V GURUMURTY RAJU Vs. V NARASIMHA RAJU

JUDGEMENT

(1.) THESE two are analogous appeals from the order of the Subordinate Judge of Berhampur in M. J. C. Nos. 109 of 1946 and 8 of 1947 setting aside an award made by an arbitrator named Sri T.N. Murthy on 15-9-1946.

(2.) FROM 1941 to 1944 one Narasimha Raju took lease of a rice mill belonging to the Maharaja of Parlakimedi by a registered lease deed dated 9-12-1940 (ext. 2) and subsequently admitted several other persons as partners for the management of the mill. The shares of the partners were fixed as follows: The business of the partners consisted of milling rice and extracting oil from ground-nut. Some of the partners carried on another independent business in which their interests were as follows: Y. Krishna Murty and U. Samba Murty retired from the partnership business and the other partners continued the same for some time. Thereafter, at the request of Gurumurty Raju the partnership business was closed and the profits were divided. Gurumurty Raju claimed his two annas share of the profits. But one Srirama Murty contested the claim of Gurumurty Raju saying that he was entitled to one anna out of the two annas share of Gurumurty. While the dispute between the two was thus going on, Gurumurty Raju brought a criminal case (C. C. No. 139 of 1943) (ext. 3) in the Court of the Joint Magistrate, Berhampur, on 5-10-1942 against some of the partners including Narasimha Raju and Srirama Murty charging them with offences under Sections 420, 465, 468, 477 read with Sections 120 and 120B, Penal Code. Processes were in due course issued in that case and the case was fixed for hearing on 30-12-1943. On that date, however, Gurumurty appeared before the trying Magistrate and stated on oath that as his witnesses had turned hostile he would not be able to prove his case (ext. 12). Thereupon, the learned Magistrate discharged all the accused persons under Section 253 (1), Criminal P. C. On the very same date Gurumurty and all the accused persons of that case jointly executed an agreement (ext. 1) for the determination of all their disputes by an arbitrator named Tangadu Narasimha Murty (Sri T. N. Murty). The terms of reference as embodied in that agreement are as follows:

(3.) MR. D.V.N. Rao, however, invited my attention to Clause 5 of the arbitration agreement in which the arbitrator was requested to apportion the costs between the parties in C. C. No. 139/43 and urged that this clause when construed along with the other circumstances would lead to an inference that the withdrawal of the case was the consideration for the agreement. I am, however, unable to accept this argument. It may be that the parties wanted all their outstanding disputes to be settled by the arbitrator and on 30-12-43 the question of apportionment of costs in the criminal case was one of the questions to be decided. I would, therefore, uphold the finding of the lower Court on this ground.