SANTIRAM MULLICK v. HIRANMOY BAGCHI — 1990 DIGILAW 462 (CAL)

M. R. MALLICK, J. ( 1 ) THIS is an application fort setting aside the Joint majority award of Four Arbitrators dated 6th February 1989 appointed terms of the partnership agreement (clause 13) dated 1. 4. 1987 by which the partnership business of the Chartered Accountancy Firm namely, R and Bagchi was reconstituted and the petitioner and the Respondent nos. to 3 was inducted as partners. ( 2 ) THE petitioner states as follows : without raising any prior dispute and difference whatsoever the respondent no. 1 suddenly by his letter dated 22. 11. 1987 (at page 40 the petition)-appointed his arbitrator being the respondent no. 4 are called upon other partners to appoint their arbitrators in terms of clause 13 of the Deed of Partnership dated 1. 4. 1987. The disputes as referred to by the said notice are in regard to (a) Amount of income of the firm, (b) Diversion of income of the firm, (c) Secretion of the income of the firm, and (d) Withdrawals in excess of the share of the partnership. These were four alleged disputes referred to in arbitration by the said Respondent no. 1. Incidentally, this was the reference on the basis of which the Arbitration proceeding commenced. ( 3 ) IMMEDIATELY by letter dated 11. 12. 1987 (page 41 of the petition) the petitioner replied to the said letter and raised certain issues that prior to invocation of the arbitration agreement and without raising any dispute the said reference is not maintainable inasmuch as there had been no attempt to settle the disputes without which no such reference could be made. ( 4 ) PETITIONER did not receive any of the notice either of appointment or of reference of this arbitration by other partners i. e. respondent nos. 2 and 3. No such letter was given at any point of time. By a letter dated 19-2-1988, the Respondent Nos. 4, 5 and 6 herein served a notice on the petitioner, the Respondent nos. 1, 2 and 3 and an ex-partner Sri S. P. Mukherjee. This was immediately objected to by the petitioner on the ground that this was a reference under clause 13 of the Partnership Deed dated 1. 4. 1987 and as such the said Sri Mukherjee cannot have any such right and/or authority to take part in this arbitration proceedings, he having had already retired. This was immediately objected to by the petitioner on the ground that this was a reference under clause 13 of the Partnership Deed dated 1. 4. 1987 and as such the said Sri Mukherjee cannot have any such right and/or authority to take part in this arbitration proceedings, he having had already retired. ( 5 ) THEREAFTER, by a letter dated 29. 2. 1988 addressed to Sri P. C. Bhattacharjee, one of the arbitrators, the petitioner raised several points including the point that Sri Mukherjee had already retired and cannot have any right under the new partnership Deed dated 1. 4. 1987 and that Sri Dutta, Respondent no. 31 joined the firm on 1. 4. 1987. It was further pointed out by the petitioner that no specific or clear terms of dispute were made known to the partners and that the disputes raised by the respondent no. 1 were vague, ambiguous, unspecific and not sustainable. It was also stated by the petitioner in the said letter that the petitioner had no knowledge about the appointment of arbitrators by the other partners. ( 6 ) WHILE arbitrators served notice by letter dated 19. 2. 1988 yet first letter from Sri S. K. Dutta, the respondent no. 3 was received on 14. 3. 1988 by which it was alleged that after joining the firm on 1. 4. 1987 the said respondent had come to learn that there are disputes relating to the income of the firm and that the petitioner was receiving money from some clients and that steps may be taken against him. ( 7 ) INCIDENTALLY neither the first reference (at page 40) nor the statement of Sri Dutta (at page 49) speaks of expulsion of any partner. There-after the Respondent no. 2 Sri Roy Chowdhury filed his statement on 14. 3. 1988 without invoking the arbitration agreement or referring the matter to arbitration and this is also after 19. 2. 1988. ( 8 ) IN this purported statement the Respondent no. 2 for the first time alleged as if the petitioner is not fit to remain as partner of the firm but agreed that even if that be so petitioner may be paid for goodwill as per terms of the Partnership Deed. Thereafter the Respondent no. 1 filed another purported statement dated 14. 3. 1988 whereby he sought to contend that the petitioner be declared as ex-partner. Thereafter the Respondent no. 1 filed another purported statement dated 14. 3. 1988 whereby he sought to contend that the petitioner be declared as ex-partner. ( 9 ) THIS second statement is quite at variance with one made by the said respondent at page 40 of the petition where he did not allege anything against the petitioner nor made any prayer for declaring the petitioner as ex-partner. As such the said two purported statements are contradictory to each other. The petitioner filed his statement on 21. 5. 1988. Several documents were filed by the petitioner showing the breach of contract by the Respondent no. 2 and carrying out parallel business competing with the firm and reciprocated the gesture by calling for his expulsion from the firm. ( 10 ) ARBITRATORS during the hearing held on 4. 6. 1988 framed 4 issues and no issue was framed as regards expulsion. This is an admitted position which would also be found from the award itself being the last annexure to the petition. At the sitting held on August 20, 1988 it was recorded, however, that the majority of the Arbitrators favoured expulsion as a consequence of breach but there was no unanimity amongst the Arbitrators on the point. ( 11 ) DURING the hearing held on 5. 10. 1988 it was decided by the three arbitrators that the matter be referred to the umpire Mr. Anil Kumar Sen, Ex-Chief Justice of the Hon'ble High Court and accordingly all steps were resolved to be taken by Sri Guha one of the arbitrators arid he was accordingly authorised by other arbitrators present in the meeting including all the partners who were present in the meeting. As a result of such reference to Umpire the Arbitrators became functus officio and no further steps should have been taken by the arbitrators. Curiously without recalling the said decision dated 5. 10. 1988 and without recording further agreement by the parties arbitrators decided to proceed. Last of such sitting was held on 13. 1. 1989. ( 12 ) ON 21. 1. 1989 Arbitrators themselves appear to have held a meeting when none of the parties was present. It was allegedly decided at the said meeting by the arbitrators unanimously that "the partner partners who have committed breach should be expelled from the firm. Last of such sitting was held on 13. 1. 1989. ( 12 ) ON 21. 1. 1989 Arbitrators themselves appear to have held a meeting when none of the parties was present. It was allegedly decided at the said meeting by the arbitrators unanimously that "the partner partners who have committed breach should be expelled from the firm. " The issues were framed earlier wherin no such issue of alleged expulsion was recorded by the arbitrators when all the parties were present. On 21. 1. 1989 when none of the parties was present and the hearing had already been concluded it was allegedly so resolved by the arbitrators, which cannot in any event be said as reference by the parties that partner/partners should be expelled notwithstanding that t4e expulsion was never an issue. Parties were never ad idem on the question of expulsion as such being the subject-matter of reference. The purported award was passed on 6. 2. 1989 and served on the petitioner on 7. 2. 1989 wherein by an alleged majority award petitioner has been expelled from the partnership firm and was also directed to pay a sum of Rs. 68,800/- to the firm. ( 13 ) THE petitioner therefore challenged the award on the following main grounds, namely - (1) The amount of Rs. 68,800/- is frivolous, inconsistent and unsustainable. The disputes and differences having been referred in terms of the agreement dated 1. 4. 1987 and the alleged income being received prior to that date is itself beyond the terms of the reference and the award is in excess of the jurisdiction of the arbitrators. (2) Having referred the disputes to the Umpire the Arbitrators should not have proceeded further. (3) It was specifically provided in the partnership agreement, clause 13, that in case of disagreement amongst the arbitrators the same shall be referred to Umpire and after one of the arbitrators disagreed the disputes should have been referred to the Umpire. (4) In the partnership agreement there was no clause for expulsion of partners and there being no contract between the partners regarding expulsion of any member the joint arbitrators cannot pass any award expelling the petitioner as the arbitrators could not do what the partners themselves could not have done. (4) In the partnership agreement there was no clause for expulsion of partners and there being no contract between the partners regarding expulsion of any member the joint arbitrators cannot pass any award expelling the petitioner as the arbitrators could not do what the partners themselves could not have done. (5) "expulsion" not having been specifically referred to the Arbitrators the arbitrators cannot order expulsion of the petitioners when under the law such expulsion is not permissible because there was no agreement to that effect in the partnership agreement. ( 14 ) THE Respondent nos. 1, 2 and 3 have contested this petition by filing affidavit-in-opposition separately but the contentions raised by them being similar are stated as follows: -the petitioner initially refused to comply with the provisions of the Arbitration Agreement between the parties but subsequently on or around 30th April 1988 nominated Sri Tridwip Kumar Sarkar, Advocate as his nominated Arbitrator. Prior to that date the Respondent nos. 1, 2 and 3 nominated their own arbitrator separately. After the petitioner nominated his Arbitrator the four Arbitrators entered upon reference into the disputes and differences between the parties and the parties filed their respective statement of claims before the learned Arbitrators. Some time between 30th April, 1988, and 13th January, 1989 several sittings were held by the said Arbitrators and the parties made their respective submissions both orally and in writing. In course of the Arbitration proceedings at a meeting held on 13th January 1989, the petitioner himself admitted receiving substantial amounts of money from M/s. G. D. Pharmaceuticals Ltd. and other clients and parties upto 31st March 1987 in his name amounting to Rs. 68,800/ -. The Respondents also adduced evidence of further receipts of the petitioner from the said clients of the said partnership firm. During the course of the Arbitration Proceeding the account of the partnership firm was finalised upto 31st March 1988 and the petitioner duly accepted the said accounts. On 6th February 1989 the said Arbitrators in accordance with the Arbitration agreement between the parties by a majority gave an award holding that the petitioner committed breach of partnership agreement and should be expelled from the partnership firm. It was further directed that the earning made by him on his own admission amounting to Rs. 68,800/- should be returned to the firm within 30 days from the date of the award. It was further directed that the earning made by him on his own admission amounting to Rs. 68,800/- should be returned to the firm within 30 days from the date of the award. On the true construction of the agreement of the provisions of the Arbitration Act 1940 the majority award is valid and there was no question of referring the matter to the Umpire for his decision as alleged or at all. The decision, if any, taken for referring the disputes to the Umpire was during the course of the proceedings and the question of referring the matter to the Umpire for his decision at that stage does not and cannot arise. The said view taken by the Arbitrators were subsequently reserved and/ or recalled by the said Arbitrators in the presence of the petitioner as well as his appointed Arbitrator on 26th November 1988. The Arbitrator had definite power to publish an award on majority view and such majority award has been given in full concurrence of the Arbitrator appointed by the petitioner. The decision of the Arbitrators to expel the petitioner is not contrary to law or beyond the scope of adjudication and/or reference as alleged. The petitioner himself in the statement of claim called for expulsion of the Respondent no. 2 and the question of expulsion was one of the issues before the Arbitrator. There was no error apparent on the face of the award. The arbitrators have given full and exhaustive hearing to the parties. There has been no violation of the principles of natural justice and this court has no jurisdiction to examine the documentary or oral evidence for the purpose of finding out whether or not the Arbitrators have committed any error of law or of facts because this court cannot sit in appeal over the decision of the Arbitrator and correct any alleged error of law or fact unless such error is apparent on the face of the award. ( 15 ) I would take up first the contention of the petitioner that the Arbitrator having once decided to refer the disputes to the Umpire, have, become functus officio and could not thereafter again decide the reference and pass the award on 6th February, 1989. ( 16 ) ON behalf of the Respondents it is urged that as the petitioner and his appointed arbitrator Mr. ( 16 ) ON behalf of the Respondents it is urged that as the petitioner and his appointed arbitrator Mr. T. K. Sarkar were absenting on a few dates of hearing, three arbitrators having found that in the absence of Shri T. K. Sarkar the arbitration could not proceed opined that it was better that the disputes be referred to the Umpire but subsequently the petitioner and arbitrator having agreed to participate in the arbitration the arbitrators proceeded with the arbitration and in the award all the four arbitrators joined by giving their opinion and putting their signature in the award. It is also submitted that in respect of three issues, namely, Issues Nos. 1, 2 and 3 Shri T. K. Sarkar dissented from the majority of other three arbitrators and all the four arbitrators were unanimous in respect of the Issue no. 4 and that the petitioner having participated in the arbitration even after the minutes dated 5th October 1988 when three arbitrators gave their opinion to refer the matter to the Umpire the petitioner is estopped from taking the plea that the arbitrators became functus officio after deciding to refer the dispute to Umpire. ( 17 ) I have carefully considered the minutes of the arbitrators. It is found that on several dates prior to 5th October, 1988 the petitioner and his nomited arbitrator were not attending and the arbitration proceeding came to a grinding half because of their conduct. All the arbitrators have to participate in arbitration otherwise it will be invalid. That is why the three other arbitrators decided on 5th October 1988 to refer this dispute to the Umpire. But there is nothing to show that the matter was actually referred to the Umpire. On the contrary that the matter was not actually referred to Umpire and the petitioner and his nominated arbitrator agreed to participate and did actually participate is apparent from the minutes of the subsequent dates of hearing. Moreover as in the meantime the time to make and publish the award expired all the parties gave their consent in the meeting dated 13th January 1989 to extend the time to make and publish the award till 11th February 1989. Moreover as in the meantime the time to make and publish the award expired all the parties gave their consent in the meeting dated 13th January 1989 to extend the time to make and publish the award till 11th February 1989. If the arbitrators referred the disputes to Umpire they could have been functus officio, but even though three arbitrators gave their opinion to refer the disputes to the Umpire as the petitioner and his nominated arbitrator were not participating in the arbitration ultimately they did not implement that decision and reversed that decision as the petitioner and his nominated arbitrator agreed to participate and actually participated in the arbitration thereafter. As all the arbitrators also fully participated in the proceeding and in signing the award the contention of the petitioner, in this respect has no merits. ( 18 ) THE second ground taken by the petitioner is that in view of the clear provisions in Clause 13 of the partnership agreement when the arbitrators were not unanimous in their verdict and there were disagreement among the arbitrators in respect of the Issue nos. 1, 2 and 3, the arbitrators should have referred their differences to the Umpire and the award purported to have been passed as majority award is illegal and invalid. ( 19 ) THE clause 13 reads thus-"that on any dispute arising out of the interpretation of this agreement or any other disputes amongst partners, they shall refer the matter to arbitrators, each of the partners shall be entitled to re-appoint one arbitrator and arbitrators in case of their disagreement shall refer to an Umpire appointed by them and in all cases, the provisions of the Arbitration Act 1940 5hall apply. " ( 20 ) MR. P. K. Roy, learned Counsel appearing for the petitioner submits that the words "in case of disagreement" as mentioned in the above clause would clearly visualise any disagreement i. e. the disagreement of even one arbitrator out of four arbitrators and when admittedly in this case there is disagreement of one arbitrator in respect of the decisions to Issue Nos. P. K. Roy, learned Counsel appearing for the petitioner submits that the words "in case of disagreement" as mentioned in the above clause would clearly visualise any disagreement i. e. the disagreement of even one arbitrator out of four arbitrators and when admittedly in this case there is disagreement of one arbitrator in respect of the decisions to Issue Nos. 1, 2 and 3, then in view of this clear stipulation of clause 13 the general provisions of the Arbitration Act will not be attracted and it cannot be said that as the arbitrators were not equally divided and three arbitrators having concurred in their findings and only one dissented, the majority award is a valid award. ( 21 ) MR. Dipankar Gupta, learned Counsel, appearing for the respondents has submitted that Clause 13 cannot be construed as modifying in anyway the general provisions of the Arbitration Act and by using the expression "and in all cases provisions of the Arbitration Act, 1940 shall apply" have made it clear that Clause 13 does not intend to specify anything contrary to what is provided in the Arbitration Act. He draws my attention to the provision of sub-section (3) of section 10 of the Arbitration Act which reads as follows-"10 (3) When an Arbitration Agreement provided for the appointment of more Arbitrators than three, the Award of the majority or if the arbitrators are equally divided in their opinions the award of the Umpire shall, unless the arbitration agreement otherwise provides, prevail. " ( 22 ) HE submits that in this case it cannot be said that the Arbitration Agreement has provided anything contrary to what this general provision of the Arbitration Act provides and the expression "in the case of disagreement" has to be construed as equal division of the opinion of the Arbitrators for the obligation to refer their difference to the Umpire and when only one Arbitrator disagreed the majority award will be quite valid under section 10 (3) of the Arbitration Act, 1940 and the majority award cannot be held to be invalid on the ground that the arbitrators did not refer their differences to the Umpire under Clause 13 of the partnership agreement. ( 23 ) ON carefully examining Clause 13 I am of the view that the expression "in case of disagreement" in the light of the subsequent expression "and in all cases the provision of Arbitration Act 1940 shall apply", when taken together clearly indicates that Clause 13 does not provide for any contrary provisions. If the disagreement of anyone of the four arbitrators would have obliged the arbitrators to refer their differences to the Umpire then the Clause 13 should have expressed that clearly. When the Clause 13 provides that in all cases the provision of the Arbitration Act would apply this indicates that the parties agreed to abide by the provisions of sub-section (3) of section 10 in case of disagreement. Therefore only when there was equal disagreement of four arbitrators the matter has to be referred to the Umpire. Clause 13 does not in effect provide for any contrary provision and only indicates that in case of disagreement the matter shall be referred to the Umpire and in all cases the provision of Arbitration Act will apply. If it was specifically provided that even if one of the arbitrators disagreed with the majority of three arbitrators the matter has to be referred to Umpire, there should have been such clear provision, otherwise the general provisions of sub-section (3) of section 10 of the Arbitration Act would apply. ( 24 ) THE General provision of sub-section (3) of section 10 that where the Arbitration Agreement provides for the appointment of more arbitrators than three, the award of the majority or if the arbitrators are equally divided in their opinions, the award of the Umpire shall prevail is based on the sound principle that when the number of arbitrators is more than three there can only be a binding award when the majority of the arbitrators make the award. In case the arbitrators are equally divided the disputes has to be referred to the Umpire so that the decisions of the Umpire will tilt the balance and the Umpire taking any of the two views of the two groups of Arbitrators when they are equally divided the award shall be in that case also a majority award. In case the arbitrators are equally divided the disputes has to be referred to the Umpire so that the decisions of the Umpire will tilt the balance and the Umpire taking any of the two views of the two groups of Arbitrators when they are equally divided the award shall be in that case also a majority award. In Sitaram v. Santi Lal reported in AIR 1952 Vindha Pradesh 76 referred to in S. D. Singh's Law of Arbitration page 208 (9th Edition) it has been held that sub-section (3) makes provision for validating majority awards when the reference is no more than three arbitrators and all such cases unless the agreement provides otherwise the award of the majority will prevail. This is, however, subject to the provision of sub-section (3) of section 10 that when the reference is to even number of arbitrators and there is no majority, the award of the Umpire will prevail. In a Bombay High Court decision of Mayor Textiles Ltd. v Dialdas and Sons reported in AIR 1955 (NUC) (Bombay) 4825 referred to in S. D. Singh's Law of Arbitration page 208 (9th Edition), it has been observed that the parties may agree that an unanimous award delivered by at least 3/4th or 2/3rd majority alone would bind them and unless there is a provision to the contrary the award of the majority shall prevail. It is, therefore, clear that unless there is a clear provision to the contrary the provision of sub-section (3) of section 10 shall prevail. In this particular case as I have already indicated there is no clear provision that only unanimous verdict will prevail or that in case of anyone of Arbitrator disagreeing, the disputes have to be referred to the Umpire and when there is no such clear provision in Clause 13 of the Partnership Agreement and when in Clause 13 it has been provided that in all cases the provisions of the Arbitration Act shall apply then I am satisfied that in this case also the matter was to be referred to the Umpire only when the arbitrators were equally divided m their opinion. But It is clear that three of the arbitrators gave one opinion and one arbitrator gave the contrary opinion. But It is clear that three of the arbitrators gave one opinion and one arbitrator gave the contrary opinion. In such case the majority award is quite valid under section 10 (3) of the Arbitration Act when there is no dispute that all the four arbitrators participated I in the proceeding and in the award by signing the award. Therefore, this contention of the petitioner cannot also be upheld and must be dismissed. ( 25 ) THE third contention of the petitioner is that in the earlier partnership agreements there was the specific provision in the agreement for expulsion of the partner but in the agreement of 1987 no provision for expulsion of any partner has been provided and that in the circumstances when under the partnership agreement the partners could not expel any member, then in view of the clear provision of section 33 of the Partnership what the partners could not do under the agreement the arbitrators cannot pass this award expelling the petitioner from the partnership business. ( 26 ) MR. P. K. Roy, learned Counsel appearing for the Respondent drawn my attention to section 33 of the Partnership Act and it is submitted that for expelling a partner the term of partnership must confer power of expulsion specifically and even in such a case its exercise will not be in good faith unless it is done with the honest view of the interest of the firm and with the notice to the partner affected and an opportunity of being heard. Section 33 of the Partnership Act is reproduced below:"33. (1) A partner may not be expelled from a firm by any majority of the partners, save in the exercise in good faith of powers conferred by contract between the partners. (2) The provisions of sub-sections (2) , ( 3) and ( 4) of section 32 shall apply to an expelled partner as if he were a retired partner. " ( 27 ) MR. (2) The provisions of sub-sections (2) , ( 3) and ( 4) of section 32 shall apply to an expelled partner as if he were a retired partner. " ( 27 ) MR. P. K. Roy, learned Counsel appearing for the petitioner, therefore, points out that when admittedly there was no such contract between the parties that any of the partners can be expelled from the partners then expulsion is in excess of the jurisdiction and beyond the scope of a agreement, that the Arbitrators cannot take upon themselves burden nor can do things which the parties could not have done and which the agreement does not provide, that they are not to create any right but only to adjudicate upon the existing rights and liabilities of the parties according to law. He draws my attention to the decision of the Supreme Court reported in AIR 1988 SC 116 (Continental Construction Co. Ltd. v. State of M. P.) in which the Supreme Court has observed that the arbitrators are to decide the disputes according to law and are bound to follow and apply the law and if they do not, the same can be set right by court, if the error appears or face of the award. He also refers to me a decision of (Dr. S. Dutt v. University of Delhi) reported in AIR 1958 SC 1050 wherein the Supreme Court has refused to uphold the award of the Arbitrator involving a legal position which is clearly erroneous in view of a contrary statutory provision and the award was to be set aside as one disclosing an \ error on its face. ( 28 ) BEFORE considering the submission of the learned Advocate for the petitioner on this point, it would be profitable at this stage to particularly indicate the purport of the award of the arbitrators. It is gathered from the award that in the meeting held on 4th June, 1998 on the basis of the respective submissions of fact made by the parties before the arbitrator following the four issues were framed :1. Can the Arbitrator take into consideration the accounts of partners prior to 1st April, 1987 ? 2. Can the allegations or disputes raised by Mr. Mukherjee, an ex- partner be considered by the present Tribunal ? 3. Did the partners commit any breach of partnership ? if so, what is the consequence thereof ? Can the Arbitrator take into consideration the accounts of partners prior to 1st April, 1987 ? 2. Can the allegations or disputes raised by Mr. Mukherjee, an ex- partner be considered by the present Tribunal ? 3. Did the partners commit any breach of partnership ? if so, what is the consequence thereof ? 4. Whether any of the partners drew any amount in excess ? if so, How much and what should be the result of such excess withdrawal if any? ( 29 ) THE Arbitrators in their meeting held on 6th August, 1988, answered Issue Nos. 1 and 2 by majority of the Arbitrators and only Mr. T. K. Sarkar dissented. So far as the Issue No. 4 was concerned, it was answered in the negative unanimously by the meeting held on 21st January 1989. In that meeting dated 21st January 1989 it was unanimously decided by the Arbitrators that the partner/partners who have committed breach of the partnership should be expelled from the firm. Thereafter three of the Arbitrators gave the award on 7. 2. 1989 that the, petitioner Sri S. R. Mallick has committed a breach of the partnership firm whereas Sri T. K. Sarkar gave a verdict that it was U. N. Roy Chowdhury who violated the provision of the partnership Act and has committed breach of trust which amounts to the breach of partnership. Thus the majority of the arbitrators have given their following decisions by the award dated 6th February 1989- "mr. S. R. Mullick has committed a breach of Partnership and shall be expelled from the partnership firm forthwith. The earning made by him on his own admission amounting to Rs. 68,800/- shall also return to the firm within 30 days from the date of the award. " ( 30 ) BEFORE me as I have already indicated Mr. P. K. Roy the learned Counsel challenges this award of expulsion of the petitioner from the partnership, as an award which is contrary to law. I have already indicated that Mr. 68,800/- shall also return to the firm within 30 days from the date of the award. " ( 30 ) BEFORE me as I have already indicated Mr. P. K. Roy the learned Counsel challenges this award of expulsion of the petitioner from the partnership, as an award which is contrary to law. I have already indicated that Mr. Roy has pointed out that when there was no provision for expulsion of any partner in the agreement of 1987 and when in view of section 33 of the Partnership Act unless there is such an agreement there can be no expulsion of any partner from the partnership the expulsion is contrary to law and the error is, therefore, on the face of the award and is liable to be set aside. ( 31 ) ON the other hand, Mr. Dipankar Gupta, learned Counsel appearing for the Respondents has submitted that expulsion of partners is not per/se illegal because section 33 of the Partnership Act itself provides for expulsion of partners pursuant to agreement between the partners subject to of course exercise of powers of expulsion ill the good faith. He also points out that under section 11 of the Partnership Act subject to the provision of the Partnership Act, the mutual rights and duties of the partners of a firm may be determined by contract between the parties and such contract may be expressed or may be implied by a course of dealing, and that such contract may be varied by consent of all the partners and such consent may be expressed or may be implied by course of dealing. He therefore points out that there can be either an express or implied contract permitting the partners to expel another partner in good faith, and consequently there was no embargo in the partnership Act against expulsion of a partner but on the contrary the Act contemplates such possibility. He also points out that it cannot be said that expulsion is a remedy which is unknown to law and which cannot granted and that if the matter has been placed before the court of law, the court would have the power to expel a partner in a given situation. Therefore, Arbitrators would have the same power of expulsion. He also points out that it cannot be said that expulsion is a remedy which is unknown to law and which cannot granted and that if the matter has been placed before the court of law, the court would have the power to expel a partner in a given situation. Therefore, Arbitrators would have the same power of expulsion. He therefore submits that expulsion being and totally illegal, when in a non-speaking award the majority of the arbitrators passed the award of expulsion of the petitioner, the court will not go into the question of the merits of the decision and it is well settled that unless a particular conclusion is totally impossible to reach in law the court will not interfere with the non-speaking award in an application for setting aside of the award. To bring home this point he refers me to the observation of Chinnappa Reddy, J. in Executive Engineer (Irrigation) v. Abhadut Jena, reported 1988 (1) SCC 418 at page 437, namely, "on the other hand if there was a slightest of possibility of entitlement of the claimant to interest on one or other legally permissible grounds it may not be open to the court to go behind the Award and decide whether the Award of interest was justifiable". (page 435 ). ( 32 ) MR. Dipankar Gupta further points out that the petitioner himself in the statement of claim demanded the expulsion of Respondent no. 2. He also points out that the other three partners, namely, the Respondent nos. 1, 2 and 3 in their respective statements of facts submitted before the Joint Arbitrators also made allegations against the present petitioner of committing breach of partnership agreement and prayed for his expulsion. Therefore, all the partners have made the question of expulsion a dispute in the proceeding and conferred jurisdiction upon the Joint Arbitrators to decide on the question of expulsion and if majority of the Arbitrators on the basis of the materials placed before them came to the finding that it was the petitioner who committed the breach of the partnership agreement, there was no illegality in the majority of the Arbitrators directing the petitioner's expulsion after they have unanimously resolved that if it be found that any of the partners had committed the breach of the partnership agreement he should be expelled from the partnership. He also points out that the Arbitrators have framed the issue no. 3 long prior to the delivery of the award and there was no objection to this at that stage by the petition and the conclusion is inescapable that the petitioner himself had left the question of expulsion to the Arbitrators but is challenging the same now, since the said decision has gone against him, and that even if the arbitrator have done something not permissible in law if the parties acquiesced in the same by participating in the arbitration proceeding, then the parties are estopped from raising any question as to the propriety of the award. He refers me to the two decisions of the Supreme Court, namely, Prasun Roy v. C. M. D. A. , reported in AIR 1988 SC 205 and AIR 1988 SC 2045 (Neelkantan and Bros. Construction v. Superintending Engineer and others) in support of his views. ( 33 ) ON this point Mr. Gupta also points out that the Arbitration Clause is wide enough to include a dispute regarding the expulsion of any of the partners and in any event the partners by the statement and counter statement of fact have defined the ambit of the Arbitration agreement and all the partners have conferred jurisdiction upon the Arbitrators to decide the question of expulsion of the partners by their respective submissions through their pleadings and it is not now open to the petitioner to question the existence of such jurisdiction. In support he refers to me the decision of Calcutta High Court reported in AIR 1956 Cal. 11 (National Fire and General Insurance Co. Ltd. v. Union of India ). Lastly he points out that the issue no. 3 clearly indicates that the question of expulsion was referred to the Arbitrators as a specific issue of law and the decision of the Arbitrator on such specific issue of law referred is final. In support, some decisions reported in AIR 1984 SC 1072 at 1081-82 (para 16 and 18) at page 1085 (para 25) and AIR 1989 SC 268 at page 275 (para 23) have been referred to. It is therefore, submitted that in view of the above there is no error of law appearing on the face of the award nor is there any erroneous proposition of law appearing on the face of the award for the award to be set aside. It is therefore, submitted that in view of the above there is no error of law appearing on the face of the award nor is there any erroneous proposition of law appearing on the face of the award for the award to be set aside. ( 34 ) I have carefully considered the submissions made by both the parties. It is an admitted fact that even though in the earlier Arbitration agreement there was a specific provision for expulsion of partners, no such provision has been made in the agreement dated 1st April 1987 by which the partnership firm was reconstituted and the petitioner and the Respondent nos. 1, 2 and 3 have become partners on the reconstitution of the partnership business. The partnership agreement in clause 13 provides that retirement or a death of a partner will not ipso focto operate as a dissolution of the firm and the remaining/surviving partners shall continue the profession with or without any other partner or partners. Clause 12 provides that on retirement of a partner being incapable of carrying on profession or in the event of a death of a partner a goodwill shall be raised and the value thereof shall be computed or arrived at on 2 years purchase price and the last three years average net profits of the firm, and the net profits for this purpose as computed in terms of Clause 12 shall be paid to the retiring or deceased partner. The only provision regarding the expulsion of a partner is contained in section 33 of the Partnership Act and section 33 as already been referred to in the above, does not contemplate expulsion of a partner unless the terms of agreement of the partnership firm confer upon the majority of the partners to do so and that too such power has to be exercised in good-faith. Therefore, the law of the land is that a partner may be expelled from a firm by the majority of the partners and in good-faith if the terms of partnership confer such power, otherwise not. Admittedly terms of partnership did not confer such power to the partners to expel any partner from the firm. However, the Partnership Act does not make the partners without any remedy when any of the partners commits breach of the partnership agreement. The remedy is in section 44 of the Partnership Act. Admittedly terms of partnership did not confer such power to the partners to expel any partner from the firm. However, the Partnership Act does not make the partners without any remedy when any of the partners commits breach of the partnership agreement. The remedy is in section 44 of the Partnership Act. If a partner commits breach of the agreement then under clause (d) of section 44 at the suit of a partner, the court may dissolve the partnership firm. ( 35 ) I am unable to accept the contention of Mr. Gupta that the court has power in a similar circumstances in case of breach of agreement of partnership by a partner to order his expulsion. The Partnership Act does not confer such power upon the court. If under the agreement a majority of the partners expelled a partner then the partner who has been so expelled or the majority of the partners expelling the partner may approach the court either to challenge or to uphold the action of expulsion and in such a case the court will have to decide the issue. If the court finds that the partnership agreement conferred such power to the majority of the partners to expel a partner, it has still to consider as to whether the same was done in good faith or not. But if the partnership agreement does not provide for expulsion, no partner can approach the court seeking relief for expelling a partner from the partnership business on the allegation that the concerned partner had committed the breach of the partnership agreement. ( 36 ) IT is true that the partnership agreement may either expressly or by implication provide the provision regarding expulsion. It is also true that a partnership agreement may be varied by subsequently to incorporate the provision of expulsion if originally in the agreement there was no such power. But there is nothing to show save and except that in the statement of facts before the Arbitrators the partners for the first time asked the arbitrators to exercise the power of expulsion that there was no contract either express or implied that the partners of the present partnership business at any time agreed that the majority of the partners would be competent to expel a partner. On behalf of the respondents, it is submitted that in the statement of the claim of the petitioner before the Arbitrators he sought for the expulsion of the Respondent no. 2 and the Respondent nos. 1, 2 and 3 sought for the expulsion of the petitioner before the Arbitrators and therefore the Arbitrators were clothed with the jurisdiction to expel a partner on coming to the finding that he committed the breach of the partnership agreement. The relief was sought for before the arbitrators in their separate statements of claim that the partners themselves no doubt but the parties were not at ad idem on the question of expulsion. But each of them made separate allegations against each other and sought for expulsion of a particular partner. The petitioner sought for expulsion of the Respondent no. 2 and the respondents sought for expulsion of the petitioner. ( 37 ) THE Issue No. 3 that has been framed by the Arbitrators indicate that the first part of the issue was whether any partner committed breach of the partnership agreement and the second part was what would be consequence of much breach. Therefore when the issue no. 3 was framed on the basis of the statements of claim made by the respective parties no specific issue of expulsion was framed. Breach of agreement may have other consequence also. One such consequence was the refund of the money earned for which in view of section 16 of the Partnership Act the majority of the arbitrators gave direction to the petitioner to refund the amount of Rs. 68,800/- to the partnership firm. That is one of the consequences of the breach. Therefore, expulsion is not the only consequence of the breach of the agreement. The expulsion could be the consequence if the agreement provided for such expulsion and if majority of the partners in terms of such agreement wanted the arbitrators to exercise that power of expulsion on the finding that the petitioner committed breach of the agreement. In that case the arbitrators under the law could order such expulsion. The parties themselves are bound by the contract. Even if it be true that the petitioner asked for expulsion of the Respondent no. 2 arbitrators could not have allowed expulsion. If such expulsion of the Respondent no. 2 were ordered the same award could also have been challenged as being contrary to law. The parties themselves are bound by the contract. Even if it be true that the petitioner asked for expulsion of the Respondent no. 2 arbitrators could not have allowed expulsion. If such expulsion of the Respondent no. 2 were ordered the same award could also have been challenged as being contrary to law. Therefore, only because the parties in their statements of claim asked for expulsion of the partner or partners making allegations of the breach of the terms of the partnership agreement the arbitrators would have to decide as to whether they could order expulsion of the partner under the law. The arbitrators in my opinion cannot go against the law of the land even if the parties asked them to go against the law because the arbitrators are to decide the disputes according to law and are bound to follow and comply the law and if they do not, the same can be set aside by the court. This is clearly stated in two Supreme Court decisions referred to Mr. Roy, namely, in Continental Construction Company's case reported in 1988 SC 1166 and Dr. S. Dutt's case reported in AIR 1958 SC 1050 . It cannot be said that the specific question of law, namely, expulsion has been referred to arbitration. There is no doubt that where a specific question of law has been referred to arbitration then even if such decision is erroneous the same cannot be interfered with by the court in a proceeding under section 30 of the Arbitration Act. This is a well-settled principle of law and one such decision is reported in AIR 1984 SC 1072 M/s. Tarapur and Company vs. Cochin Shipyard Company and other decision is AIR 1989 SC 268 U. P. Hospitals Ltd. vs. U. P. State Electricity Board. Mr. Roy points out that when the Arbitration clause invoked first by the Respondent no. 1, Hiranmoy Bagchi by the letter d 22nd November 1987 appointing Paresh Chandra Bhattacharyya, Advocate as his arbitrator under Arbitration in clause 13 of the Partnership Agreement and calling upon the other partners to appoint the respective arbitrators in terms of the said clause vide annexure 'c' to the petition. 1, Hiranmoy Bagchi by the letter d 22nd November 1987 appointing Paresh Chandra Bhattacharyya, Advocate as his arbitrator under Arbitration in clause 13 of the Partnership Agreement and calling upon the other partners to appoint the respective arbitrators in terms of the said clause vide annexure 'c' to the petition. He raised the following disputes- (A) amount of the income of the firm, (b) diversion of the income of the firm, (c) secration of the income of the firm, and (d) withdrawals in excess of the share of the partnership. ( 38 ) IT is gathered from the allegations made in the petition as well as in the affidavit in opposition filed by the respondents that at the initial s even though the Respondent nos. 2 and 3 promptly appointed their arbitrators the petitioner was reluctant at first and disputed the respondents unilateral reference of all disputes to arbitration without having any discussion amongst the partners by the letter dated 11th December 1987. The same position was sought to be maintained even not regularly but it is now an admitted position that ultimately he agreed to have the disputes for which the reference has been made by the Respondent no. 1 to arbitration and appointed Sri T. K. Sarkar as his own nominated arbitrator. The Arbitrators on entering into the reference asked the parties to submit their statement of claim. In their respective statement of claim, the Respondent nos. 1,2 and 3, made allegations against the petitioner that he had committed the breach of the partnership agreement and sought for his expulsion. The petitioner on the contrary made allegations against the Respondent no. 2 sought for his expulsion. Even then the issue, namely, issue no. 3 that has been framed by the arbitrators was only to the effect as to what shall be the consequence of such breach of the partnership agreement. Consequently, however, at one stage the majority of the arbitrators pinpointed such consequence as expulsion and ultimately sometime on 23rd January 1989 unanimously decided that if it is found that any partnership has committed the breach of the agreement he should be expelled from the partnership business. Consequently, however, at one stage the majority of the arbitrators pinpointed such consequence as expulsion and ultimately sometime on 23rd January 1989 unanimously decided that if it is found that any partnership has committed the breach of the agreement he should be expelled from the partnership business. Therefore, it is the unanimous decision of the arbitrators themselves that any partner being found to have committed the breach of the agreement should be expelled and consequently on the finding by the majority that it was the petitioner who committed the breach of the partnership agreement passed the majority award explaining him from the partnership business. ( 39 ) IT is, therefore, clear that in the original reference by which the arbitration was initiated by the Respondent no. 1 no such reference was made, so it cannot be said that the arbitrators have been conferred jurisdiction by a specific reference to expel a partner if found to have committed the breach of the agreement. It is true that the arbitrators on entering into reference asked the parties to submit the statement of claim and such statement of claim was made and the partners for the first time pleaded for expulsion, the petitioner asking for expulsion of the Respondent no. 2 and the Respondent nos. 1, 2 and 3 for expulsion of the petitioner. But I am unable to hold that there was any specific question of law referred to the arbitrators, namely, "whether even if there was no specific agreement between the parties empowering the majority of the partners to expel a partner whether any partner could be expelled or not if he be found to have committed the breach of the agreement. " Such a question of law was never referred to the arbitrators in a valid reference before the arbitrators. In the original reference there was no such reference as against expulsion and the issue no. 3 that has been framed also does not specifically raise the issue of expulsion. It is an admitted position that the arbitrators themselves decided that if they found any partner to have committed the breach of the agreement they would order expulsion and on the basis of such unanimous decision when majority the arbitrators found that it was the petitioner who committed the breach of the agreement ordered his expulsion. It is an admitted position that the arbitrators themselves decided that if they found any partner to have committed the breach of the agreement they would order expulsion and on the basis of such unanimous decision when majority the arbitrators found that it was the petitioner who committed the breach of the agreement ordered his expulsion. Therefore, it was the decision of the arbitrators themselves and not a case of a specific question of law being referred by the parties to the arbitrators that in case of breach of partnership agreement, the arbitrators should order the expulsion of concerned partner. ( 40 ) IN that view of the matter, I m convinced that even if in the statements of claim the partners demanded expulsion of the partners committing breach of the agreement, the arbitrators who are to decide the disputes according to law and are bound to follow and comply the law definitely committed an error of law by ordering expulsion of the petitioner when under the law a partner cannot be expelled unless there is a specific agreement between the parties authorising such expulsion of a partner by majority of the partners. Therefore, that part of the award of the majority of the arbitrators ordering expulsion of the petitioner being an error apparent on the face of the award being contrary to law is liable to be set aside. The arbitrators have also committed misconduct in law by ordering expulsion when under the law the arbitrators could not expel a partner in the absence of such sanction of expulsion in the partnership agreement and when section 33 of the Partnership Act only authorised expulsion. When the partnership agreement empowers the majority of the partners to expel a partner. ( 41 ) IN the petition, however, the petitioner has also challenged the money award, I find from the award that the arbitrators on own admission of the petitioner about the realisation of the amount of Rs. 68,800/- by earning made from the other parties which was in violation of the partnership agreement directed the said amount to be returned to the firm within 30 days from the date of the award has been passed by the majority of the arbitrators. But I do not find any error apparent on the face of the award. 68,800/- by earning made from the other parties which was in violation of the partnership agreement directed the said amount to be returned to the firm within 30 days from the date of the award has been passed by the majority of the arbitrators. But I do not find any error apparent on the face of the award. I have already indicated that section 16 (b) of the Partnership Act provides that if a partner carries on a business of the same nature and is competing with the firm he shall account for the payment received by him that business. Therefore, there was definite sanction in the law for the majority of the arbitrators passing that money award. That money award is severable from the other part of the award, namely, the expulsion of the petitioner. Therefore, even if that part of the award regarding expulsion is set aside by this court, the money award can be upheld as the said award is in accordance with law and there is no error apparent on the face of the award to justify setting aside of the money award made by the majority of the arbitrators. In the result, the petition is allowed in part. That part of the award made on 7th February 1989 expelling the petitioner from the partnership business is set aside and the remaining portion of the award is affirmed. In the circumstances of the present case I direct the parties to bear their respective costs of this matter themselves. The award case no. 185 of 1989 be now fixed on Friday next for judgment and decree on the award. All parties shah act on this operative portion of this judgment. Award modified.