Kapur, J.:— This is a defendants' appeal against an order passed by Mr. Gulal Chand Jain, Subordinate Judge, First Class, Delhi, setting aside an award.
2. A firm under the name and style of Firm Prabhu Dayal-Ram Narain had four partners, Prabhu Dayal, Prem Chand, Harphool Chand and Ram Narain. Of these four Prabhu Dayal and Prem Chand brought a suit for the dissolution of partnership and for rendition of accounts and on 14th April, 1947 they made an application for the reference of their dispute to five arbitrators named in the application. The purport of this application was that the reference was made to five arbitrators named in the petition who were to look into the bahis and give their award. The wording of the application shows that it was not within the contemplation of the parties that any oral evidence would be led. The arbitration proceedings took place in the presence of all the arbitrators who took down the statements of the patties and took into possession the bahis of the firm. On three different dates, i.e 1st, 2nd and 4th May the parties were examined and so were their bahis in their presence. On 6th May, 1947 further statements of the parties were recorded and on 18th August, 1947 the parties were cross-examined. Finally, the award had to be put in on the 27th November, 1947, but, it is now so stated, because of a mistake with regard to dates no further time was asked for and the arbitration agreement was set aside and the defendants were ordered to put in their written statements on the 9th December, 1947. On the same day, i.e the 9th December, 1947 the matter was again referred to the arbitration of the same arbitrators. It was stated in this application that the Court had previously appointed these very persons as arbitrators and they had nearly finished the arbitration proceedings and the date fixed for the award was the 27th November, 1947 but the arbitrators thought that 29th was the date and, therefore, no further time was asked for and the arbitrators would very shortly complete their award and it was, therefore, prayed that the same persons may be appointed arbitrators to settle the matters and whatever the majority of the arbitrators would decide would be binding on the parties. Statements of the parties were taken and the matter was again referred to the same arbitrators who were asked to put in their award by 6th January, 1948.
3. On the 6th January, 1948 the award was filed in the Court of the learned Judge and objections were taken to the award by the plaintiffs, Prabhu Dayal and Prem Chand which were to the following effect:—
“(1) The arbitrators have misconducted themselves and the proceedings.
(2) The award was improperly procured.
(3) One of the arbitrators Bhola Nath had intimate and nearest connections with the defendants and during the time he was acting as arbitrator he joined a partnership with the defendant and had been carrying on since then as a partner and this fact was not within the knowledge of the plaintiff and the arbitrators had acted with bias and partiality.”
4. The defendants in reply to these objections denied the allegations and stated that Bhola Nath was a cousin of the plaintiffs and in support of their written statement the defendant filed an affidavit.
5. The learned Judge framed four issues and Nos. 3 and 4 are relevant for the purposes of this appeal which are:—
3. Whether the arbitrators misconducted themselves or the proceedings?
4. Whether the award had been improperly procured?
6. The learned Subordinate Judge found that the arbitrators had misconducted Page: 130the proceedings and the award was, therefore, had because the reference made on the 9th December, 1947 was a fresh reference and it was the duty of the arbitrators to have given the parties opportunity to produce such evidence which they wished to produce and as this was not done it amounted to misconduct of the proceedings. On the second issue the learned Judge held that it had not been proved that Bhola Nath had become a partner in the firm Ugar Sen-Ram Narain, i.e with the defendants and, therefore, he found that issue in favour of the defendant. On these findings he set aside the award and against that order the defendants have come is appeal to this Court.
7. Three points were argued by the parties before me: (1) whether it was a new reference and, therefore, fresh opportunity had to be afforded to the parties and (2) whether there was any interpolation in the award which made the award had and (3) whether Bhola Nath had become a partner in the firm.
8. Taking the first point whether it was a new reference, there is no doubt that technically it was a new reference. The old reference was set aside and a fresh application had been made, fresh statements taken and the matter referred to the arbitrators. In order to decide this objection of the plaintiffs one has to see what was stated in the application by which the reference was again made to the same arbitrators. In my opinion, the wording of the application makes it clear that what was contemplated by the parties was that the proceedings had come to an end. All that remained was the writing of the award and it was to complete the Award for which the matter was again referred to the same arbitrators. The words used in the application, translated into English are:—
“The flowing persons were previously appointed arbitrators by this Court and they had nearly finished the proceedings * * * *. The arbitrators will very soon file their completed award in the court and, therefore, the fallowing persons be appointed to settle the matter in dispute in the case.”
9. These words to my mind convey this that the proceedings had nearly finished and all that had be done was that the arbitrators had to finish their award and file it in Court. In view of this it was not necessary for the arbitrators in this case to give any notice to the parties to tender any evidence which they wished to do. If the parties or if the plaintiffs had any further evidence to submit it was open to them to submit a further application to the arbitrators for the purpose. As has been said in Russell on Arbitration page 288: “In order to make out a case entitling the party to impeach the award, the witnesses must be distinctly tendered to the arbitrator for hearing. * * * The party should tender a specific case and specific evidence.” Ordinarily when the arbitrators enter upon arbitration proceedings it is their duty to fix a reasonable time and proper place for hearing of the parties. But, in this particular case the arbitrators need not have done so as the parties never intended that any further evidence should be taken by them. As was observed by Cockburn, C.J in Hopper1: “I would observe that we must not be over-ready to set aside awards where the parties haw agreed to abide by the decision of a tribunal of their own selection, unless we see that there has been something radically wrong and vicious in the proceedings.” As I see the facts of this case I do not find anything Page: 131which is either radically wrong or vicious in the proceedings. On the other hand, the arbitrators seem to have acted in accordance to what was intended by the patties when the second reference was made on 9th December, 1947. In this case no objection on this score that the arbitrators did not fix any date or time for reference was taken by the plaintiffs. They said in a most vague kind of a manner that the arbitrators had misconducted themselves and the proceedings which appears to be nothing more than repeating the words of the statute. No particulars were given as to what the misconduct in the proceedings was as it was never specifically stated that the arbitrators did not give any opportunity to the plaintiffs to produce any evidence nor has it been proved that there was any evidence which they wished to submit to the arbitrators which has been excluded. This ground on which the award has been set aside in my opinion has not been made out and the learned judge has been in error to have decided this point against the defendant.
10. The next objection which was taken on behalf of the plaintiffs was that there were interpolations in the award. Two lines it is claimed have been added one in paragraph 5 and the other addition is of paragraph 8. As I see the original award I do not think there are ??? at all. They have been marked ‘A’ & ‘B’ by the learned Sub-Judge. The addition of paragraph 8 which comes before paragraph 9 without there being any cutting in the numerals 5, 6, 7, 8, 9. They are in sequence without there being any kind of cuttings of these numbers, which shows that these alleged two lines were not added subsequently. But, even if they were, they are something which ts in favour of the plaintiffs. It is quite clear to me that the award was signed after the alleged additions were made. The evidence shows that the arbitrators all signed this document on the 5th. It is true that Har Narain, the writer of this award has stated that at me additions were made the next day, but I am not prepared to believe his statement in view of the fact that the arbitrators have stated that the award was written with the unanimous consent of all the arbitrators and all of them ???. Even if any ??? were made before the award was published, it was done with the consent of all the arbitrators that will not make the award void.
11. In Babua Lal Pardhan v. Badri Lal Pardhum2 it was held that until an award is communicated there is nothing to prevent an arbitrator changing his mind. He cannot be said to be functus officio until the pronouncement ts actually made and even if he has signed the award, this does not preclude him from further considering the matter and, if he thinks fit, recording a note of dissent.
12. In Harbhajan Singh v. Mewa Singh A.I.R 1928 Lah. 153 a case under Schedule II of the Civil Procedure Code, Jai Lal, J., held that the expression “making the award” includes the announcement of the award and the award cannot be deemed to have “been made” till it is announced and one way of announcing it is by filing it in Court. It was similarly held in Harcharan Singh v. Mohan Singh A.I.R 1935 Lah. 491 that an arbitrator can alter what he had not finally decided and pronounced. I am, therefore, of the opinion that even if it be held that two lines were added—and these lines were in favour of the plaintiffs, they will not affect the validity of the award.
13. The third point argued was that Bhola Nath had without the knowledge of the plaintiffs become a partner in the firm Ugar Sen Ram Narain. It is stated that Puran Mal is the father of Bhola Nath. Ugar Sen is a brother of Puran Mal, the father of Bhola Nath and Kanhaya Lal is the son of Ugar Sen and the allegation is that a new firm had been started on the 22nd December, 1947 and Bhola Nath had become a partner therein. Bhola Nath has come in as a witness as C.W 1. It is admitted by him that Ugar Sen is his uncle but be denied that he is a partner in firm Ugar Sen Ram Narain. Ugar Sen is admitted to be a partner in Ugar Sen Puran Mal but that in my opinion will not make Bhola Nath a partner in the new firm. But, at any rate, it is stated in the affidavit that Bhola Nath is a cousin of the plaintiffs although this fact is denied by Prabhu Dayal plaintiff. Be that as it may, it has not been proved that Bhola Nath obtained any special interest in the defendants after the arbitration was entered into and the award is not had on that score. I am, therefore, of the opinion that the order of the learned Judge should be set aside and the judgment passed in terms of the award. In the result, the appeal is allowed and the appellants will have their costs in this court as well as in the court of the learned Subordinate Judge.
14. Appeal allowed.