BHOJRAJ Vs. NANAKRAM

JUDGEMENT

(1.) THIS is an appeal by the plaintiff under sec. 39 of the Arbitration Act against the order of the Senior Civil Judge, Udaipur, dated 2nd January, 1959, dismissing his application under sec. 14 of the Arbitration Act and setting aside the award of the arbitrators dated 15th November, 1956. 2. Before proceeding to determine the questions which have been raised by learned counsel for the appellant, it will be proper to set out a few facts which are no longer in dispute between the parties. The defendant Tehumal and his son Nanakram formed, a company known as "m/s. Nanakram Tehumal & Company and got it registered as a "a" class contractor with the Public Works Department, Udaipur. THIS Company had obtained a contract for the construction of Lodisar Tank in Sagwara Tehsil, District Dungarpur. The said contract was for an amount of Rs. 4,63,500/ -. Later on, Tehumal entered into a contract with plaintiff Bhojraj on 1. 11. 1954 in order to carry out the project relating to Lodisar tank. Both of them executed and signed the terms of the contract which were embodied in Ex. 1 It was stipulated between the parties that both Tehumal and Bhojraj would deposit Rs. 5,000/- each, that is a total sum of Rs. 10,000/- with the Bank of Rajasthan that Bhojraj plaintiff would advance a loan of Rs. 25,000/- to this new partnership on interest at the rate of 9% per annum and that in case more money was needed, Tehumal would also advance a loan on interest at the same rate. Both the partners undertook to conduct the work in their personal supervision and it was also agreed that if for any reasons they would not be present at the works, Nanakram will function in place of Tehumal and Thakurdas will work in place of Bhojraj. It was also agreed that Nanakram the other partner of M/s. Nanakram Tehumal and Company in whose name the contract was obtained from the Irrigation Department, would execute a power of attorney in the name of Tehumal and Bhojraj, authorising them to receive all cheques issued by the Irrigation Department against the bills which might be prepared in connection with the said project. In paragraph 8 of the said agreement Tehumal's and Bhojral's shares were shown as 0/8/0 annas each while 0/0/3 pies were shown for "dharmada". In pursuance of the said agreement, Nanakram and Tehumal as partners of M/s. Nanakram Tehumal & Company, Udaipur, issued a letter of authority Ex. A-16 and addressed it to the Irrigation Executive Engineer, Udaipur. In that document it was stated that, the partners of the said Company authorise Tehumal and Bhojraj partners of M/s. Tehumal Bhojraj of Udaipur to receive all cheques made by the Irrigation Department, Udaipur, against the bills (payments) with regard to the contract work of Lodisar Project standing in the name of Nanakram Tehumal & Co. It was requested that all the cheques may be delivered to any partner of M/s. Tehu Mal Bhojraj. 3. It is common ground between the parties that after the execution of the said documents the work relating to Lodisar Project was carried on for some time by Tehumal and Bhojraj but later on a dispute arose between them and they could not proceed with the work in partnership. In order to resolve their dispute, they appointed two arbitrators, namely, Mohandas s/o Rochaldas and Faganmal s/o Motumal, residents of Partapnagar (Udaipur ). They first executed an agreement for arbitration on an unstamped paper on 25. 7. 56 Ex. A-17 and later executed another document Ex. A-21 on 30. 7. 1956 on a stamp paper. Both the arbitrators gave an award on 15. 11. 1956. On 20. 11. 1956 Bhojraj presented an application under sec. 14 of the Arbitration Act in the Court of Senior Civil Judge, Udaipur, requesting that he had received a notice of the award on 19. 11. 1956 from the arbitrators and that the arbitrators should be directed to cause the award to be filed in the Court and that he was ready and willing to pay the arbitrators their just dues relating to the award. Mohandas arbitrator filed the award in the court on 15. 12. 1956. On a notice being given to the defendants Tehumal and Nanak Ram, they filed separate objections to the award on 5. 2. 1957 and 27. 2. 1957 respectively. Both of them raised several grounds challenging the validity of the award. Nanakram's main objection was that he was not a partner of the partnership which was formed by his father Tehumal and the plaintiff Bhojraj and that he was also not a party to the reference which was made by Tehumal and Bhojraj to the arbitrators and under the circumstances the arbitrators had no jurisdiction to give an award against him. He and Tehumal further challenged the award on the ground that the arbitrators had misconducted themselves and the proceedings and that the award was otherwise invalid on account of several reasons. 4. On these pleadings, the trial court framed the following 20 issues : (1) Has the award been given by Mohandas alone in collusion with the plaintiff ? d (2) Was no notice given to the defendants u/s 14 of the Arbitration Act ? d (3) Whether the award could be given against Nanakram inspite of the fact that he was not a party to the agreement to refer to arbitration ? p (4) Whether the defendants were oblivious of the relationship of the arbitrators with the plaintiff. If so, what, would be its effect on the suit? d (5) Was the award not based on evidence and was it beyond the scope of reference ? d (6) Was the award improperly procured and have the arbitrators misconducted themselves in the proceedings ? d (7) Were most of the proceedings taken by Mohandas alone ? If so, what would be its effect ? d (8) Whether the arbitrators were partial to the plaintiff for reasons mentioned in para 11 of the objections filed by Tehumal ? d (9) Was Bhagwandas, a witness of the defendants terrorised by arbitrators at the time of his giving the deposition and was his deposition torn by Mohan Das ? (10) Were) the defendants precluded from producing the evidence for reasons mentioned in para 13 of the objections ? d (11) Did the arbitrators, on 18. 10. 56 decline to give their award and did they promise to return the papers to the defendants ? If so, what would be its effect on the suit ? d (12) Were the proceedings forged for reasons mentioned in para 16 of the objection ? d (13) Is the award not final and certain ? d (14) Did the defendants apply for copies of the statements etc. and were refused those copies by the arbitrators. If so, what would be its effect on the suit ? | (15) Were the facts as stated in para 22 of the objection true ? If so what would be its effect ? d (16) Were the facts mentioned in paras 23 and 24 of the objections true ? If so, what would be its effect ? d (17) Was a sum of Rs. 9,528/-forfeited by the Government? If so, what would be its effect on the suit ? (18) Have the arbitrators acted in a partial manner for reasons mentioned in para 32 of the objections ? (19) Did the arbitrators act with partiality for reasons mentioned in para 33 of the objections ? (20) To what relief are the parties entitled to ? Out of them, issues Nos. 3, 5, 6, 7, 9 and 10 were decided by the court against the plaintiff and, therefore, the award was set aside. 5. Learned counsel for the appellant has strenuously urged that the trial court has committed an error in holding that Nanakram was not a party to the arbitration agreement and that the arbitrators had misconducted themselves and the proceedings. THIS first objection is covered by issue No. 3. As pointed out by the trial court, this is one of the very important issues and, therefore, it would be proper to deal with it first. 6. Learned counsel for the appellant has urged that whether Nanakram be considered as a member of the joint family of Tehumal and Nanakram or a partner of the company which went by the name Nanakram & Co. , the evidence on record shows that he had by his conduct ratified the agreement entered into by his father Tehumal and Bhojraj about the appointment of arbitrators and, therefore, he was as much bound by the award as his father. 7. Learned counsel for the respondents has urged, on the other hand, that there is no evidence on record to show if Tehumal and Nanakram were members of a joint Hindu family and even if they were members of a joint family one of them could not bind the other by entering into an agreement regarding arbitration. It is pointed out that the document Ex. A-16 leaves no room for any doubt that M/s Nanakram Tehumal & Co. Udaipur was a partnership concern consisting of Tehu Mal and Nanakram and it was not a joint family venture. It is further urged that one of the partners of the firm, namely, Tehumal could not enter into an arbitration agreement on behalf of the firm according to sec. 19 of the Indian Partnership Act. It is also argued that simply because Nanakram appeared before the arbitrators twice or thrice in order to present certain documents or to receive them back, it could not be presumed that he had submitted to the jurisdiction of the arbitrators and agreed to abide by the award which might be given by them. 8. We have given due consideration to the arguments raised by learned counsel and also carefully perused the judgment against which the present appeal is directed. It appears from the perusal of the judgment of the trial court that the plaintiff did not take a firm stand about the relationship of Tehumal and his son Nanakram with regard to the project regarding the Lodisar tank or the arbitration agreement. At one time, it was urged that Tehumal and Nanakram were members of a joint family and that the contract relating to the construction of Lodisar tank was taken by them from the Irrigation Department as a joint family concern. At another time, it was urged that they were partners in the business. Having gone through the record we find that in Ex. 1, which was executed by Tehumal and Bhojraj, it was very clearly stated that the contract from the Irrigation Department was taken by M/s Nanakram Tehumal & Co. Udaipur, that the said company consisted of two partners, namely, Tehumal and Nanakram. Again, in the document Ex-A. 16, which was executed by Nanakram on 16. 11. 1954, it was clearly mentioned by him that Tehumal and Nanakram were partners of the firm M/s Nanakram Tehu Mal & Go. Udaipur. In the face of these two documents, it was futile for the plaintiff to urge that Tehumal and Nanakram had obtained the contract from the Irrigation Department as members of the joint family. In our opinion, both these documents left no room for any doubt that both Tehumal and Nanakram had clearly indicated to the plaintiff that they were partners of M/s Nanakram Tehumal & Go. and that the contract was obtained from the Irrigation Department in the name of the said company. 9. It may be next pointed out that the perusal of Ex. 1 shows that only Tehu Mal and the plaintiff Bhojraj had entered into a new partnership having half and half shares. It is contended by learned counsel for the appellant that this contract was between the company consisting of Tehumal and Nanakram on the one side and the plaintiff on the other. THIS argument is based on the ground that in the opening sentence of the document Ex. 1 the following description appears after the name of Tehumal s/o Jamatmal (esllz ukudjke ,. M rsgwey ds uke ls , Dykl duvsdvlz dh cuh gqbz deiuh ds fgllsnkj ). Translated into English,it would read, "partner of M/s Nanakram & Tehumal Co. A class contractors". We have given our earnest consideration to this argument and we think that there is no substance therein. The perusal of the docu-ment shows that this was only a description which was given to Tehumal. In other words, Tehumal who was entering into contract with Bhojraj, was described as a partners of Nanakram Tehumal and Company. It was nowhere shown in this document if he was entering into contract on behalf of the company or that the company had authorised him to do so. It is significant that in para 8 of the agreement again, only Tehumal son of Jamatmal was shown as a partner having -/8/-annas share. If both Tehumal and Nanakram were to enter into partnership with Bhojraj or if the partnership firm by them was to enter into another partnership with Bhojraj there was nothing to prevent the parties from making this position clear in Ex. 1. On the contrary, it is clear from this document that Tehumal had taken care to show that only he was entering into contract with Bhojraj and the name of Nanakram was knowingly omitted. Again in the document Ex. A-16 whereby Nanakram gave the authority to the new partnership of Tehumal and Bhojraj, he took special care to point out that he was a partner of M/s Nanakram Tehumal & Co. Udaipur and that the said company authorised Tehumal and Bhojraj partners of M/s. Tehumal Bhojraj of Udaipur to receive all the cheques. It is noteworthy that in this document again Nanakram took special care to avoid his name being shown as a partner of the new firm which was formed by his father and Bhojraj. 10. It is urged by learned counsel for the appellant that in his statement in the trial court dated 16. 10. 1957 Tehumal had admitted that Nanakram had -/4/-annas share in the Lodisar tank, That he had also -/4/- annas share and Bhojraj had -/8/- annas share. Similarly, it is pointed out by him that Nanakram had also admitted in his statement dated 4. 7. 1958 that his company had -/8/- annas share and Bhojraj had -/8/- annas share. Learned counsel is true to the extent that Tehumal and Nanakram have not been quite consistent in their statements but their legal relationship would be determined by the documents Ex. 1 and Ex. A-16 which were executed by them and that position cannot be altered by their later statements even though they may not be quite consistent. A careful perusal of the statement of Tenumal and also that of Nanakram as a whole shows that it was not admitted by either of them in clear terms if Nanakram had entered into partnership with Bhoj Raj or if Nanakram was a party to the reference which was made to the arbitrators. In fact, their entire defence from the very start was this and it appears that since they were examined at very great length inconsistencies have crept into their statements. In the unstamped agreement Ex. A-17 which was later on repeated in the stamped agreement Ex. A-21 dated 30. 7. 1956, it again appears that Nanakram's name was significantly omitted in both these documents. Nanakram was not a signatory to Ex. A-17 or Ex. A-21. It is pointed out by learned counsel that Tehu Mal had signed Ex. A-21 as representative of M/s Nanakram Tehumal & Go. but in our opinion, this argument is not correct. On the contrary, we see that he had only described himself as a partner of M/s Nanakram Tehumal & Co. It cannot be urged with any justification that this arbitration agreement was entered into by him on behalf of M/s Nanakram Tehumal & Go. If the said company on the one hand and Bhojraj on the other, were to refer their dispute to the arbitrators there was nothing to prevent the parties from mentioning this fact in clear terms. It may be observed here that in the firm M/s Nanakram Tehumal & Co. there were only two partners. It was not in fact a company consisting of a number of members. If one person was to be authorised by the company there should have been a clear authority to that effect. In other words, if Nanakram was also to be bound by the reference which was made to the arbitrators, his signatures should also have been obtained on this document. It was nowhere suggested or stated that Nanakram was not available. In fact, no reasons have been given why Nanakram's signatures were not obtained on Ex. 1 if he was to be treated as a partner with Bhojraj. Similarly, no reasons have been given why Nanakram's signatures were not obtained on Ex. A-l if he was to be bound by this reference. It may be pointed out that according to sec. 19 of the Indian Partnership Act a partner of a firm has not got even implied authority to submit a dispute relating to the business of the firm to the arbitration. Therefore even if it were to be assumed for the sake of argument that Tehumal had signed Ex. A-21 as a representative of M/s Nanakram Tehumal & Co. he had no authority to do so unless he was empowered by Nanakram to submit to an arbitration agreement on behalf of the company. 11. It is pointed out by learned counsel for the appellant that the award Ex. 7 shows that Nanakram had presented himself before the arbitrator Mohandas on 21st August, 1056, 21st August, 1956 and 3rd October, 1956 and, therefore, it should be presumed that he had submitted to the jurisdiction of the arbitrators and that being so, it should be taken that he had ratified the agreement for arbitration. It is true that the award and the statement of Mohandas show that Nanakram had appeared before the arbitrator on the said three dates but simply because he appeared before an arbitrator on three out of thirty one dates which were fixed for hearing-it cannot be presumed that he had submitted to the jurisdiction of the arbitrator. It is not stated by Mohandas if he had ever examined Nanakram during the arbitration proceedings. The order-sheet of 20th August, 1956 shows that Nanak Ram had only presented before the arbitrator a file relating to the claim which he had made against the Irrigation Department. That file consisted of 163 pages and a receipt was given to Nanakram. The order-sheet dated 21st August, 1956 shows that the said file was returned to Nanakram. The order-sheet of 3rd October, 1956 shows that Nanakram had presented a copy of his partnership deed with his father Tehumal and a receipt was given to him. It would appear from all the three entries in the order-sheet that Nanakram did not submit to the arbitrator if he had any claim against Bhojraj or if he made any kind of objection or statement relating to the dispute between his father and Bhojraj. At the most it can be said that he appeared before the arbitrator as a witness and produced that file which related to the claim which he had made against the Irrigation Department. On 20th August, 1956 he gave that file to the arbitrator and on 21st August, 1956 he obtained it back from him. THIS would not show if he made any kind of statement before the arbitrator. Similarly, he does not appear to have made any kind of statement on 3rd October, 1956. It only appears from the proceedings that two documents which were in his possession were required by the arbitrator for perusal and he obliged the arbitrator by producing the said documents. 12. It is urged by learned counsel for the appellant that Nanakram knew that the arbitrators were going to resolve a dispute in which he was also involved, and so inaction on his part, to inform the arbitrators that he would not be bound by their award, should give rise to a presumption that he had submitted to the jurisdiction of the arbitrators. In support of his argument, the learned counsel has referred to Hanuman Chamber of Commerce Ltd. , Delhi Vs. Jassaram Hiranand (l) and Shanker Das Rup Lal Vs. Governor in Council (now Dominion of India) (2 ). In this earlier case, which was followed in the next case, it was observed as follows : " According to Sec. 18, Partnership Act, a partner is the agent of the firm for the purposes of the business of the firm. Sec. 19 provides that in the absence of any usages or custom of trade to the contrary, the implied authority of a partner or such agent is not to be deemed to empower him to submit a dispute relating to the business of the firm to arbitration. Sec. 196, Contract Act provides that where an act is done by one person on behalf of another without that other's knowledge or authority the latter can ratify that act and on such ratification, the same effects will follow as if the act had been performed by his authority. Assuming that the initial reference of the dispute in the present case was made by the referring partner without any express or implied authority from his other partners, there was nothing to prevent such partners from ratifying his act which was unauthorised at its inception. Ratification need not be by any express act or declaration and may be implied from conduct (vide sec. 193, Contract Act ). It has quite frequently been inferred from mere acquiescence or silence of inaction on the part of the party concerned. " It may be pointed out that in Hanuman Chamber of Commerce Vs. Jassaram (l) a suit was brought by M/s R. B. Seth Jassaram Hira Nand, a firm carrying on business at Delhi against Hanuman Chamber of Commerce having its registered office at Delhi. After some proceedings were taken in the court both the parties presented a joint application to the court for reference of the whole suit to the arbitration. Thereafter the arbitrator gave an award. One of the grounds on which the award was attacked by the defendants was that all the partners of the plaintiff's firm had not joined in the reference and that the reference was accordingly invalid. It is obvious that the validity of award in that case was not challenged by any partner of the plaintiff's firm who had not jointed in the reference but it was challenged by the defendants and it was in those circumstances that the learned Judge proceeded to observe that the ratification on behalf of the plaintiff need not have been filed by any express act or declaration and should be implied from conduct. Similarly, in the case of Shanker Das Rup Lal Vs. Governor General in Council (2) it was found by the learned Judge that after his appointment the arbitrator had given a notice to the firm to appear before him and thereafter Shri Brij Lal and Shri Iqbal Kishan did appear on that date and were appearing even subsequently. It was also found by him that Brij Lal was the person who was incharge of the litigation on behalf of the firm and he had authority to refer the matter to the arbitration which he did. In spite of this authority having been given to Brij Lal, other partners did not come forward to challenge what was done by him and it was in those circumstances that the learned Judge came to the conclusion that their conduct amounted to ratification. In the present case, the reference to the arbitration was not made through the court. It has already been pointed out above and need hardly be repeated that Nanakram's signature was not obtained on the agreement whereby the dispute was to be referred to the arbitration. It has also been pointed out above that Nanakram appeared before the arbitrator simply to hand-over or receive back some paper which were required by the arbitrator. It is not on record if Mohandas ever made it clear to Nanakram that he was going to give an award against him as well. Under the circumstances, it was not necessary for Nanakram to take any action and it cannot be presumed against Nanakram that he had impliedly submitted to the jurisdiction of the arbitrators. In our opinion, the decision of the trial court is correct and it has rightly held that the award was not binding on Nanakram since he was not a party to the arbitration. The arbitrator had no jurisdiction to give an award against Nanakram as he had given no authority to the arbitrator in any matter against him. 13. It now remains to be considered whether the award was binding on Tehumal alone. In the first place we find that while giving their award the arbitrators have so mixed the position of Nanakram and Tehumal that it is difficult to make the award separable against Tehumal alone. Secondly, it appears that on 20 out of 31 dates on which the matter was taken up by the arbitrators Mohan Das alone was present and the other arbitrator Fagan Mal was not even present on the said dates. Mohan Das (P/w 3) himself stated in the trial court that the arbitration proceedings were carried on by him at his workshop and that Fagan Malthe other arbitrator, did not use to be present there. He used to go to Fagan Mal's house at night and inform him of the proceedings which were taken in the day. Fagan Mal has not been examined by any party. Now, it is well settled that where there are two or more arbitrators all should execute the award at the same time and place. If they fail to do so, the award may be invalidated. (See Russell on Arbitration at page 125 ). In Thammiraju Vs. Bapiraju (3) a suit was referred to three arbitrators. Objection was taken to the award on the ground that one of the arbitrators was absent during the examination of witnesses. It was held that it was the duty of each and every one of the arbitrators to be present at all the meetings, more, especially during the examination of the witnesses and that since one of the arbitrators was guilty of misconduct in absenting himself from the meetings and the other two arbitrators were guilty of misconduct in examining witnesses in the absence of the third arbitrator, the award was invalid and was set aside. Similarly in Dhooli Atchayya Vs. Dhooli Peddenti (4) a dispute was referred to five arbitrators and it was further agreed that the opinion of the majority would prevail. Two of the arbitrators did not act and under the circumstances the award was held null and void in spite of agreement that the opinion of the majority would prevail. In Badri Lal Vs. Lakshya (5) two out of three arbitrators made inquiries and gave the award. It was held that the award was bad for misconduct of the arbitrators. In Sheo Dutt Vs. Pandit Visnudatta (6) it was found by the court that one out of the five arbitrators dominated the proceedings and took undue advantage of the two illiterate arbitrators, and all the arbitrators did not jointly deliberate in the proceedings or in the making of the award. It was held that the whole award was vitiated. In Patel Bros. Vs. Shree Meenakshi Mills Ltd. (7) a board was constituted to hear an appeal and one of the nine members of the board left the meeting. The decision by the remaining eight members was held to be a nullity. 14. Learned counsel for the appellant has not challenged the proposition of law that all the arbitrators should work together but it is pointed out by him that Tehumal did not raise any objection in proceedings being carried on by one arbitrator only. It is next urged that the dispute between the parties was based on accounts, that Mohandas took pains to go to through the accounts and he was keeping Faganmal regularly posted with all the proceedings which he had taken from time to time. Thus, according to learned counsel, Tehumal had waived the irregularity, if any, committed by Mohandas and so it does not now lie in his mouth to raise this objection. He has drawn the attention of the Court to Ex. 3. It was a notice given by the arbitrators to the respondents. It is pointed out by him that on this notice Tehumal had written that the arbitrators should continue the proceedings and thus he had waived the irregularity, if any, committed by that date, that is upto 27. 9. 1956. In support of his argument, learned counsel has referred to (Ardhikai) Lakshmamma Vs. Gorle Appadu (8 ). In that case the learned Judge relied upon Thammiraju Vs. Bapiraju (3) and held that it was incumbent on each of the arbitrators to be present at each of the meeting and that accordingly, if any arbitrator absented himself from the meetings the award would be liable to be set aside as illegal; but it was also added that if the party represents and does not object at the time and allows the proceedings to go on and terminate then it is too late for the party, after the award has been made, to insist on this objection. It may be pointed out that in this particular case the matter had gone before a learned single Judge in revision and he did not like to interfere on the ground that no substantial harm had resulted from illegality. 15. Learned counsel has next referred to U. Gunuwa Vs. U. Pyinnyadipa (9 ). In that case one of the arbitrators was absent at the second of the three meetings at which witnesses were examined and so it was urged that the award was vitiated. In that case a suit was filed by the party against which the award was given to get it set aside. The suit was dismissed by the trial court on the ground that objection regarding the absence of the arbitrator at the second meeting was not taken at the time of the arbitration and was not mentioned in the pleadings. It was held that the plaintiff could not be allowed to take this objection at a later stage of the proceedings. The same decision was upheld by the first appellate court and so the High Court also did not consider it proper to interfere in second appeal against the concurrent finding of the two lower courts. Learned counsel has then referred to U Po Hlaing Vs. Daw Ngwe (l ). In that case it was observed by the learned Judge that he was fully aware that when the arbitrators are appointed they are supposed to Act together. Then the learned Judge proceeded to remark that he did not think that it was absolutely essential that all the arbitrators should be present when all the evidence is recorded provided all the arbitrators are made acquainted with the evidence that has been recorded before they come to their decision. With great respect it may be observed that this observation goes too far and we find it difficult to accept it in toto. 16. In our opinion when the parties to a dispute agree to appoint more than one arbitrator, then it is expected that all the arbitrators should work together as members of one tribunal and it is not permissible that one or more of them should examine the witnesses and conduct all the proceedings while others may not take equal interest in the matter. In the present case, as already noted above, about 31 dates of hearings were fixed and out of them the second arbitrator Faganmal remained absent on 20 dates of hearing. THIS shows that he utterly neglected his duty and left the entire matter in the hand of the other arbitrator. It appears from the proceedings that Tehumal's witnesses were examined on 17. 9. 56 and 20. 9. 56 and on both these dates Faganmal arbitrator was not present. Similarly, Bhojraj's witnesses were examined on 1. 10. 56 and on that date also Faganmal was absent. THIS shows that all the oral evidence was recorded in his absence. In our opinion, the trial court was right in holding, under the circumstances, that Faganmal had misconducted himself in not taking part in the proceedings and joining the arbitrator in only signing the award. Similarly, Mohandas misconducted himself in carrying out the proceedings alone. 17. Another objection raised by the respondents before the trial court was that the statement of his witness Bhagwandas was partly recorded by arbitrator Mohandas on 20. 9. 56 and since that statement was against the appellant, it was torn away. Tehumal thereafter did not examine other witnesses since he had lost confidence in arbitrator Mohandas. He presented them before the other arbitrator Faganmal and requested him to record their statements but he refused to do so and thus the evidence which he wanted to place on record was shut out. These allegations have been found to be proved by the trial court. Learned counsel for the appellant has urged that the finding of the trial court on these points is based only on the statements of Bhagwandas and Tehumal and since there are differences in their statements they should not have been believed. It is also pointed out that the trial court has referred to Ex. A 35 and Ex. A 36 and they do not support the respondent. 18. We have given due consideration to the argument and in our opinion it is not tenable. The trial court has not only relied upon the mere statements of Bhagwandas and Tehumal but also relied on two other documents. Unfortunately it has referred in its judgment to Ex. A. 35 and Ex. A. 36. THIS, however, appears to be a typing mistake only because the contents which have been referred in the judgment relate to Ex. A. 38 and Ex. A. 39. 19. It is urged by learned counsel for the appellant that these applications were made by Tehumal and he could make any allegation but it cannot be said if the allegations made by him were correct. 20. It would be enough to observe that these documents find place in the record which was presented before the court by the arbitrator Mohandas. It cannot, therefore, be believed that they might have been surreptitiously placed on record by the respondent. It has not been challenged that both these documents are signed by Tehumal. If the allegations which were made by Tehumal in these documents were incorrect, Faganmal ought to have put a note to that effect and disposed of the applications accordingly. It may be pointed out that in Ex. A 38 which was addressed to Faganmal arbitrator and presented to him on 21. 9. 56, it was alleged by Tehumal that on 20. 9. 56 Mohandas arbitrator first examined his witness Bherusingh and then proceeded to examine the next witness Bhagwandas. When the opposite party proceeded to cross examine the witness then the arbitrator made a false pretext and tore away that statement since it was against the interest of the other party. The applicant made a protest and thereupon Mohandas replied that he was not appointed as an arbitrator by him. It was also stated by Tehumal that Faganmal should obtain an explanation from Mohandas and so long as this matter was not clarified he would not produce other witnesses before him. It was also alleged by him that Mohandas was related to Bhojraj and was, therefore, showing partiality to him. An objection was also raised about the evidence which was recorded on 7. 9. 56 by the other arbitrator in the absence of Faganmal. The perusal of this document clearly shows that Tehumal had not waived or condoned the irregularities which were being committed by Mohandas. It also shows that very serious allegations were made against the conduct of Mohandas to the other arbitrator Faganmal and still it does not appear if Faganmal cared to inquire into them and dispose of this application satisfactorily. Similarly, the perusal of the next application Ex. A 39 shows that Tehumal had taken certain witnessess to Faganmal at his house and requested him to examine them. It was also stated that the witnesses were called from Doongarpur and if they were not examined he would be put to unnecessary expenses. THIS application was also not disposed of by Faganmal since we find that no order was passed thereon. The statements of Bhagwandas and Tehumal thus stand corroborated, by the said documents and, therefore, it cannot be held that the trial court had committed a mistake in believing them. It was very wrong on the part of Mohandas to tear away the statement of Bhagwandas. It is also proved from the said document that all the evidence which Tehumal wanted to be examined was not recorded. THIS was another misconduct on the part of both the arbitrators. 20. In view of the circumstances narrated above, the trial court was perfectly justified in setting aside the award. We find no force in this appeal. It is hereby dismissed with one set of costs. .