ARJUNA PADHANA Vs. NAKULA CHOUDHURY

JUDGEMENT

(1.) THIS revision is directed against an order of the District Judge, Ganjam -Nayagarh, affirming an order of the Additional Subordinate Judge, Berhampur, in Misc. Case 1 of 1949, arising out of Money Suit No. 1 of 1948 on his file. Nakula Choudhury, the opposite party herein, filed a suit for the recovery of some money from the petitioner (defendant) after dissolution of the partnership that had been entered into between him and the defendant. When the trial of the suit was going on the parties referred their disputes to arbitration by five gentlemen, by an agreement dated 30 -8 -1948. The Court referred the matter to the arbitrators nominated by the parties. The reference was in these terms: 'We appoint the following five respectable men as 'punchayetdars', and the means of the gentlemen are given below. The second paragraph of the agreement says that

(2.) IN pursuance of this agreement the arbitrators look evidence and passed an award (Ex.6) on 26 -11 -1948. The award says that the arbitrators fixed the liability of the defendant at Rs. 3100 and that the defendant produced gold worth Rs. 3100 and challenged the plaintiff to take the special oath. At that stage the plaintiff and his father went out with Padmalochan Padhy, one of the arbitrators for consultation amongst themselves immediately thereafter Padmalochan returned and said that He would not agree to the award and subsequently resigned from the arbitration. The result therefore is that the award is signed by the rest of the arbitrators and purports to be a decision of tour of the rive originally appointed by the parties,

(3.) THE first point that has been urged, onbehalf of the petitioner, is that the award itself is invalid as only four out of the fivegentlemen have acted which they were not competent to do. The reference does not authoriseeither a majority award, nor does it contemplate any member resigning; indeed it does notmake any provision for any such contingency.Section 8(1)(b), Arbitration Act, says that