M I SHAHDAD Vs. MOHD ABDULLAH MIR

JUDGEMENT

(1.) A partnership was entered into between Wazir Chand s/o Lalchand and Harish Chancier s/o Wazir Chand residents of New Delhi, who were collectively described in the partnership deed as party No. 1, and Mohd. Abdullah Mir s/o Abdul Razak, Ghulam Mohd and Ghulam Rasul sons of Mohd Abdullah Mir respondents 1, 2 and 3 who were collectively described as party No. 2j on 4th Feb. 62. The partnership was registered on 10 -2 -62 before the Sub -Registrar Srjnagar. This partnership had to be carried on under the firm name Wazir Chand Harish Chander. These two parties were to invest money in a certain proportion for carrying on the business of the newly constituted firm. The partnership was for a period of five years from 1 -4 62. Cl. 11 of the partnership deed proved that if there was any dispute about the running of the business between the parties, the same would be got decided by means of arbitration. The first party had to appoint an arbitrator. Similarly the second party had to op -point its own arbitrator. The arbitrators between themselves had the power to appoint a Sarpanch or an umpire and the decision of the arbitrators so appointed would be binding on the parties. According to party No. 2 who are respondents 1 to 3 before me -the other party to the contract namely Wazir Chand and Harish Chander did not perform the obligations that devolved on them by means of this partnership deed. Therefore they took recourse to cl. No. 11of the partnership deed. On 28 -3 -64 Mr. T. Hussain Advocate on behalf of Mr. Mohd. Abdullah, Ghulam Mohd. and Ghulam Rasul the first three respondents sent a number of notices to Harish Chander, respondent 7 in these proceedings, for settlement of accounts and fqr nominating an arbitrator under cl 11 of the partnership deed and informing him that his clients had chosen Mr. M. I. Shahdad pleader of the Saddar Court at Srinagar as their arbitrator. These notices were not served on Mr. Harish Chander. Then on 20th June another notice was sent to Wazir Chand Harish Chander by the same Advocate on behalf of the same clients wherein he stated that he had received no reply of the concurrence of the addressee to the appointment of M I Shahdad as arbitrator on behalf of Party No. 2 and they had nominated their arbitrator. It was further conveyed to Wazir Chand Harish Chander that M. I. Shahdad ipso facto became the sole arbitrator. It appears that Mohd. Abdullah Mir respondent 1 presented an application to Mr. Shahdad arbitrator to get notices served upon the non -applicants through court under S. 43 of the Arbitration Act fixing the valuation on the application for purposes of court fee and jurisdiction at Rs. 25. This application was presented before the First Addl. Munsiff Srinagar on 27 -6 -64 who registered it and issued notices to the non -apphcants mentioned in the application. The notices were not served upon them except one which was served upon Bomo Devi respondent 4 widow of Wazir Chand on 17 -9 -64. According to the report of the process server notice was shown to this lady who stated that Harish Chander had gone to Srinagar ; he was cognizant of these proceedings and would appear in the court. But nobody appeared on the date fixed, 1 -10 -64. The matter came up before the First Addl. Munsiff who on 20 -11 -64 ordered that respondents non -applicants in the notice had not appeared despite service ry registered AD. Exparte proceedings were taken against them. The arbitrator was directed to take action according to law under the provisions of the Arbitration Act. The arbitrator continued the proceedings exparte against respondents 4 to 7. He has, however, maintained no record of minutes of the proceedings taken by him.

(2.) IT is the case of the petitioner Mr. Shahdad the arbitrator as well as; respondents I to 3 that the arbitrator entered upon the reference, proceeded exparte against respondents 4 to 7 and ultimately gave his award on 31 -12 64. Subsequently he put in an application on 16 -3 -65 for making this award a rule of the Court. The award was filed in this court on 24 -3 -65 Notices were issued to the respondents. On 18 -6 -65, Mr. T. Hussain appeared for respondent 3 and Mr. Nanak Chand for respondent 7. The other respondents were not served Later on Miss Pumi respondent 5 was served through substituted service and Mr. Sunder Lal appeared for her on 29 -10 -65. The petitioner prays that a decree be passed in terms of the award. Respondents 1 to 3 also support that request of the petitioner. It is respondents 4 to 7 who oppose the entire arbitration proceedings and the decree sought to be passed.

(3.) THE arbitrator by means of his award has granted a decree for Rs. 35,000 in favour of the first party, i. e., respondents 1 to 3 against respondents 4 to 7. As regards interest the matter has been left to the court and no opinion has been expressed, as in the opinion of the arbitrator S. 29 of the Arbitration Act hereinafter to be referred to as the Act. was a bar to his making any order about interest.