SHIV LAL Vs. PT. ISHAR DAS

JUDGEMENT

(1.) THE facts giving rise to this appeal are these. On 15th March, 1953, Ishar Dass and his brother Shiv Lal entered into a partnership to do textile business under four different names - -(i) National Textile Manufacturers, Amritsar, (ii) Messrs Indian Traders, Amritsar; (iii) Messrs Ishar Dass Weavers, Amritsar; and (iv) Messrs Ishar Dass -Shiv Lal, Kanpur. The first three concerns had to be carried on by Ishar Dass at Amritsar and the fourth by Shiv Lal at Kanpur. On 29th June, 1954, in the original partnership agreement, one more term was added, according to which, no partner could carry on any other business, except the four mentioned above, single -handed. It appears that towards the close of 1958, disputes arose between the two brothers. On 9th March, 1959, an arbitration agreement was entered into between them, according to which two arbitrators were appointed. They had to go into the various disputes and also decide about the rendition of accounts. They entered on the reference, but, according to Shiv Lal, after sometime they started misconducting themselves, with the result that on 22nd August, 1959, he had to make an application under Section 11 of the Arbitration Act in the Court of the Senior Subordinate Judge Amritsar for their removal. They were actually removed by the Court on 26th February, 1960. In the meantime, however, on 5th October, 1959, Shiv Lal filed a suit against his brother for dissolution of partnership and rendition of accounts. His allegations were that the Defendant was not rendering the accounts of the Amritsar concerns.

(2.) SUMMONS in this suit was served on the Defendant, but on 24th May, 1960, the suit was dismissed in default under the provisions of Order 9, Rule 8, Code of Civil Procedure, on account of the absence of the Plaintiff. On 28th June, 1960 an application under Order 9, Rule 9, Code of Civil Procedure, was made by Shiv Lal for the restoration of the suit. While this application was pending, according to the Plaintiff, a compromise was effected between the two brothers on 16th February, 1961, according to which, both of them agreed to appoint two new arbitrators, who were to decide the entire dispute. According to Ishar Dass, however, no compromise was affected; but the fact remains that a new arbitration agreement was entered into, on the basis of which the two arbitrators entered on the reference. On 16th February, 1961, Shiv Lal's counsel made a statement in the proceedings which commenced on the application, which he had filed under Order 9, Rule 9, Code of Civil Procedure, saying that since a compromise had been effected between him and his brother Ishar Dass, he would like to withdraw that application. The said application was, consequently, dismissed, because of the statement of his counsel.

(3.) ON 19th March, 1962, a fresh suit was brought by Shiv Lal, out of which the present appeal has arisen, against Ishar Dass for rendition of accounts and dissolution of partnership. According to him, the Defendant was not agreeable to render the accounts of the Amritsar business. He also stated that Ishar Dass had started another business under the name of Kwality Woollen Mills at Amritsar on his own account and that was against the terms of the partnership agreement, especially when the Defendant was not sharing the profits of that concern with him.