MATHURADAS MAGANLAL Vs. MAGANLAL PARBHUDAS

JUDGEMENT

(1.) This is an appeal from a decision of Mr. Justice Kania. The plaintiff sues the defendant upon Clause 9 of a certain award. His case, according to the plaint, is tha the and the defendant and certain other relatives of theirs were partners in a firm carried on in the name of the defendant, that is to say, as Maganlal Parbhudas, and that partnership was dissolved in 1929, when disputes arose between the parties which were referred by a written agreement to the arbitration of two gentlemen. It is further alleged in the plaint that the plaintiff, in consideration of his subscribing and procuring subscriptions for shares in the Sidhpur Mills Co. Ltd., was to be entitled, under an agreement between himself and the defendant, to a share of a commission payable to the defendant by that company, of which the defendant and another were agents, and then it is alleged that by a verbal agreement between the plaintiff and the defendant arrived at in the course of the arbitration to which I have referred, the dispute between the plaintiff and the defendant as to the plaintiff's right to this commission was referred for decision to the same two arbitrators. Then it is alleged that the arbitrators made their award, and by Clause 9 they dealt: with the question referred by this oral agreement, that is, the dispute between the plaintiff and the defendant, and they awarded the plaintiff a share of the defendant's commission. The plaintiff also claims in the alternative that if the award, or Clause 9 thereof, is invalid and not binding on the defendant, then the defendant is bound specifically to perform the agreement and to pay to the plaintiff a share of the commission alleged to have been agreed to be given to him.

(2.) Various issues were raised both as to the verbal agreement to refer and the validity of Clause 9 of the award, and also as to the agreement between the plaintiff and the defendant as to the latter's commission. The learned Judge dealt with the issues relating to the claim of the plaintiff under Clause 9 of the award at a preliminary hearing, and he held that a verbal agreement to refer matters to arbitration could not be proved under Indian law and he answered issues Nos. 3, 4, 5, and 6 in that sense. In a separate judgment he held that the agreement as to sharing commission was not proved, and therefore dismissed the suit.

(3.) The principal point which arises on this appeal is the question dealt with in the first judgment of the learned Judge, namely, whether a verbal agreement to refer to arbitration can be proved under Indian law. But Mr. Coltman, on behalf of the respondent, has contended that in any event the plaint is bad on the face of it. He suggests that the plaintiff is suing under the whole award, and that under Secs.16 and 30 of the Specific Relief Act he is not at liberty to sue for the enforcing of part of his rights. He also alleges that there is no averment in the plaint of the fact that the plaintiff is ready and willing to carry out his part of the bargain. In my opinion there is no force in those contentions. The case of the plaintiff is that an oral agreement was made to refer to arbitration a particular question in dispute between the plaintiff and the defendant, and the mere fact that the finding of the arbitrators upon that matter is included in a document which is also an award made between the plaintiff and the defendant and other parties on a written reference, in my opinion, is irrelevant. So far as the award itself is concerned, it recites the written agreement to refer the questions in dispute between the partners in the firm of Maganlal Parbhudas in respect of that partnership, and when one looks at Clause 9 of the award it deals with a question not between those partners, or relating to that partnership, but a question between the plaintiff and defendant in relation to an outside matter, and if one took the award by itself it might no doubt be said that Clause 9 went beyond the reference. But what the plaintiff desires to do is to prove that there was an oral reference as to the matters dealt with in Clause 9, and I can see no reason why he should be precluded from doing that because the award on the reference happens to be embodied in a document which deals with other matters. It is, in my opinion, quite clear on the plaint that what the plaintiff purports to sue on is the oral agreement to refer, which includes an agreement to be bound by a valid award made on the reference followed by a written award, and that is in form a perfectly good suit. As to the contention that the plaint does not contain an averment by the plaintiff to carry out his part of the bargain, the answer is that there is nothing under the award for the plaintiff to do. Mr. Coltman contends that the draft agreement, referred to in the plaint, and annexed thereto as Ex; B, which is a draft sent by the plaintiff to the defendant, which the defendant refused to execute, shows that there were some obligations which the plaintiff considered that he ought to carry out. But so far as those obligations are concerned, I think that the plaintiff by sending the draft to the defendant impliedly offered to carry out those obligations.