M.I. Shahdad vs Mohd. Abdullab Mir and Others

J.N. Bhat, J.—A partnership was entered into between Wazir Chand S/o Lalchand and Hariah Chancier S/o Wazir Chand residents of

New Delhi, who were collectively described in the partnership deed as parly No. 1, and Mohd. Abdullah Mir S/o Abdul Razak, Ghulam Mohd

and Ghulam Rasul sons of Mohd. Abdullah Mir Respondents 1, 2 and 3 who were collect? Timely described as; party No. 2. on 4th February,

1962. The, partnership was registered on 10-2-1962 before the Sub-Registrar, Srina-gar. This partnership had to be carried on under the firm

name Wazir Chand Harish Chander These two parties were to invest money in a certain proportion for carrying on the business of the newly

constituted firm. The partnership was for a period of five years from 1-4-1962. Clause 11 of the partnership deed provided that if there was any

dispute about' the running of the business between the par-' ties, the same would be got decided by means of arbitration The first party had to

appoint an arbitrator. Similarly the second party had to appoint its own arbitrator. 'The arbitrators between themselves had the power to appoint a

Sarpanch or an umpire and the decision of the arbitrators so' appointed would be binding, on the parties. According to party No. 2 who;-are

Respondents 1 to 3 before me the other party to the contract namely Wazir Chand and Harish Chander did not perform the obligations that

devolved on them by means of this partnership deed. Therefore they' took' recourse to Clause No. 11 of the partnership deed. On 28 1964 Mr T.

Hussain, Advocate, on behalf of Mr. Mohd. Abdullah, Ghulam Mohd. and Ghulam Rasul the first three Respondents sent a number of notices to

Harish Chander, Respondent 7 in these proceedings, for settlement if accounts and for nominating an arbitrator under Clause 11 of the partnership

deed and informing him that his clients had chosen Mr. M.I. Shahdad, pleader of the Saddar Court at Srinagar as their arbitrator. These notices

were not served on Mr. Harish Chancier. Then on 20th June another notice was sent to Wazir Chand Harish Chander by the same Advocate on

behalf of the same clients where in he stated that he had received no reply of the concurrence of the addressee to the appointment of M.I. Shahdad

as arbitrator on behalf of Party No. 2 and they had not nominated their arbitrator It was further conveyed to Wazir Chand Harish Chander that M.

I Shahdad ipso facto became the sole arbitrator. It appears that Mohd. Abdullah Mir Respondent 1 presented an application to Mr. Shahdad,

arbitrator to get notice served upon non applicants through court u/s 43 of the Arbitration Act fixing the valuation of the application for purposes of

court fee and jurisdiction at Rs. 25. This application was presented before the First Addl. Munsiff, Sri-bagar on 27 01964, who registered it and

issued notice to the non-applicants mentioned in the application. The notices were not served upon them except one which was served upon Romo

Devi, Respondent 4, widow of Wa-zir Chand. on 17-9-1964. According to the report of the process server notice was shown to this lady who

stated that Harish Chander had gone to Srinagar; he was cognizant of those proceedings and would appear in the court But nobody appeared on

the date fixed, 1-10-1964 The matter came up before the First Addl Munsiff who on 20-11-1964 ordered that the Respondents non-applicants in

the notice had not appeared despite service by registered AD. Ex prate proceedings were taken against them The arbitrator was directed to take

action according to law under the provisions of the Arbitration Act The arbitrator continued the proceedings ex parted against Respondents 4 to 7

He has however, maintained no record of minutes of the proceedings taken by him.

It is the case of the Petitioner Mr. Shahdad, the arbitrator as well as Respondents 1 to 3 that the arbitrator entered upon the reference,

proceeded ex parte against Respondent 4 to 7 and ultimately gave his award on 31-12-1964 Subsequently he put in an application on 16-3-1965

for making this award a rule of the court The award was filed in this coin; on 24-3-1965 Notices were issued to the Respondents On 18-6-1965

Mr. T. Hussain appeared for Respondent 3 and Mr. Nanak Chand for Respondent 7. The other Respondents were not served later on Miss

Pumi, Respondent 5 was served through substituted service and Mr. Sunder Lal appeared for her on 29-10-1905. The Petitioner prays that a

decree be pasted in term of the award. Respondents 1 to 3 also support that requests of the Petitioner It is Respondents 4 to 7 who oppose the

entire arbitration proceedings and the decree sought to be passed.

The arbitrator by means of his award has granted a decree for Rs. 35,000 in favour of the first party i.e. Respondents 1 to 3 against

Respondents 4 to 7. As regards interest the matter has been left to the court and no opinion has been expressed, as in the opinion of arbitrator

Section 29 of the Arbitration Act (hereinafter to be referred to as the Act) was a bar to his making any order about interest.

It has further to be mentioned before we take the objections of Respondents 4 to 7 into consideration that before the arbitration was started, the

same gentleman Mr. Mohd. Abdullah had, started on 22-4-1963 an application u/s 20 of the Act before the A.D.M. Sub-Judge, Srinagar, calling

upon the other party for filing the arbitration agreement and for naming the arbitrator by each side to arbitration, and the matter being entrusted to

such arbitrators and in the case of difference between the appointments of an umpire. In this application the jurisdictional value was fixed at Rs.

6,000. These proceedings went on for quite a long time. Want of jurisdiction on the part of the court was taken as an objection by the other side.

The Sub-Judge A.D M. by his order dated 24 4-1963 dismissed the application on 28-4 1965 for want of prosecution and Rs. 100 were

awarded as costs against the Petitioner, i.e., Mohd. Abdullah, by the Sub-Judge.

In this Court Mr. Nanak Chand, who ultimately appeared for Respondents 4, 6 and 7, filed an application Under Sections 30 and 33 of the

Arbitration Act on 27-9-1966 Mr. Sunder Lal, counsel for Mst. Pumi, filed the same application on 29-10-1966.

In the applications Under Sections 30 and 33 of the Act a long list of grounds has been taken by the learned Counsel. 26 grounds have been

taken by Mr. Nanak Chand and 20 grounds by Mr. Sunder Lai for setting aside the arbitration proceedings and the award. An equally long

rejoinder has been put in which consists of 20 paragraphs by Respondents 1 to 3.

Elaborate arguments were addressed by the learned Counsel for the parties. To start with I might even mention that some arguments which did

not arise on the facts of this case were addressed presumably on some misunderstanding about certain facts. Such arguments will not be discussed

in detail, but a passing reference will be made to them in the course of this order.

I need not discuss the merits of that award although quite a lot of argument was addressed on the merits also and on my powers to adjudicate

upon merits. It was brought to, my notice that I did not sit as a court of appeal and any finding of fact arrived at by the arbitrator would not be

open to question in these proceedings before me. On the other hand it was pointed out that the conclusion drawn by the learned arbitrator were

not at all warranted by the facts and he circumstances of the case. The arbitrator had not cared to go through the partnership deed and he had

exceeded his jurisdiction in granting relief’s which were not claimed and in refusing relief’s which should have been granted. I need not, as

I said, cider into any discussion on this part of the case, nor do I express any opinion one any or the other on such matters in my opinion the award

has to be set aside on purely Togas grounds.

It has been objected by Mr. Bhasin vehemently that the application u/s 30 pal in by Mr. N. Chand is clear time barred. Mr. N. Chand appeared

for the first time on 18th June. 1965, on behalf of Respondent 7 Later on he took adjournment after adjourn-.ment and it was only on 27-9-19G5

that he filed his objections to the award According to Mr. Bhasin under Article 158 of the Limitation Act such objections can be filed within 30

days from the date of service of the notice of the filing of the award. According to Mr Bhasin Lala N Chand and his clients should be presumed to

have knowledge of the filing of the award at least from 18(5-1965. Objections have been filed on 27-9-1965 which is obviously more than about

100 days from their knowledge. Mr. N. Chand however, argued that limitation will start against his client from the date of the service of notice

about the filing of the award. In other States forms are prescribed for issuing notice under various Sections of the Arbitration Act To my know

ledge no such rules have been framed in the State. In the absence of any particular form f notice, we have to put a reasonable construction on the

words of the 3rd column of schedule 1 of the Limitation Act under Article 158. According to Mr. N. Chand no notice as contemplated by law of

the filing of the award was given to his client. He has relied on an authority Deep Narain Singh and Others Vs. Mt. Dhaneshwari and Others, for

this purpose. This authority says that when required notice under Article 158 of the Act is not served the (pies lion of limitation does not at all arise.

This authority however at the same time lays down that if an objection is taken to the invalidity of the reference, such an objection is not covered

by Section 30 or by Section 33 and there is no limitation provided for an application u/s 33.

In AIR 1930 Lah 228 it has been held that it is incumbent on the court to give a notice to the parties under Clause (10) and the fact that they

might have received knowledge of the award having been filed in court aliened does not amount to such a notice, An earlier authority. (1898) ILR

20 All 474 was followed in that case.

Similarly in AIR 1947 Sind 145 it has been held that knowledge of the filing of an award acquired in a way other than that laid down by

Section 14 cannot be deemed to be proper service of a notice of the award and the statutory provisions relating to service of a police of the filing

of the award upon a party cannot be dispensed with because it has been established that a party had notice of the filing of the award in some way

or another, although not in accordance with Section 14.

But these authorities have no significance now in view of the Supreme Court decision in Nilkantha Shidramappa Ningashetti Vs. Kashinath

Somanna Ningashetti and Others, . In that case their Lordships observed:

According ""to Article 158 of the Limitation Act, the period of limitation for application to set aside an award under the Arbitration Act. 1940.

Begins to tun from the date of service of the notice of the filing of the award."" There is no ground to construe the expression 'date of service of

notice only a notice in writing served in a formal manner When the legislature used the word 'notice' it must be presumed ' to have borne in mind

that it means not only a formal intimation but also an informal one. Similarly it must be deemed to have in mind the fact that service of a notice

would include constructive or informal notice.

In this case it was further held that the notice which the court is to give u/s 14(2) to the parties of the filing of the award need not be a notice in

writing and the notice can be given orally.

Therefore in my opinion the objections filed by Mr. N. Chand shall have to be ruled out as barred by limitation so far as Section 30 is

concerned His application however is both Under Sections 30 and 33. Section 30 mentions the grounds on which an award can be set aside.

Section 33 comes into operation when any person desires lo challenge the existence or the validity of the arbitration agreement or an award or to

have the effect of either determined which includes the validity of a reference also. For the latter section, as already stated, there is no limitation

provided.

Mr. Nanak Chand represents Respondents 4. 6 and 7 Respondent 5 is represented by Mr Sunder Lal, She was served about the filing of the

award by means of substituted service which appeared in October, 1965. She made an application on 25-10-1965. It is conceded by Mr. Bhasin

that this application is within 30 days of the notice, whether we construe it a notice in writing or an oral notice. Therefore these objections will have

to be considered.

The award is joint and in severable. If it stands, it will stand against all and if it is quashed or set aside it has to be set aside in toot and cannot

be up held in part and set aside in part If the objections of Mst. Pumi, Respondent 5 that the award cannot be upheld are to prevail, the whole

award has to be struck down I shall now examine the factual and legal aspects which are relevant for disposal of these objections.

I have bestowed my careful attention to the facts of the case and examined the re-record of this case myself With the assistance of my reader

the following facts have been discovered by me, although as I remarked earlier the learned Counsel for the parties addressed some arguments on

certain assumed fads which were not borne out from au examination of the record.

I have referred to Clause 11 of the Partnership Deed. It appears that the partnership did not function properly. Each party has been leveling

accusations of misconduct and non fulfillment of obligations against the other. Whatever the true stale of affairs may be, the result was that party

No, 2, i.e., Respondents 1 to 3 were compelled to get notice issued to the other party for rendition of accounts, invoking of d. ! 1 of the

partnership deed and nomination of an arbitrator and information of the appointment of Mr. Shahdad as the arbitrator nominated by Respondent 1

to 3. These proceedings started on 28-3-1964. Before this the Respondent 1 had moved the Sub-Judge A.D.M. u/s 20 of the Act for getting the

arbitration agreement filed in court, the arbitrator nominated by cither ride and an umpire, If need he appointed and the proceedings taken under

the Act That application was rejected for non-prosecution on 28-4-1965. In that application the tentative valuation was fixed at Rs. 5,000 by Mr.

Abdullah Mir. The partnership agreement has been entered into by five persons who group themselves into two parties: Wazir Chand and his son

Harish Chander as party No. 1 and Mohd. Abdullah and his two sons Ghulani Mohd. and Ghulam Rasul as party No. 2. The notice for

appointment of Mr. Shahdad and asking the other party in appoint its arbitrator was sent to Mr. Harisli Chander alone. The postal receipts that

lave been produced are with respect to the notice issued to Harish Chander alone. It is important to note here that on 28-3-1964 Wazir Chand

was dead. The date of his death is not very clear on the record but from an application page 25 of the record of the Sub-Judge A.D.M. there is an

application dated 27th March 1964 by Mohd. Abdullah Mir which shows that Wazir Chand is dead and his legal representatives shown as

Respondents 4 to 7 he brought on record. This means that Wazir ('hand was dead before 28-3-1964. Although there is a note at the fool of the

notice that a copy of the above has been forwarded to Homo Devi, Miss Pumi and Miss Prabha vet no such notice seems to have been actually

sent There is no record or any postal receipt to indicate that these legal representatives of Wazir Chand were informed about the contents of the

notice. Nor is it alleged that any such notice was given to him. They were for the first time shown as parties before the First Addl. Munsiff when the

application before that court was presented on 27-6-1964. So it is clear that Respondents 4 to 6 were not at all informed about the existence of

Clause 11 of the partnership deed and they were never asked appoint an arbitrator of theirs in terms clause These Respondents were the legal

representatives of Wazir Chand and notice had to be given to them in terms of Section 9 Even Harish Chander's acknowledgment of this notice of

28th March. 1964 is not on the record. But one thing is very clear that these three Respondents who had stepped into those shoes of their

predecessor Wazir Chand were not given any notice as required u/s 9 Even assuming that copies of notices were sent to Respondents 4, 6 and 6

also, it would only indicate that Harish Chander had been given such a notice. The copy would not indicate that the notices were given to the

Respondents in their person or as legal Representatives of Wazir Chand.

Next we come to Section 9(b). This Sub-section lays down:

If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for 15 clear days after the service by the other

parley of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has

appointed an arbitrator may appoint that arbitrator to act at sole arbitrator in the reference, and his award shall be binding on both parties as if he

had been appointed by consent.

The notice of 20th June, 1964, is addressed to Wazir. Chand Harish Kumar. Wazir Chand was already dead. The name Wazir Chand Harish

Kumar was the name of the firm which was constituted under the partnership dated 4-2-1962. Apart from the firm name Wazir Chand Harish

Kumar the Wazir Chand and Harish Kumar did not constitute a firm. They enter-ed the partnership in their individual names.' From the address on

the notice itself it would appear that it had been given to Harish Kumar only The other legal representatives of Wazir' Chand, namely. Mt. Bomo

Devi, Mst Pumi and Miss Prabha were not at all informed that the other parley wanted to take advantage of Section 9(b) of the Act The notice

however amongst other things recites:

....My client having appointed Mohd. Ibrahim Shahdad, Esq.. pleader, Sadar Court, and having intimated you about the said appointment, it is

regretted that you have not informed whether you concur in the said appointment. You have also not appointed any arbitrator of your choice, It is

presumed that you agree to the appointment of Mr. Mohd. Ibrahim Shahdad as the sole arbitrator. The legal position is clear on the point that you

having failed to appoint an arbitrator of your choice or to dispute the appointment made by my client within 15 clear days, after the service of the

prior notice u/s 9, Arbitration Act, the result is that Mr. Ibrahim Shahdad ipso facto becomes the sole arbitrator.

Ali that this notice says is that Mr. Shahdad ipso facto became the sole arbitrator.

In an English case, Druinmond v. Hamer. (1942) 1 KB 352, Atkinson J said;

There is a further difficulty in the way of the landlord: he never did appoint Mr. Woolley as the sole arbitrator. The terms of Section 6(b) of the

Arbitration Act are clear, and under it the party who desire his arbitrator to act as the sole arbitrator, is required so to appoint him, and he can only

do this after the other party has failed to appoint his arbitrator for seven clear days after the service of the notice upon him requiring him to do so.

Similarly in AIR 1948 EP 11, it was held that an arbitrator appointed by a party cannot arrogate to himself the functions of sole arbitrator on

failure of the other side to nominate. its arbitrator within time and had no parisdiclion to proceed with the reference.

Under this Sub-section on the failure of the other party to nominate its arbitrator, the first party has to nominate its arbitrator is the solo

arbitrator in the arbitration proceeding. In this case the Respondents 1 to 3 have rot communicated to the other parly that Mr. Shahdad was

appointed to act as the sole arbitrator in the reference. Recourse may be taken the words that ""Mr. Shahdad will ipso facto become the sole

arbitrator"" would be tantamount to appointing him as the sole arbitrator This is not the language that has to versed is terms of Section 9(b) of the

Act. It is set- tied law that arbitration agreements are to be construed strictly and any defect in the appointment of an arbitrator would vitiate the

entire proceedings. See AIR 1930 Sind 202. What ever interpretation we might give to this notice in the light of Section 9(b) of the Arbitration

Act, in is manifestly clear that Mr. Shahdad has not been appointed as the sole arbitrator in accordance with law and no notice of his appointment

as such has been given to Respondents 4 to 6 who are sought to be bound by the; award. Therefore the entire reference to arbitration would be

illegal and Mr. Shahdad would not be a properly appointed arbitrator in the eye of law and therefore any proceedings taken by him and his award

would be a nullity.

Even if we do not invoke the provisions of Section 30 this case would be definitely covered by Section 33 of the Act and although the

application of Mr. Nanak Chand on behalf of Respondents 1. 6 and 7 u/s 30 would be time-barred for purposes of Section 33 there is no

limitation and his objections to that extent can be looked into. Besides as already slated. the entire award has to be set aside.

Next I take up some arguments advanced in this case. The next question which was sought to be debated before me was the jurisdiction of the

First Addl Munsiff or for that matter of the Sub-Judge A DM. regarding the arbitration. Mr. Rhasin has argued that the scope of 'Sections 20 and

43 of the Act is different There can be no quarrel with this proposition of law Section 20 deals with the fitting of the arbitration agreements and

getting proceedings taken after the arbitration agreement is filed. Section 48 relates to the power of the Court lo issue process for appearance be

fore the arbitrator. Section 43 no doubt is containinged in the miscellaneous chapter of the Act and is sole purpose is to ensure service or process

upon parties and witnesses whom the arbitrator or the umpire desires to examine. This Section lays down:

The court shall issue the same processes to the Parties and witnesses whom the arbitrator or umpire desires to examine as the court may issue in

suits tried before it.

(2) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence or guilty of any

contempt to the arbitrator or umpire during the investigation of the reference, shall be subject to the like disadvantages, penalties and punishments

by order of the court on the representation of the arbitrator or umpire as they would incur for the like offences in suits tried before the court.

But however both Sections 20 and 43 use the words 'the court' In the Act, the word court has been defined u/s 2(c) as a civil court having

jurisdiction to decide the questions forming the subject matter of the reference, as if the same had been the subject matter-of a suit, etc Therefore

the word 'the court' has to be interpreted in a technical sense throughout the Act It can mean only a court which has civil jurisdiction over the

subject matter of the reference The subject matter of the reference in this case was a partnership which had to have as its investment of Rs.

80,000. This sum was admittedly above Rs. 20.000. So the word 'court' as applicable to any matter connected with the dispute would be the High

Court and no court inferior lo the High Court will have jurisdiction to entertain either an application u/s 20 or Section 43 of the Act. Section 43

uses the words 'the court which means court as defined under the Act. If it were the intention of the legislature to get process served through any

court the words should have been 'a court.' and not the court. In that case a court within whose jurisdiction the persons lo be summoned live or

exercising some similar jurisdiction would he indicated.

The arbitrator has not himself summoned the parties to the reference. He has at once moved the First Addl Munsiff for ser vice of summons

and the First Addl Munsiff by his order dated 30-11 1901 has proceeded ex prate against Respondents 4 lo 7 There after the arbitrator continued

the proceedings against the Respondents 4 to 7. I do not find any power under the Act given to a court to order an ex parte proceeding against

any party to a reference when the proceedings are before the arbitrator. The court has to be made simply an instrument for effecting service. The

discretion whether the arbitrator should proceed ex parte or not cannot be enjoyed by a court when the proceedings are before the arbitrator the

arbitrator is seized of the whole matter and it is up to him. after applying his mind to the facts of a particular case, to decide whether he should

proceed ex parte or not He has not to act as an agent of the court and order ex part proceedings against a party under the provision of Section 43.

Here the arbitrator has not at all applied his mind whether the service was sufficient and whether there was any material for proceeding ex

parte against Respondents 4 to 7. That also shows an inherent lacuna in the whole proceedings. Therefore after acting as an agent of the court,

when the arbitrator proceeded ex parte on the orders passed by that court, the proceedings are null and void.

What is of still more significance is that the particular court, the court of First Addl. Munsiff had no jurisdiction whatever to entertain an

application with respect to the arbitration proceedings, because it was not a competent court within the meaning of Section 2(c) of the Act.

Respondent 1 had at one time before the Sub-Judge A.D.M. placed the tentative valuation of the proceedings at Rs. 5,000. Subsequently he

placed the valuation of the proceedings at Rs 25. Both these valuations are irreconcilable and neither of them is the correct valuation because on

the face of the partnership deed itself the valuation was of a court having jurisdiction over matters worth more than Rs. 20,000 and that was the

High Court alone Therefore the proceedings having been started on wrong service, apart from its being incomplete, the award is null and void.

Next I come to service on Bomo Devi effeeted upon her on 17-9-1964 on a summons issued by the First Addl. Munsiff. The CPC has to

apply to proceedings under the Act. Under the CPC each summons has to be issued in duplicate. In this case only one ammons was issued, first

against all the con-testing Respondents and that too not in duplicate On the back of the summons the process server has reported that Bomo Devi

one of the Respondents told him that Harish Chander was not there; he had gone to Srinagar on 20-9-1964: he knew about this case and he

would present himself In the first place there is no signature of Bomo Devi on the summons. Secondly, the summons was not for Bomo Devi and

Harish Chander alone, it was for four Respondents who are mentioned therein. The process server has made no attempt to get the notice served

on the other Respondents namely, Miss Pumi and Probha. He has not at all tried to find them out nor is anything on the file about them Even if we

take the summons as a summons properly served which is not correct, it can be deemed to have been served on Mst. Bomo Devi alone. Harish

Chander is not personally served, nor is it argued that Mst. Bomo was an agent of his. Mr. Bhasin has addressed a rather interesting and ingenious

argument on this aspect of the case The purport of his argument is that the purpose of Order 5 is to inform the Defendant of the institution of a

certain suit; if that is substantially done service would be sufficient and proper The scheme pf this order is that the Defendant is to be served

personally if he can be found, failing which summons has to be served on his agent or manager if he carries on the business of the principals (vide

Rule 13). When the Defendant cannot be found and has no agent empowered to accept service the service may be made on any adult male

member of the family (Rule 15).

Here Mr. Bhasin has tried to raise a constitutional point on the interpretation of Rule 15. which I shall examine hereinafter Then he has gone to

the affixation of summons Under Rule 17 and lastly to substituted service Under Rule 20.

Rule 17 says that when the Defendant or his agent refuses to sign an acknowledgment or after using all due and reasonable diligence cannot be

found and there is no agent empowered to accept service on his behalf the serving officer has the option to affix a copy of the summons on the

door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business. This service will be deemed to

be due service. Mr. Bhasih's argument is that Bomo Devi is the mother of Harish Chander. They apparently live together. Therefore if the mother

receives notice and mentions in the notice that the son knows about the proceedings, it should be taken as due service on her son. On the factual

side we do not know whether Mst. Bomo informed Harish Chander at all about, the notice. Leaving aside the factual side. Mr. Bhasin's argument

is that if a door or a conspicuous part of the property wherein the Defendant resides can communicate to the Defendant about service having been

effected, why should not a mother who accepts service for her son be deemed to communicate the same to him. He has similarly argued that if a

notice in a newspaper will be deemed to be service upon a Defendant who has never come across the advertisement or the notice therein, why

should not service of Harish Chander be deemed to be effective when the service is received by his mother His argument is that Order 5 has to be

interpreted in a rational manner so as to advance the cause of substantial justice and technicalities should not be allowed to defeat the ends of

justice. Therefore according to Mr. Bhasin the service should be deemed to be sufficient. I shall analyse this argument of Mr. Bhasin immediately.

But even if all that Mr. Bhasin has argued is to be accepted as correct, it can only be stretched to suggest that service of the proceedings or

arbitration was made on Msr. Bomo and her son Harish Chander. About Miss Pumi or Prabha this service cannot be held to be of any avail.

In (1897) ILR 21 Bom 223, it has been held that service on a female member la not sufficient. However in Bipin Behary Bhattacharya Vs.

Panchanan Bhattacharya and Others, . it has been held that when the person intended to be served has opportunity to communicate with: his family

who has received notice, it should be deemed to be sufficient service.

Interpreting Order 5, Rule 15 the Tra-Co High Court in AIR 1953 T C 494 (FB). has held that Order 5, Rule 16 comes into play when the

Defendant cannot be found It is to be ascertained first that the Defendant cannot be found then and then alone can service be effected on a male

member of the Defendant' family otherwise, not.

This is the scheme of Order 5 I shall now examine the constitutional objections: Mr. Bhasin based on this rule. i.e.. Order 5 Rule 15 According

to him service on a female member of the family should be as effective a service as on a male member otherwise it creates discrimination only on

the ground of sex. In the first place we have to analyse the background in which this rule was enacted. The functions of females in Indian society is

that of housewives. Until very recently it was in exceptional cases that ladies took part in any other activity than those of house wives. Females

were mostly illiterate and some of them Parda Nashin. Therefore in enacting this rule the legislature had in view the special conditions of the Indian

society and therefore enjoined service only upon male members and did not regard service on females as sufficient.

Apart from this reason, this does not, amount to a discrimination. The only relevant Article on which reliance can be placed by Mr. Bhasin is

Article 15 which says the State shall not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth etc The

second part of this Article says that no citizen amongst other things on the ground of sex can be subjected to any disability or liability with regard to

access to shops restaurants, hotels, use of wells tanks, etc The third part of this Article says that nothing in this Article shall prevent the State from

making may special proviso for women and children Even a prima be Reading of this Article permits the State in make special provision with

respect to women. This special provision may be for their betterment or may be made for some other purpose the language of this sub-Article is so

worded as to cover any provision specially made for women. The provision of Order 5 Rule 15 does not give them any disadvantageous position

but rather exonerates them from the responsibility of fastening notice of service as service of the other members of the family Therefore I think this

argument of Mr. Bhasin does not call for a greater comment than indicated above Further, a similar question arose in a reported case of the

Calcutta High Court in Sri Mahadeb Jiew and Another Vs. Dr. B.B. Sen, wherein it was held that ordering security of costs against a woman

Plaintiff tinder the provisions of Order 25. Rule 1(3) of the CPC who is not possessed of sufficient immovable property in India does not

contravene Article 15. Similarly it was held in a number of eases that the following provisions which confer special privileges upon or protection to

women are not invalid Section 497 of the IPC provides that a woman shall not be liable as abettor of the offence of adultery, Yusuf Abdul Aziz

Vs. State, of the IPC orotic ts the modesty only of women (AIR 1953 MB 147) Section 488 of the Code of Criminal Procedure obliges the

husband to maintain his wife bat not vice versa: Thamsi Goundan Vs. Kanni Ammal, etc. etc These author lies therefore lend support to the view

that in enacting Order 5. Rule 15 there is no discrimination between a woman and a man simply on the ground of his or her sex in receiving a notice

on behalf of some other member of the family This constitutional objection of Mr. Bhasin does not therefore carry force.

The CPC has however laid down a scheme of how service is to be effected. it has taken normal human conduct and the family and other

conditions into consideration and then laid down different modes of service of summons upon Defendants in various cases.

A good deal of argument was addressed by the learned Counsel for the parties on the provisions of the Partnership Act. According to Mr.

Bhasin every member of a firm would be considered to be an agent on behalf of the rest of the members. Reference was made to Sections 18 and

19 of the Partnership Act, According to Mr. Bhasin the two contracting, parties to the partnership in question were the firm of Vazir Chand Harish

Kumar and the firm of Mohd Abdullah Mir and his sons. Therefore after the death of Wazir Chand his widow also became a partner in the firm,

Wazir Chand Harish Kumar. Therefore service effected upon her would be deemed to be service on the other members of the firm, because that

service will be deemed to be effected upon her as the agent of the firm.

The learned Counsel for the other side tried to controvert this proposition and addressed arguments on this aspect of the case, but with

deference to the counsel for the parties. I am afraid this argument does not at all arise in this case. It was for this purpose that I stated clearly in the

opening part of this order who the contracting parties were. The partnership was not entered into by any firm on either side but was by individuals

on both sides on the one side Wazir Chand and Harish Chandra became partners. On the other side Mohd Abdullah Mir and his two sons became

partners of the new concern. It was for the sake of convenience that the first two gentlemen were described as party 1 and the latter three as party

2 but it was individuals in their individual capacity who entered in the partnership and not two different firms. Therefore this part of the argument on

either side was uncalled for and did not at all arise under the circumstances of this ease.

Another argument of Messrs. Sunder Lal and N. Chand is that the award has been given more than four months after the arbitrator entered

upon the reference I do not think thus argument has any force The arbitrator entered upon the reference on 30-11- 1964 when the First Addl

Munsiff proceeded ex parte against the Respondents 4 to 0. Till that date nothing had been done in the arbitration proceedings and no step was

taken by the arbitrator except seeking the aid of the court in effecting service upon them. As to what should be considered, the date of entering

upon a reference 1 need not quote any authority because even this Court has held in a number of cases some of which are reported that entering

upon a reference will be construed to be the date when some effective step in the arbitration proceedings is taken by the arbitrator.

A good deal of argument was also addressed about the impartiality of the fabricator Mr. Shahdad. It was further argued flint he had associated

somebody else in the drawing up of the award because throughout the award the arbitrator had used the word ""we"" instead of ""I"" These things are

about the merits and as in my opinion as the whole award has to be set aside on technical grounds, DO finding need be given by me on this part of

the case.

The result is that the award as well as the entire arbitration proceedings are set aside Respondents 1 to 3 will pay the costs of is be

proceedings to Respondents 4 to 7.