Barindra Krishna Deb vs Bani Sankar Sarkar and Another

Bachawat, J.—This is an application by Barindra Krishna Deb for an order that an award made by the Arbitrator herein be remitted to the Arbitrator for re-consideration and for other reliefs.

On the 2nd December, 1949, the applicant Barindra Krishna Deb, Bani Sankar Sarkar and Sachindra Nath Bose entered into an agreement of reference of their disputes to the arbitration of one Mr. Sanat Kumar De, Solicitor. It was stated in the agreement that the parties carried on business in co-partnership under the name and style of Woodcraft & Co. and that they had incorporated a private limited company of the name of Vineer & Woodcraft, Ltd. and it also organised the Institute of Electronic Technology and a radio workshop. It was further stated in the agreement that disputes and differences had arisen between the parties regarding their respective dealings with the said business and concerns and with regard to accounts thereof. The parties agreed that the arbitrator should take an account of all the respective dealings of the parties in relation to the said several businesses and concerns from the dates of their respective commencement until 30th June, 1949, and shall decide, what amount, if any, is payable by one party to the other.

By the agreement the Arbitrator was empowered to appoint an Accountant or Auditor for the purpose of making up the account. The parties were to produce before the Arbitrator all books of accounts and papers. The Arbitrator was empowered to assess the value of the goodwill and to direct dissolution of the partnership concerns and/or voluntary winding up of the limited company.

By clause (8) of the agreement, it was provided that the Arbitrator was to make his award within one month from the date of the agreement, but if the Arbitration proceedings could not be completed within that period, the Arbitrator was to be at liberty to extend the time of making his award by endorsement on the back of this agreement and shall give notice thereof to the parties.

It is to be observed that the latter portion of clause 8 of the arbitration agreement cannot be given effect to, in view of Section 28 of the Arbitration Act whereby any provision in the arbitration agreement under which the arbitrator may, except with the consent of parties to the agreement, enlarge the time for making the award is void and is of no effect.

On the 6th of December, 1949, the Arbitrator served notice upon all the parties for a meeting of arbitration. On the 7th December, 1949, the first meeting was held. At that meeting, Bani Sankar Sarkar delivered several papers to the Arbitrator and he promised to deliver other papers which were in his possession later on. The applicant stated that he had no documents and papers and books of account at present in his possession and that all books and papers had been taken away by Sachindra Nath Bose. Sachindra Nath Bose stated that he had no books or papers then with him and that whatever books and papers he had from the applicant were delivered by him to Bani Sankar Sarkar.

On the 11th December, 1949, there was another meeting. In that meeting, Sarkar handed over all the books and papers that he had with him to the Arbitrator. It seems there was some discussion about the accounts and the applicant stated that there was no systematic account books of the business. On the 12th December, 1949, there was a third meeting before the Arbitrator.

The last meting was held by the Arbitrator on the 28th December, 1949. In that meeting Sachindra Nath Bose did not attend. The applicant raised the question of the accounts of Woodcraft & Co. and Vineer & Woodcraft Ltd. He stated that he could not show to the Arbitrator his receipts and vouchers to assess the liability of those concerns. The arbitrator seems to have stated that he could not go into the liabilities in the absence of any papers and vouchers and receipts before him. The applicant pointed out that the aspects of the partnership firm cannot be ascertained at that stage without looking into the books of account. Sarkar wanted the Arbitrator to return the books and papers and the Arbitrator gave a direction for the return of all the books and papers to the parties who had produced them before him on the ground that there was no time left for him to go into the accounts of the respective liabilities of the parties to each other with regard to the partnership firm of Woodcraft & Co. Both the applicants Mr. Deb and Mr. Sarkar agreed that it would take time to go into the accounts of Vineer Woodcraft Ltd. The Arbitrator stated that if he was unable to extend the time without the consent of all the parties, he would make the award within the 2nd January, 1950, but that if he was able to do so without the consent of the parties, he would enlarge the time to make his award for another month from the 2nd of January, 1950.

No further meeting was held by the Arbitrator and on the 31st December, 1949, he made an award. The relevant portion of the award is set out below: -

�1. I award and direct that the said Sachindra Nath Bose and Barindra Krishna Deb shall jointly and severally pay to the said Bani Sankar Sarkar the sum of Rs.25,970 (rupees twenty-five thousand nine hundred and seventy) only within 30 days from the date of this award.

I award and direct that all goods and stock-in-trade being goods purchased from Government Disposals that are in the possession of the said Sachindra Nath Bose and/or Barindra Krishna Deb and also all the goods to which they are or any of them is entitled or may become entitled belong to them and the said Bani Sankar Sarkar will have no right, title or interest over the said goods nor he is liable to pay any amount in relation to the said goods.�

On the 8th of March, 1950, notice of filing the award was served upon the parties and on the 4th of April, 1950, the present notice of motion was taken out and was noted as made before the Court on that day.

Mr. Barman appearing in support of this application urged before me that the award is void on the ground that it directs Sachindra Nath Bose and Barindra Krishna Deb jointly and severally to pay to Bani Sankar Sakar a certain sum of money without adjudicating upon and apportioning the respective liabilities inter between Sachindra Nath Bose and Barindra Krishna Deb. He also wanted to urge that the award was bad on the ground that all the goods and stock-in-trade were directed by the award to belong to Sachindra Nath Bose and Barindra Krishna Deb without stating in what proportion Sachindra Nath Bose and Barindra Krishna Deb were entitled to receive.

I decline to go into these points because these points are not specifically raised in the petition. No doubt there are general grounds of complaint in the petition to the effect that the Arbitrator omitted to decide what the parties submitted to him and that the award was not a final decision in all matters requiring the Arbitrator''s determination. In my judgment, these complaints are too general and unless the grounds of complaint are pleaded with sufficient particularity, I ought not to allow the applicant to argue it. This point is well-settled in England. Amongst other cases reference may be made to the case of Staples v. Hay, (1943) Law Journal Quuen''s Bench, Page 60 and the case of Boodle v. Davies, (1835) 3 A & E 200; 4 N&M 788. The principle of these cases was, followed in an unreported judgment of the Appeal Court in Appeal No. 2 of 1949, Mukhram Lachminarain v. Khusiram Benarsilal.

For ought I know, there was no dispute between the applicant and Sachindra Nath Bose. It may very well be that they do not desire to apportion their respective rights and liabilities inter se as regards the property to be allotted to them. The point pressed by Mr. Barman is not a pure question of law. It is a mixed question of law and fact. If such point was raised, it was open to the Respondent to point out that there was no dispute inter se as between the applicant and Sachindra Nath Bose and that in fact they had welcomed an award in the form in which it has been actually made. There may be other defences and I cannot speculate upon them. The result is that I have not allowed Mr. Barman to agitate before me the points which I have mentioned here.

The only other point urged by Mr. Barman before me is that the award has left undetermined the question of the accounts and dispute between the parties with regard to Woodcraft & Co. and Vineer & Woodcraft Co. Ltd. These account s and disputes were expressly referred to arbitration under the agreement dated the 2nd December, 1949, and as they have not been determined, the award ought to be remitted to the Arbitrator for re-consideration.

I have given my anxious consideration to this point. It seems to be a border line case. It appears that the meeting of the 28th of December, 1949, was the crucial meeting. Reading the minutes of that meeting as a whole, I have formed the impression that the Arbitrator has declined to go into the question of the disputes between the parties and the accounts of Woodcraft & Co. and Vineer & Woodcraft Co. Ltd. It does appear to me that the Arbitrator was not prepared to go on with the arbitration with regard to the short time at his disposal. The applicant did point out that on that day he could not show to the Arbitrator his receipts and vouchers in support of his contentions. In that state of affairs, the Arbitrator, if he thought that the applicant was obstructive, might have insisted that he would go on with the arbitration and he would look into the accounts of the two concerns and would decide the disputes on the materials then available before him. But it does appear that the Arbitrator expressly stated that he could not go into the liabilities of the two concerns in the absence of the papers and vouchers mentioned by the applicant. The Arbitrator expressly states that there is no time left for him to go into the accounts of the respective liabilities of the parties with regard to the firm of Woodcraft & Co. With regard to the other concern, namely, Vineer Woodcraft Co. Ltd., both the applicant and Mr. Sarkar state that they will take time to go into those accounts. It seems the Arbitrator was inclined to go into these questions if he could extend the time without the consent of the parties. He expressly stated that he would extend the time if he could for another month. His obvious intention seems to have been to extend the time for the purpose of going into some outstanding matters.

Obviously, the accounts of the partnership firm of Woodcrafts & Co. Ltd., were outstanding. Indeed, the Arbitrator returned the papers and books in respect of those concerns on the footing that for want of time, he would not got into the account of those two concerns.

It is well-settled that the award must be a final decision on all matters requiring his determination and that is the duty of the Arbitrator to decide all the matters referred to him. If he does not decide all the disputes, he commits a breach of duty. The matter is discussed in detail in Russel on Arbitration, 14th Edition at page 166. The law is now codified in our country in Section 16 of the Indian Arbitration Act. The relevant portion of the section reads as follows: -

The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for re-consideration upon such terms as it thinks fit - where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; . . . .

If the award has left undetermined any of the matters referred to arbitration, it is the duty of the Court in a proper case to remit the award or the matters so left undetermined to the Arbitrator for reconsideration.

Mr. Dutt opposing this application submitted that it was due to the obstructive attitude of the applicant that the Arbitrator could go into the accounts of these concerns. I cannot see that there has been any obstruction on the month. It is true that the question of the accounts of these two concerns were not specifically raised at the earlier meetings the accounts were before the Arbitrator and the Arbitrator could, if he so wanted, appoint an accountant. Besides, the question was specifically raised at the last meeting. If the time was too short and if the Arbitrator had come to the conclusion that the applicant was obstructive, it was open to the Arbitrator to give a verdict on the materials as it stood before him, but the Arbitrator does not seek to do so. As I read the minutes of the last meeting, he declines to go into the matter and does not adjudicate upon the accounts and disputes between the parties with regard to these two concerns.

I, therefore, will remit the matters which have been left undetermined to the Arbitrator for his reconsideration. Mr. Barman urged that the entire award should be remitted to the Arbitrator for his reconsideration. I, however, do not see any reason why the entire award should be remitted to him. I, therefore, order that the disputes and differences between the parties to the agreement dated the 2nd December, 1949, which is an annexure to the affidavit of Barindra Krishna Deb, affirmed on the 29th of April, 1950, regarding their respective dealings with the business and concerns of Woodcraft & Co. and Vineer & Woodcraft Co. Ltd., and with regard to the accounts thereof be remitted to the Arbitrator for re-consideration. The Arbitrator will make his decision and award and submit it to this Court within nine weeks from today. The Arbitrator will be at liberty to act on a copy of this order countersigned by my officer being served upon him. The order will be drawn up expeditiously. The applicant''s attorney undertakes to put in requisition for the drawing up of the order immediately. Costs reserved.

Solicitors : A. Das Gupta for the Petitioner

J. C. Sinha for the Respondent