JUDGMENT
C.L. Chaudhry, J.
(1) Amir Singh Jain filed a suit against Smt. Bimla Devi jain, his daughter-in-law and Surinder Kumar Jain his grand son, for dissolution of partnership and rendition of accounts. It was stated in the plaint that on 29th May, 1969, Amir Singh Jain and Bimla Devi Jain entered into an agreement of partnership whereby Amir Singh Jain took Bimla Devi Jain as his partner in the business being carried on under the name and style of “M/s. Mahavir Atta Bhandar” on the terms and conditions mentioned therein. It was further averred that the partnership deed was executed by him on the repeated requests of his son Attar Sain jain, the husband of Bimla Devi Jain. The case of the plaintiff was that this was done by Attar Sain Jain in order to fraudulently and wrongfully usurp and misappropriate for himself and the defendants large amounts of money out of the said business. By another agreement dated 1.4.1972 Surender Kumar Jain was also admitted as a partner in the running business. The defendant No.2 misconducted himself in the affairs and management of the business. On many occasions he took out various amounts out of the partnership funds. On or about 30.10.1974, the plaintiff met with a serious accident as a result whereof he sustained grave injuries and remained admitted in the Willingdon Hospital, and thereafter confined to bed for several months. After he recovered from illness, he visited the house and the shop in the month of April , and found that the tenanted premises had been broken open and were occupied by the defendants. All his apparels, articles and substantial portion of goods and stock in trade were found missing. The defendants put up their own lock on the shop.The defendants illegally and fraudulently excluded the plaintiff from the partnership business and its affairs. The defendants had grossly misconducted themselves in the affairs of management of the partnership business and fraudulently and illegally excluded the plaintiff there from. The plaintiff by letter dated 27th September, 1976 dissolved the partnership, which was at will, as from 27th September, 1976 and called upon the defendants to render true and complete accounts of the partnership business. In these premises, prayer was made to pass an order and declare that the partnership business stood dissolved as from 27th September, 1976 and a direction was sought against the defendants to render accounts.
(2) Before any written statement could be filed, the parties agreed that Mr, M.L. Jain, Advocate may be appointed as a sole Arbitrator to decide the dispute between the parties. By order dated 16th September, 1981, this court appointed Shri M.L.Jain, Advocate as the sole Arbitrator to decide the dispute forming subject matter of the suit.
(3) The arbitrator entered up (4) On the pleadings of the arties the following issues were framed:- (1)Whether the objections filed under Section 30 of the Arbitration Act are within time? (2) Whether the impugned award is liable to be set aside on the grounds as mentioned in the Objection Petition? (3) Relief. The parties were given opportunity to lead evidence by way of affidavits. (5) I have heard the learned counsel for the parties and have bestowed my thoughtful consideration to the issues involved. My findings on the above issues are as under:- Issue NO.1:- (6) From the order dated 11.1.1990 it appears that the notice of filing of the award issued to the plaintiff was received back unserved with the report that he had left the given address. So it is obvious that by 11.1.1990 the plaintiff had not been served with the notice of filing of the ward. However the objections were filed on 25.9.1989. In view of this, I hold that the objections were filed within time. Issue N0.2:-
(7) The first objection is that in para 8 of partnership deed dated 1.4.1972 the defendants fraudulently got introduced a clause about the tenancy rights of the plaintiffs shop No. 1602, Main Bazar, Pahar Ganj, New Delhi stating therein that the tenancy rights would belong to them. The arbitrator ignored the fact that legally the defendants could not even introduce such a clause in the partnership deed without the consent of the landlord/owner. In the reply filed on behalf of the defendants it was stated that neither any pleading nor any evidence was introduced regarding the alleged fraud inspite of opportunity having been granted to the objector. Even otherwise, without the particulars of fraud, the plea could not be entertained. The tenancy rights had already been transferred in the name of defendant No.2 by the landlord of the premises and the defendant No.2 was regularly paying the rent of the premises. The plaintiff was relying upon the partnership deed which contained arbitration clause but wanted to avoid one of the clauses out of the same.
(8) MR.MITTAL appearing for the Objector contended that the plaint was not referred to the arbitrator to decide the dispute between the parties. In the claim submitted on behalf of the plaintiff before the arbitrator it was stated that in April, 1972 Attar Singh Jain asked the plaintiff to join his son Surinder Kumar Jain also in the partnership. The defendants and Attar Sain Jain fabricated a partnership deed dated 1.4.1972 and in the said partnership deed they introduced a wholly wrong and incorrect clause about the tenancy rights of shop No. 1602, Main Bazar, Pahar Ganj, New Delhi, stating that the tenancy rights would belong to them. The plaintiff could neither think of parting with tenancy rights nor could do so without the permission of the landlord. The socalled partnership deed dated 1.4.1972 was neither read out to him nor explained. It was also contended that in para 4 of the affidavit of Amir Singh Jain dated 7.5.1972 it was also mentioned that defendants and Attar Sain Jain introduced a wholly wrong and incorrect clause in the partnership deed about the tenancy rights of shop No. 1602, Main Bazar, Pahar Ganj, New Delhi. In sum and substance the contention was that since there were allegations of fraud in executing the partnership deed the matter regarding fraud could not be referred to the arbitrator for decision.
(9) On the other hand Mr.Kanwal Narain contended that the subject matter of the suit was referred for arbitration. The plaint contained no allegation that clause No.8 of the partnership deed dated 1.4.1972 was introduced by practicing fraud on the plaintiff. The plaintiff relied upon the partnership deed dated 1.4.1972 and filed a suit on the basis of that partnership deed for dissolution of partnership and rendition of accounts. It was never pleaded in the plaint that the partnership deed dated 1.4.1972 was a forged document and did not constitute a partnership between the parties and the plaintiff was not bound by the terms of the partnership deed, rather the partnership deed dated I.4.1972 was made the basis of the suit.
(10) I have perused the award. On this aspect of the matter the arbitrator observed that the shop admittedly was in possession of Surinder kumar whom the landlord of the shop has taken as his tenant. There is no cogent evidence to prove that clause 8 was clandestinely or deceptively inserted in the partnership deed. I have considered the matter. In my opinion the contention of Mr. Mittal is not well founded. Amir Singh Jain, the plaintiff filed the suit for dissolution of partnership and for rendition of accounts. Rather he relied upon the partnership deed dated 1.4.1972. His allegations in the plaint were that the defendants had misappropriated the amounts of partnership and they were conducting the partnership business by excluding the plaintiff. It was nowhere the case of the plaintiff that clause No.8 of the partnership deed was got signed by practicing fraud on him or that his signatures were obtained by misrepresentation. The Court referred the subject matter of suit to the Arbitrator. The plaintiff filed claim before the Arbitrator and for the first time he stated in the claim that clause No.8 of the partnership was got signed from him by practicing fraud and misrepresentation. However, the arbitrator on the evidence produced before him came to the conclusion that there was no cogent evidence to prove that clause No.8 was clandestinely or deceptively inserted in the partnership deed. It is a finding on merits and it cannot be assailed while dealing with the award under Section 30 of the Arbitration Act.
(11) MR.MITTAL next contended that the application dated 18.7.1988 was filed before the Arbitrator wherein prayer was made that the matter may be sent back to the court in view of the stand taken by the defendant. It was stated that the defendants in paragraph 4 of the reply to the claim filed on behalf of the plaintiff had stated that in view of the allegations contained in para 4 of the claim the arbitrator could not proceed any further and the reference may be returned to the Hon’ble Court. The arbitrator should have returned the reference to the Court for appropriate orders.
(12) On the other hand Mr. Kanwal Narain contended that this plea was taken because in the claim filed by the plaintiff before the Arbitrator he had made allegation that the partnership deed dated 1.4.1972 was got signed from him by misrepresentation and as such the plaintiff was not entitled to claim any relief on the basis of that partnership deed. The defendants, in this context had stated that the suit filed for the dissolution of partnership and rendition of accounts was itself not maintainable if the plaintiff had repudiated the partnership itself. The Arbitrator dealt with this aspect. It was observed by the Arbitrator in the award as under:- “TOWARDS the close of arbitration proceedings an application was filed by L.R. s of the plaintiff, that in view of the defendant’s objection in the suit that as the plaintiff has alleged fraud in incorporation of clause 8 in the partnership deed the matter was not referable to arbitration. The arbitrator may not give the award and refer the matter back to the court. As the parties, after reference have willingly continued with the arbitration for a number of years, the objection, if any, to reference to arbitration is deemed to have been waived”.
(13) I have considered this aspect. In my opinion the contention of Mr. Mittal has no force. The matter was referred by the Court for decision. No application could be filed before the Arbitrator to return the reference on the ground that allegations of fraud had been pleaded. The proper remedy was to apply to the court for revocation of the authority of the arbitrator. It advised, the plaintiff could move the court for revocation of the authority of the Arbitrator on the ground that the subject matter of the reference contained allegations of fraud. As I have stated earlier, the plaint (subject matter of the suit which was referred to the arbitration) did not contain any allegation of fraud.
(14) The next objection to the award is that the learned arbitrator misconducted the proceedings by holding that there was no proof that the plaintiff had left goods worth Rs.50,000.00 in the shop at the time when he suffered fracture in his leg. This objection relates to the merits of the award and cannot be dealt with under Section 30 of the Arbitration Act.
(15) The next objection is that the arbitrator misconducted the proceedings by holding that the plaintiff has failed to prove that the partnership has earned profits of more than Rs.10 lacs and that the defendants were not liable to pay anything on this account to the plaintiff. This objection also relates to the merits of the award and it cannot be gone into in these proceedings.
(16) The next objection is that the arbitrator misconducted the proceedings by holding that as the other two L.R.s of the plaintiff had withdrawn from the proceedings their shares would go to the defendant, Surinder Kumar and not to the legal heir of the plaintiff, Prem Chand Jain. This objection also relates to the merits of the award and is not entertainable under Section 30 of the Arbitration Act.
(17) Last objection is that the arbitrator misconducted the proceedings in holding that the partnership had no goodwill and that the tenancy of the shop was not legally transferable and that there was no premium of the shop inasmuch as the premium of the shop in Main Bazar, Pahar Ganj, New Delhi was worth more than Rs.8 lacs. On this aspect of the matter the award of the arbitrator is as under:- “SHOPNo. 1602, Main Bazar, Pahar Ganj, was initially taken on rent in 1940, by late Shri Amir Singh plaintiff, from its previous landlord and he paid rent to the successor landlord, Girdhari Lal Gandhi (DW-2) since 1962. Ex.P-6 to P-12 are the rent receipts issued by DW-2 Girdhari Lal in the name of plaintiff Amir Singh for payment of rent for the period from February 1978 to December 1981. However, after the formation of the partnership with both the defendants on 1st April, 1972, the rent of the shop was paid from the partnership business till 1974-75 when the plaintiff incurred losses in chit fund business and Surinder Kumar, defendant No.2 started paying rent to the said landlord but receipts continued to be issued by DW-2, Girdhari Lal in the name of the plaintiff till the latter died. Thereafter the said landlord started issuing receipts in the name of Surinder Kumar (defendant No.2) after perusal of the partnership deed P-13 dated 1.4.1972. Earlier PW-1, Anoop Singh (one of the LR.s of deceased plaintiff) admitted in cross-examination having ascertained from Girdhari Lal, DW2 about payment of rent by Surinder Kumar, defendant to him and his having issued receipt marked “C’ on 1.4.1986 for rent from 1985 October to March 1986. The shop admittedly had been in possession of Surinder Kumar to whom the landlord of the shop has taken as his tenant. There is no cogent evidence to prove that clause 8 was clandestinely or deceptively inserted in the partnership deed. No business of the partnership is being earned on in the shop since before the present litigation started in 1977. The partnership for business has no goodwill worth sharing by and distribution among its partners. Besides, the tenancy (Thaiya) of the shop is not legally transferrable by a tenant to fetch premium nor is it legally claimable or shareable. The plaintiff or his LRs are not entitled to the possession of the shop or anything by way of premium of tenancy at one time held by their father, the plaintiff. I find that plaintiff/his LRs are not entitled to the shop or its key.”
This objection also relates to the merits of the award. However, I have considered the award given by the arbitrator. In my opinion, the award in this respect does not suffer from any legal infirmity and the arbitrator has given cogent reasons in arriving at the conclusion. I am not inclined to interfere with the award on this aspect of the matter.
(18) In view of my above findings there is no error apparent on the face of the award, f The arbitrator has not misconducted himself or the proceedings. I find no legal infirmity in the award. As a consequence thereof, I dismiss the objections. The award is made Rule of the Court. Decree may be drawn in terms of the award. However, in the circumstances of the case I leave the parties to bear their own costs.