PRATIBHA BONNERJEA, J. ( 1 ) THIS application is for setting aside an interim award made and published by the arbitrator on 29. 3. 83. ( 2 ) THE disputes between the parties arose out of two partnership business carried on by the petitioner and the respondent Nos. 1, 2, 4, 5, 6 and 8 under the name and style of Messrs Govinda Sheet Metal Works and Foundary and Messrs Gopinath Paul and Sons pursuant to the deed of partnership deed dated 11. 4. 67. It is the petitioner's case that he has been completely ousted by the respondent partners and they have been misappropriating the partnership funds and manipulating the Books of Accounts by making false entries therein. It is further alleged that the respondent partners did not allow the petitioner to inspect the accounts excepting for a short period which he somehow or other managed to see. As it was not possible to carry on the said business anymore the petitioners took out an application under section 20 of the Arbitration Act for filing the arbitration agreement contained in the Partnership Deed and for referring the disputes regarding the accounts as well as for dissolution of the partnership. The said application came up for hearing on 11. 4. 79 and by consent of the parties an order was made appointing the present arbitrator to give decision on all the disputes in the petition exception the question of dissolution of the partnership but including the question as to how much would be payable to the petitioner by the respondent partners on proper accounting". The money due to the petitioner will have to be paid within the time to be fixed by the arbitrator. The arbitrator was further given liberty to engage a surveyor and an accountant, if he would think fit. It is, therefore, obvious that the petitioner did not press for the dissolution of the partnership and agreed to retire upon receipt of his just dues on proper accounting. ( 3 ) THE arbitrator entered upon the reference and at the meeting held on 26. 3. 81, the issues to be decided by the arbitrator were suggested discussed and settled and 7 issues were framed. ( 3 ) THE arbitrator entered upon the reference and at the meeting held on 26. 3. 81, the issues to be decided by the arbitrator were suggested discussed and settled and 7 issues were framed. The Issue No. 5 was as follows: - "do not the Books of Accounts of the firm depict the true and correct state of affairs?" ( 4 ) THE minutes of the said meeting also recorded:"the main issue in this discussion was whether in valuing the share payable to the claimant the accounting should be made strictly according to the provisions of the Partnership Deed and the parties could not reach an agreement on this question. The arbitrator fixed the hearing on this issue on Monday the 6. 4. 81". ( 5 ) IT is, clear, that the disagreement relating to the method of accounting cropped up incidentally on the basis of the words "proper accounting" mentioned in the order of reference dated 11. 4. 79. The parties while requesting the arbitrator to decide about the method of accounting did not refer any specific issue o this point as will be evident from the fact, that no such specific issue was framed or settled at the meeting of 26. 3. 81. ( 6 ) IT was contended by the petitioner, before the arbitrator that for taking proper accounts, the assets of the partnership must be valued on the basis of their market price and that was why a clear provision was made in the order of reference dated 11. 4. 79, for appointment of a surveyor. The respondents on the other hand contended that Clause 18 of the Partnership Deed provided the agreed method of valuation of assets and that should be strictly follows as the agreement was binding on the petitioner. For the sake of convenience, Clause 18 is set out below: -"in any case in which it may become necessary to value the assets of the business of the partnership, the same shall be taken at the written down book value as disclosed in the books of accounts on the relevant date after deducting therefrom the doubtful debts and the amount of liabilities shall also be taken at the book value as disclosed in the books of accounts after making necessary adjustment for outstanding liabilities and other usual and necessary provisions on the relevant date". ( 7 ) IT should be noted that the aforesaid issue on the method of proper accounting though incidental was an extremely important one as the decision of the arbitrator on this point would be the basis of the award to be made by him in future. After hearing the parties for several days, considering the order dated 11. 4. 79 and the Partnership Deed, the arbitrator gave this decision on 29. 3. 83 : -"i hold that insofar as accounting involves valuation of assets of the partnership, such valuation will have to be done in the manner provided for in Clause 13 of the said partnership agreement provided that valuation of the assets concerned have been done and entered in the books of accounts of the partnership. I find myself unable to accept the claimant's contention that in the context of the said consent order, "proper accounting" must mean accounting on the basis of the market value of the assets, and that by consenting to "proper accounting" the parties had given a go-by to the method of accounting provided for in the said partnership agreement". ( 8 ) ACCORDING to the petitioner, the decision is an interim award whereas the respondent's contention is that it is not an award at all. Therefore it has to be decided first whether it is an award or not. According to the petitioner the arbitrator was requested to give his decision as to what should be the method of accounting for "proper accounting" directed by order dated 11. 4. 79. The arbitrator decided that the proper accounting is accounting in accordance with the provisions of the Partnership Deed. This decision contains all the requisites of an award. Hence it is an interim award. The respondents on the other hand contends that by this decision, the arbitrator has not decided any dispute referred to him by the order dated 11. 4. 79. He has only decided the method of accounting to be adopted by him in taking accounts of the partnership business. All decisions are not awards. Therefore, this document dated 29. 3. 83 cannot be treated as an interim award. The respondent's counsel relies on the observation in Russel on Arbitration, 20th Edn. , page 304 under the heading "substantive requisites of Award". All decisions are not awards. Therefore, this document dated 29. 3. 83 cannot be treated as an interim award. The respondent's counsel relies on the observation in Russel on Arbitration, 20th Edn. , page 304 under the heading "substantive requisites of Award". "an award in order to be valid, must be final certain, consistent and possible and must decide the matters submitted and no more than the mattress submitted. " ( 9 ) THE respondents' counsel strongly relies on the words "no more than the matters submitted" and contends that the mode of accounting was not submitted to the arbitrator by order dated 11. 4. 79. Hence this issue relating to "proper accounting" was not the subject-matter of the reference and this decision cannot be treated as an award. I am unable to accept this submission of the respondents' counsel. If any issue arises incidentally in connection with a reference which is very important for deciding the matters submitted to the arbitrator, such incidental issue is bound to come within the fold of the reference. In this case the dispute regarding the correction of the partnership account was submitted for adjudication with a direction that proper accounts should be taken. The question what would be the method of proper accounting, was certainly covered by the order of reference. On this point, the arbitrator has given his decision which is final, certain and apparently consistent and possible and of will be binding on all the parties unless the same is set aside. I have no hesitation to hold that this is an "award" and an interim award. ( 10 ) THE second point is whether this interim award is liable to be set aside on the ground of legal misconduct of the arbitrator and the error of law apparent on the face of the award. ( 11 ) ONE of the disputes submitted to the arbitrator was the correctness of the partnership accounts maintained by the respondent partners on which Issue No. 5 was framed by the arbitrator on 26. 3. 81. The arbitrator has to decide this Issue No. 5 but before doing so, he decided to accept the book value of the assets of the partnership as recorded in the books of accounts. According to the petitioner the arbitrator misconducted himself in accepting the book value of the assets without deciding the correctness of the books of accounts. 3. 81. The arbitrator has to decide this Issue No. 5 but before doing so, he decided to accept the book value of the assets of the partnership as recorded in the books of accounts. According to the petitioner the arbitrator misconducted himself in accepting the book value of the assets without deciding the correctness of the books of accounts. In short, the arbitrator has pre-judged the Issue No. 5. By deciding to accept the book value of the assets the arbitrator impliedly held that the books of account were correct. It would be absurd to suggest that the arbitration accepted the book value in spite of his doubt as to the correctness of the entries in the books of accounts. The petitioner contends that this decision must be set aside. The respondents' counsel, however, submits that Issue No. 5 has not been pre-judged as alleged by the petitioner. The arbitrator will decide this issue later on. After this decision in my opinion, it would be absolutely useless and meaningless for the arbitrator to decide Issue No. 5. This decision dated 29. 3. 83 is binding not only on the parties but also on the arbitrator. If in deciding the Issue No. 5 in future, the arbitrator funds that the books of accounts are incorrect and false, what he would do? He will still be found by his own decision and will have to proceed on the basis of the books value of the assets as recorded in the partnership accounts. His own decision will render him completely powerless to do any justice to the petitioner. I, therefore, accept the submission of the petitioners' counsel, that the arbitrator legally misconducted himself by deciding that the method of accounting should be in accordance with Clause 18 of the Partnership Deed without deciding the correctness of the books of accounts. ( 12 ) IT is argued on behalf of the respondents that there is no error on the face of the award. Reliance was placed on the decisions of in (1) Madanlal Roshanlal v. Hukum Chand Mills, AIR 1967 SC 1030 ; (2) N. Chellapan v. Kerala Electricity Board, AIR 1975 SC 230 and (3) Tapan Kumar v. Krishna Kanta, AIR 1980 Cal 28 . The law is well-settled on this point from the date of Champroy Bhara's case reported in AIR 1023 PC 66. The law is well-settled on this point from the date of Champroy Bhara's case reported in AIR 1023 PC 66. According to the respondents Clause 18 of the partnership agreement is binding on the parties and as such the arbitrator had to accept the agreed mode of accounting in this decision dated 29. 3. 83. He has only held that Clause 18 of the partnership agreement is binding on the parties. Therefore there is no misconduct, no error of law apparent on the face of the award. In my opinion the Partnership Deed has to be read as a whole. As a matter of fact in the award arbitrator recorded that he had considered this deed. Clause 18 of the deed cannot be isolated from the other clauses of the deed and cannot be given effect to separately. In this connection Clause 8 and 10 of deed should be considered carefully. Clause 8 : "proper Books of Accounts in respect of the partnership business shall be regularly maintained and kept at the business premises and the same shall be open to inspection by all the parties hereto and/or their authorized representatives. " clause 10 : "each partner shall be just and faithful to the other and to the partnership in all dealings and transactions in or about the business of the partnership and shall render a just and faithful account thereof whenever the same shall be required without any concealment or suppression and shall also upon every reasonable request furnish a full and correct explanation thereof to the others. " ( 13 ) WHEN some of the partners commit breach of the terms contained in Clauses 8 and 10 of the partnership agreement set out above by manipulating the books of accounts or making false entries therein and the aggrieved partner demands proper accounting from them will the guilty partners be entitled to say that the aggrieved partner must accept the account as they are on the ground that Clause 18 of the partnership agreement is binding on the aggrieved partner? It would be the height of injustice to allow them to say 10. It would be the height of injustice to allow them to say 10. Under the provisions of the Indian Contract Act, a contract is discharged by its breach of the partners have committed breach of the partnership agreement by manipulation of accounts, the petitioner will be discharged from his obligation under Clause 18 of the deed and will be entitled to demand true and faithful accounts from them. The award dated 29. 3. 83 clearly indicates that the petitioner by challenging the correctness of the partnership accounts was alleging breach of partnership agreement by the respondent partners and he was also demanding proper accounts of the partnership business. The arbitrator without deciding whether any such breach had been committed by the respondent partners or not or whether the accounts were correct or not, held that Clause 18 of the partnership agreement was binding on the parties and the petitioner was bound to accept the book value of the assets as recorded in the books of accounts. He again this decision "before proceeding any further in arbitration" as recorded in the award. In short, he held that in one party to the contract commits breach of contract the other party to it will still be bound by the agreement. This is clearly contrary to the provisions of the Indian Contract Act. Therefore this decision is based on wrong proposition of law appearing on the face of the award. This award is, therefore, liable to be set aside. ( 14 ) IT is also to be noted that the order of reference intended that the petition should be given his share found due on "proper accounting". If it was intended that the petitioner would be bound by the entries in the books of accounts of the partnership then there could be no direction on the arbitration for taking proper account in the order dated 11. 4. 79. Russel on Arbitration, 20th Edition, page 299 lays down :"the award must be made in such a way as to comply in point of form with any direction contained in the submission unless these directions are complied with the award will not be valid, unless the decisions are of an immaterial character". ( 15 ) I have already pointed out that the direction for taking "proper account" was extremely material and important for the decision of the arbitrator on the main issues. ( 15 ) I have already pointed out that the direction for taking "proper account" was extremely material and important for the decision of the arbitrator on the main issues. This direction is contained in the order of submission dated 11. 4. 79. In my opinion by "proper accounting" the order of reference contemplated true and correct accounting, and nothing else. But the arbitrator decided to accept the book value of the assets recorded in the books of accounts under challenge without verifying their correctness. The arbitrator, thereby acted contrary to the direction contained in the submission. The interim award is, therefore, invalid. In the premises, the award dated 29. 3. 83 is set aside. The petitioner will be entitled to cost of this application.