was passed on the award. The consent order was thereafter made and a judgment was passed on the award as modified by reducing the claim by RS. 13,969/ -. This was followed by certain agreed minutes which were put in on August 24, 1960, relating to the decree passed. These minutes, it is claimed by the respondents, were put in for the purpose of facilitating the drawing up of the decree on the judgment upon award! which was passed on August 2, 1960.