JUDGMENT
Anil Kumar, J.
1. This order shall dispose of the appeal filed by the Petitioners under Section 37(2) of the Arbitration and Conciliation Act, 1996 against the dismissal of his application under Section 16 of the Act seeking adjudication of the issue relating to settlement of accounts of the dissolved firm by the Arbitration Tribunal.
2. Brief facts to appreciate the controversies between the parties are that Petitioners and respondent had partnership in terms of a deed of partnership dated 1.9.1985. The partnership deed had an arbitration agreement incorporated in Clause 15 which is as under:
15:- That all the disputes and questions in connection with the partnership or this deed, arising amongst the partners shall be transferred to arbitration and its decision shall be binding on all the partners.
3. The partnership was at will and could be dissolved by giving two months notice in writing to other partner.
4. Sh. Amar Singh, respondent filed an arbitration application being AA No. 256/2002 for appointment of an arbitrator in terms of arbitration agreement between the parties contained in Clause 15 of the partnership deed which was allowed and an arbitral tribunal was constituted with a retired Judge of this Court as a presiding arbitrator.
5. During the pendency of the arbitration proceedings, it seems a notice dated 8.5.2004 was given by the petitioners to the respondent dissolving the partnership arrangement dated 3.9.1985 in terms of Clause 13 which was replied by the respondent denying the averments made by the petitioners in their notice and it was also contended by the respondent that if the petitioners wish to invoke clause 13 of the partnership agreement they will have to follow the contents of the same. Clause 13 of the partnership agreement is as under:
13:- That the partnership is at Will and can be dissolved by any partner by giving two months notice in writing to the other partners. During the period of this notice the accounts shall be finalized and settled amongst the partners.
6. Thereafter another notice dated 21.6.2004 along with accounts as drawn uptill 31.3.2004 was sent. The respondent did not reply to the said notice and instead filed a petition being OMP No. 216/2004 in the High Court which was specifically dismissed as withdrawn on 25.8.2004. However, while dismissing the petition as withdrawn it was observed that whether the petitioners herein should be restrained from dissolving the partnership firm, shall be dealt with the Arbitral Tribunal as he is seized with the matter.
7. The petitioners thereafter raised the matter regarding settlement of accounts and dissolution of partnership agreement between the parties as the dissolution of the partnership shall also be within the ambit of arbitration agreement as contemplated under Clause 15, however, the arbitral tribunal by its order dated 26.2.2005 observed that for deciding the issue regarding dissolution the petitioners may file appropriate application along with relevant documents and fix the case for disposal of application on 27.3.2005.
8. The petitioners, therefore, filed an application under Section 16 of the Arbitration & Conciliation Act, 1996 praying inter-alia that since the issue regarding settlement of accounts consequent upon dissolution of partnership be also adjudicated by the Arbitral Tribunal so as to enable settlement of the disputes relating to partnership between the parties. The application of the petitioners was considered by the arbitral Tribunal and was dismissed by order dated 11.8.2005 holding that partnership had not been dissolved when reference was made to the Arbitral tribunal nor it is the case of the petitioners that the firm had been dissolved at the time when the Arbitral Tribunal was appointed. It was held that the parties had raised their claims and counter claims for settlement of accounts of running partnership business and, therefore, the scope of reference is thus limited to go into settlement of the account between the partners of a running partnership business without dissolution of the firm. According to Arbitral Tribunal the scope of submission for arbitration was, therefore, neither to dissolve the partnership nor to settle the accounts of the dissolved firm which has been dissolved later by serving notice provided under Section 44 read with Clause 13 of the partnership deed during these proceedings. Settling the accounts of a dissolved firm would tantamount to enlarging the scope of arbitration beyond the scope of submission/reference for arbitration made by order dated 18.9.2003. According to Arbitral tribunal since the parties did not agree for written reference to adjudicate by the arbitral tribunal and their unwillingness to pay the cost and as no agreement could be reached between the parties and the respondent refused/declined to make reference to us, therefore, the enlarged/wider controversies sought to be raised by the petitioner cannot be entertained and the application was accordingly dismissed.
9. Aggrieved by the order dated 11.8.2005 the petitioners have filed the present appeal impugning the order of the Arbitral Tribunal contending inter-alia that the Arbitral Tribunal has erred in considering the disputes sought to be adjudicated upon and which were set out in the application under Section 16 of the Arbitration & Conciliation Act as they were covered by the contract between the parties. The Petitioner contended that the decision relied on by the Arbitral Tribunal of the Apex Court was pertaining to the scope of reference under the Arbitration Act, 1940 and so the ratio of the same could not be applied to the present facts and circumstances where an Arbitral Tribunal was appointed under the Arbitration & Conciliation Act, 1996. It was contended that Arbitral Tribunal has jurisdiction to enable itself to consider all the disputes covered by partnership agreement under Clause 15.
10. The notice of the appeal was given to the respondent and Ms. Kamlesh Mahajan had appeared on 15.12.2005 and 27.3.2006, however, no one had appeared on behalf of respondents thereafter, and consequently the matter was heard in their absence.
11. The learned Counsel for the petitioner has relied on National Institute of Banking Studies & Corporation Management (NIBSCOM) v. Vij Construction Ltd. 2005(2) R.A.J. 248 (Delhi) to contend that the power conferred on the Arbitrator under Section 16 are of wide amplitude and it includes the power even to rule on the question as to whether any claim/counter claim can be said to be a dispute within the meaning of the arbitration agreement. Reliance is also placed on , Mulakh Raj v. Shashi Rani and Anr. to contend that even an application for invoking arbitration and appointment of an Arbitrator in terms of Section 11 of the Arbitration Act would be an application for dissolution of the firm for having his share from assets of the firm, as such applications are permitted under Section 69(3) of the Partnership Act.
12. The main controversy in the present facts and circumstances is whether a reference was made to the arbitrator while appointing an Arbitral tribunal when application of the respondent under Section 11 being AA No. 256/2002 was allowed by order dated 18.9.2003 and whether any dispute which, if assigned during the pendency of the Arbitral tribunal is to be referred by the Court again to the Arbitral Tribunal or the Arbitral Tribunal has the jurisdiction to adjudicate the same on being raised by any of the parties.
13. The learned Arbitral Tribunal while dismissing the application of the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 had held as under:
15. The partnership had not been dissolved when reference was made to us nor it is the case of the respondents that the partnership had been dissolved at that time. The parties raised their claims and counterclaims for a settlement of the accounts for running partnership business. The scope of the reference thus is limited to go into and settled the accounts between the three partners of the running partnership business without dissolution of the partnership. The scope of submission for arbitration thus was neither to dissolve the partnership nor to settle the accounts of the dissolved firm. The farm has been dissolved later on by serving notice provided under Section 44 read with clause 13 of the partnership deed during these proceedings. Applicants want to settle the accounts/disputes/claims of the dissolved farm. The is enlarging the scope of arbitration beyond the scope of submission/reference for arbitration made to us in the order dated September 18, 2003. We specifically put to the parties/counsel, if they are willing to make a written reference to us for our adjudication and willing to pay the cost thereof. No agreement could be reached between the parties on it and claimant particularly refused/declined to make reference to us.
Coming to the order of August 25, 2005 of the High Court in OMP 216/2004, that order reads as under:
Counsel appearing for the respondents states that the respondents are complying with the order of the Tribunal and the petitioner has no cause of action for filing the present petition. Counsel for the petitioners seeks to withdraw the prison petition. Accordingly, to the petition is dismissed as withdrawn.
So far as the question as to whether the respondents No. 2 & 3 should be restrained from dissolving the partnership firm, be arbitrator is already seized of the matter and he will deal with the question appropriately.
16. This OMP 216/2004 appears to have been made for implementing our order dated 6.5.2004 by applicants. This is not an order of reference contemplated under Section 11(5) of the act or an agreement between the parties for referring the enlarged disputes to us. The order/observation appears to have been made either on erroneous assumption or on the basis of incorrect facts urged before the Court. This is per incurium. In the absence of valid/proper reference to arbitration under Section 11(5) of the Act, we are not competent to enlarge the scope of the reference made to us. Hence, the enlarged/wider controversy sought to be raised by the applicants can not be entertained. This Application is accordingly dismissed.”
14. To adjudicate the controversy the scope of Section 11 of the Arbitration and Conciliation Act, 1996 has to be considered. The heading of Section 11 is ‘Appointment of arbitrators’. Sub-section (1) contemplates that a person of any nationality may be an arbitrator, unless otherwise agreed to by the parties. The parties under Sub-section (2), subject to Sub-section (6), are free to agree on a procedure for appointing the arbitrator or arbitrators. Failing any agreement as contemplated under Sub section (2), under Sub-Section (3), in an arbitration with three arbitrators, each party could appoint one arbitrator, and the two arbitrators so appointed, could appoint the third arbitrator, who would act as the presiding arbitrator. Where either party or parties fails to nominate their arbitrator or arbitrators or the two nominated arbitrators fails to agree on the presiding arbitrator, under Sub-section (4), the Chief Justice or any person or institution designated by him could make the appointment, in a case where Sub-section (3) has application. In the case of a sole arbitrator, Sub-section (5) provides for the Chief Justice or any person or institution designated by him, appointing an arbitrator on a request being made by one of the parties, on fulfillment of the conditions laid down therein. Then comes Sub-section (6), which is quoted hereunder:
(6) Where, under an appointment procedure agreed upon by the parties,-
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,
a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
15. Consideration of Section 11 of the Arbitration and Conciliation Act, 1996 further shows that Sub-section (10) deals with Chief Justice’s power to make a scheme for dealing with matters entrusted to him by Sub-section (4) or Sub-section (5) or Sub-section (6) of Section 11. Therefore functioning under Section 11(6) of the Act, a Chief Justice or the person or institution designated by him, is bound to decide whether he has jurisdiction, whether there is an arbitration agreement, whether the applicant before him, is a party, whether the conditions for exercise of the power have been fulfillled and if an arbitrator is to be appointed, who is the fit person, in terms of the provision. Section 11(7) makes his decision on the matters entrusted to him, final.
16. Perusal of Sections 8 in order to comprehend the present dispute and its resolution shall also be material. Section 8 contemplates that where there is an arbitration agreement between the parties and one of the parties, ignoring it, files an action before a judicial authority and the other party raises the objection that there is an arbitration clause, the judicial authority has to consider that objection and if the objection is found sustainable to refer the parties to arbitration. The expression used in this Section is ‘shall’.
17. In P. Anand Gajapathi Raju v. P.V. G. Raju (2004) 4 SCC 539 and in Hindustan Petroleum Corporation Ltd. v. Pink City Midway Petroleum the Supreme Court had held that the judicial authority is bound to refer the matter to arbitration once the existence of a valid arbitration clause is established. In P. Anand Gajapathi Raju it was held:
6. In our view, the phrase which is the subject of an arbitration agreement does not, in the context, necessarily require that the agreement must be already in existence before the action is brought in the court. The phrase also connotes an arbitration agreement being brought into existence while the action is pending. Blacks Law Dictionary has defined the word is as follows:
This word, although normally referring to the present, often has a future meaning, but is not synonymous with shall have been. It may have, however, a past signification, as in the sense of has been.
18. Thus, the judicial authority is entitled to, has to and bound to decide the jurisdictional issue raised before it, before making or declining to make a reference. Section 11 only covers another situation. Where one of the parties has refused to act in terms of the arbitration agreement, the other party moves the Chief Justice under Section 11 of the Act to have an arbitrator appointed. When the defendant to an action before a judicial authority raises the plea that there is an arbitration agreement and the subject matter of the claim is covered by the agreement and the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause. In S.B.P. and Co. v. Patel Engineering Ltd. and Anr. (2005) 6 SCC 288, the Apex Court had summed up the scope of Section 11 of the Arbitration And Conciliation Act, 1996 as under:
46. We, therefore, sum up our conclusions as follows:
i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.
ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that court and by the Chief Justice of India to another judge of the Supreme Court.
(iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated, judge would be that of the Chief Justice as conferred by the statute.
(iv) The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate.
(v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.
(viii) There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.
(ix) In a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.
19. In National Institute of Banking Studies & Corporation Management (NIBSCOM) (supra) it was held that once the parties have provided arbitration as the mode of settlement of the disputes/differences under a contract, it should relate to all disputes/differences arising out of or in relation to the said contract. It was held that it is the well settled legal provision that an arbitration agreement is the source of power and authority of the arbitrator and what is not contemplated to be settled through arbitration by the parties cannot be made subject matter of an arbitration. In this matter an agreement was executed between the parties and the respondent was to construct a building and since the disputes arose between the parties, an application under Section 11 of the act was filed for appointment of an arbitrator and claims of the petitioner arising out of and in connection with the contract as also the counterclaims of the other party were referred. Before the Arbitrator additional statement of claim was filed and in reply counter claims were filed. The party against whom counterclaims were moved, filed an application under Section 16 for deletion of counterclaims on the ground that as per the conditions of the contracts disputes had not arisen as the person raising the dispute ought to have given prior notice with regard to the disputes. The arbitrator while deciding the application under Section 16 had held that counterclaims raised earlier would be adjudicated and rest of the counterclaims cannot be entertained and adjudicated. The appeal under Section 37 of the Arbitration and Conciliation Act, 1996 was allowed holding that it would be wholly unjust and improper to tell a party that though the dispute/differences referred by one party are liable to be settled through arbitration, the disputes/differences raised by the other party in relation to the same contract are not capable of settlement through arbitration.
20. A division Bench of this Court in Mulakh Raj v. Shashi Rani and Anr. relying on Smt. Prem Lata and Anr. v. Ishar Dass Chaman Lal and Ors. had held that the application for arbitration invoking arbitration and appointment of an arbitrator in terms of Section 11 would be an application for dissolution of the firm. It was held that from the plain language of Section 69(3) of the Partnership Act, it is clear that three exceptions have been made where the disability under Section 69 will not operate, i.e. the enforcement of any right to sue for the dissolution of a firm; secondly, for account of a dissolved firm or any right; thirdly, power to realize the property of a dissolved firm. These exceptions are carved out to meet such kind of exigencies where a partner of an unregistered firm files certain proceedings for enforcement of any right to sue for the dissolution of the firm or for accounts of a dissolved firm or any proceedings to realize the property of a dissolved firm. The Legislature in its wisdom has created these exceptions because the disability which will operate qua an outsider or third party will not operate with regard to the filing of a suit to enforce a right arising from a contract on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm. Therefore, the application for arbitration invoking arbitration and appointment of an Arbitrator in terms of Section 11 would be an application for dissolution of the firm or for having his share from the assets of the firm. In Smt. Prem Lata (supra) the Supreme Court had held as under:
Para 8. It is seen that with the demise of the partners, ipso facto, the partnership stood dissolved. What the legal representatives of the deceased partner is seeking to enforce is for accounts of a dissolved firm or any right or power to realise the property of the dissolved firm. The right to sue for the dissolution of the firm must, of necessity, be interpreted to mean the right to enforce the arbitration clause for resolution of the disputes relating to dissolved firm or for rendition of accounts or any right or power to realise the property of the dissolved firm….
21. Even where the disputes were referred under Arbitration Act, 1940 whether one or the other partner had not retired from partnership or as to the rights and arising in relation to trademarks or otherwise, still when there was no mutual trust between the parties and the relationship became so strained that it was impossible to carry on the businesses by partners, it was held that it will be open to claim dissolution and such a question could be adjudicated by the Arbitrator. The scope of reference must be looked from the angle as to what was the is spirit behind the reference to the arbitration and whether the idea was to settle all the disputes between the parties and not to confine the same to any one or the other issue arising their under. It was so held by the Supreme Court in V.H. Patel & Company v. Hirubhai Himabhai Patel, which is as under:
9. … In the suit filed before the Court it is no doubt true that one party, Respondent 1, was seeking to establish that he had not retired from the partnership and, therefore, there is justification in the criticism levelled by the learned Counsel for the petitioner that the prayer for dissolution of the firm is inconsistent with such a claim. But that is not the end of the matter. Even if he had not retired pursuant to the terms of the agreement entered into between the parties, it is certainly permissible for him when disputes had arisen between the parties to ask for dissolution of the partnership and when that was not possible by mutual consent a dispute could certainly arise thereto and such a dispute could have been referred to arbitration as provided in clause 11 of the partnership deed. If that was permissible, such a contention could be raised in the suit filed by the parties. Merely because the disputes between the parties have been referred to arbitration, he is not prevented from raising such a question nor is the arbitrator prevented from deciding such a matter. Therefore, agreeing with the view expressed by the High Court, we reject the contention raised on behalf of the petitioner that it was not permissible for the arbitrator to enter upon the question of dissolution of the partnership.
Though the disputes between the parties originated on the basis whether one or the other partner had not retired from partnership or as to the rights arising in relation to trademarks or otherwise, still when there is no mutual trust between the parties and the relationship became so strained that it is impossible to carry on the business as partners, it was certainly open to them to claim dissolution and such a question could be adjudicated. The scope of reference cannot be understood on the actual wording used in the course of the order made by this Court or the memorandum concerned filed before this Court, but it should be looked from the angle as to what was the spirit behind the reference to the arbitration. The idea was to settle all the disputes between the parties and not to confine the same to any one or the other issue arising there under. In that view of the matter, the contention addressed to the contrary is untenable.
22. Functioning under Section 11(6) of the Arbitration and Conciliation Act, 1996, a designate of the Chief Justice in AA 256 of 2002 by order dated 18th September, 2003 has already decided that there is an arbitration agreement and the parties to the present petition, were parties to the arbitration agreement and the conditions for exercise of power had been fulfillled pursuant where to present Arbitral Tribunal was appointed. Therefore, the observation of the learned tribunal while dismissing the application of the petitioner under Section 16 of the Act that in absence of valid/proper reference to arbitration under Section 11(5) of the Act, the tribunal cannot deal with the dispute regarding dissolution is not correct. The power under Section 11(5) of the act has already been exercised and the scheme of the act as discussed here in above does not contemplate another application under Section 11(6) of the act in the present facts and circumstances. While deciding the application of the petitioner under Section 16 of the act, the Arbitral tribunal had to decide whether the dispute regarding dissolution of the firm is covered under the arbitration agreement or not. It seems that it has not been disputed that the dissolution of the partnership is also covered by the Arbitration agreement. What has been held that this dispute was not raised by the petitioner and it was not the dispute when the Arbitral Tribunal was constituted by the Court while deciding the application of the respondent under Section 11(6) of the Act. If the Arbitral Tribunal constituted by the parties without having recourse to Section 11(6) has jurisdiction to decide all matters as contemplated by Section 16 of the Act as has been held in S.B.P and Co.(supra) a fortiori, an Arbitration Tribunal constituted by the Court under Section 11(6) of the Act will also have jurisdiction to decide all the disputes provided the disputes are within the scope of arbitration agreement. Whether the disputes are within the scope of the Arbitration Agreement can be decided by the Arbitral Tribunal under Section 16 of the Act.
23. The observation of the Arbitral Tribunal that the dispute about dissolution of the firm was not before the designate of the Chief Justice when the petition under Section 11(6) was decided is also not correct as an application for arbitration invoking arbitration and appointment of an arbitrator in terms of Section 11 would be an application for dissolution of the firm as was held by the Division Bench of this Court in Mulkh Raj (supra). A partnership which is at will which is not disputed by the parties, an application for arbitration invoking arbitration and appointment of an Arbitrator in terms of Section 11 would be an application for dissolution of the firm or for having share by the partners from the assets of the firm. When there is no mutual trust between the parties and the relationship has become so strained that it is impossible to carry on the businesses by the partners, it will be open to claim dissolution and such a question could be adjudicated by the Arbitrator. The scope of reference must be looked from the angle as to what was the is spirit behind the reference to the arbitration and whether the idea was to settle all the disputes between the parties and not to confine the same to any one or the other issue arising their under as was held by the Apex Court in V.H. Patel & Company.
24. Once the valid arbitration clause had been established, the Arbitral Tribunal was bound to consider whether the dissolution of the firm and its accounts were the disputes within the scope of arbitration clause/agreement. No fresh reference is contemplated in the scheme of provisions under Arbitration and Conciliation Act, 1996. Once the parties have provided arbitration as mode of settlement of the disputes/differences, it should relate to all disputes/differences arising out of or in relations to the partnership. The Arbitral Tribunal has thus committed an error in holding that a separate reference is required for the Arbitral Tribunal to consider the dispute about the dissolution of the partnership firm and for rendition of its accounts. Even without the parties specifically agreeing to adjudication of these disputes by the parties, the Arbitral Tribunal will have jurisdiction as these disputes are within the scope of Arbitration agreement/clause.
25. The Rajasthan State Mines & Minerals Ltd. v. Eastern Engg. Enterprises, relied on by the Arbitral Tribunal is clearly and apparently distinguishable. It was held in that case that it is settled law that the arbitrator is the creature of the contract between the parties and hence if he ignores the specific terms of the contract, it would be a question of jurisdictional error which could be corrected by the court and for that limited purpose agreement is required to be considered. For deciding whether the arbitrator has exceeded his jurisdiction reference to the terms of the contract is a must. Arbitration clause 74 was found to be very widely worded, therefore, the dispute was required to be referred to the arbitrator. But it was apparent that he had exceeded his jurisdiction by ignoring the specific stipulations in the agreement which prohibited entertaining of the claims made by the contractor. In the letter dated 5-2-1985 appointing the sole arbitrator, it had been specifically mentioned that agreement dated 14-5-1981 was executed by and between the parties and that the contractor has raised the claims as mentioned in the letter dated 7-9-1983 which was denied by the Company and at the request of the contractor, the sole arbitrator was appointed to adjudicate the claims made by the contractor vide his letter dated 7-9-1983. This reference to the arbitrator also clearly provided that reference was with regard to the dispute arising between the parties on the basis of the agreement dated 14-5-1981. It nowhere indicates that the arbitrator was empowered to adjudicate any other claims beyond the agreement between the parties. In these circumstances, it was held that the Arbitrator exceeded his jurisdiction which is quite different from the facts of the present case. Similarly the other case relied on by the Arbitral Tribunal 1991 (2) Arb. L.R 180, Associated Engineering Company v. Government of Andhra Pradesh and Anr. is also distinguishable and on the ratio of the said case, it can not be inferred that the Arbitral Tribunal can not adjudicate the dispute between the parties regarding dissolution of the partnership firm and rendition of its accounts.
26. For the forgoing reason, the inevitable inference is that the Arbitral Tribunal has jurisdiction to adjudicate the disputes between the parties about the dissolution of the partnership firm and rendition of its accounts as these disputes are within the scope of Arbitration agreement/clause between the parties and no fresh reference as was contemplated under the Arbitration Act, 1940 was required in the present case. Therefore, the Arbitral Tribunal shall be competent to decide the disputes between the parties regarding the dissolution of the firm and rendition of accounts between the parties and since the parties did not agree to the payment of fees and expenses, the Arbitral Tribunal shall be entitled to fix the fees and recover the expenses as will be incurred by it.
27. Therefore, the appeal is allowed and the impugned order dated 11th August, 2005 passed by the Arbitral Tribunal is set aside and it is directed that the Arbitral Tribunal shall adjudicate the disputes between the parties about the dissolution of the partnership firm and rendition of its accounts in accordance with law. The Arbitral Tribunal shall also be entitled to such fees as may be deemed appropriate by the Arbitral Tribunal and such expenses as will be incurred by the Arbitral Tribunal in the facts and circumstances, which will be payable by the parties in equal share in the first instance. The liability of fees and expenses will ultimately be decided by the Arbitral Tribunal. The appeal is therefore, allowed in terms hereof and the parties are left to bear their own expenses.