MADAN MOHAN AGRAWAL v. SURESH AGRAWAL — 1996 DIGILAW 1029 (MP)

ORDER Dharmadhikari, J. - This appeal has been preferred under Section 39(iv) of the Arbitration Act, 1940 against the judgment dated 1.5.1996 of the court of XIIth Additional Judge to the Court of District Judge, Jabalpur whereby the objections raised by the present appellant to the award passed jointly by the two Arbitrators have been rejected and the award has been made rule of the court by passing a decree in terms of the award. 2. The facts leading to the appointment of arbitrators and passing off the award may now be stated. 3. The family started its business in the name of M/s. Chaturbhujdas Ballabhdas and the original partners were Chaturbhujdas with his two sons Madan Mohan Agrawal (appellant herein) and Vallabhdas. From 1966, the trade is being carried on in the partnership firm, named M/s. Chaturbhujdas Vallabhdas. On the death of Vallabhdas in the year 1974, his wife Smt. Rampyaribai (Mother of Smt. Prabhat Agrawal-respondent No. 2 herein) joined as partner in the firm. Smt. Rampyaribai also expired in the year 1991 and Suresh Agrawal (respondent No. 1 - the son-in-law of late Smt. Rampyaribai and husband of respondent No. 2 Smt. Prabhat Agrawal) joined as partner in the firm under a document of partnership dated 14.6.1991. The partnership firm now consists only of two partners i.e. the appellant Madan Mohan Agrawal and respondent No. 1 Suresh Agrawal. They both have equal share 50-50 in the firm. 4. Disputes arose between the two partners who have relation of uncle-in-law and son-in-law. On 19.6.1994, appellant Madan Mohan Agrawal got published a public notice in the newspaper declaring that he has expelled Suresh Agrawal from the partnership. The partnership deed contained an arbitration clause. The two partners agreed with Smt. Prabhat Agrawal wife of Suresh Agrawal that all the disputes between them regarding the partnership firm and family affairs be referred to two arbitrators, both jointly chosen by the parties. The two arbitrators chosen were Shri K. Kumar who is Chartered Accountant of the partnership firm and Shri Bhanu Kumar Jain who was a contractor at Katni and was customer of the firm since several years. The appointment of the two arbitrators jointly by the parties and reference of disputes to them are contained in three affidavits separately sworn by them. The terms of reference are also contained in the affidavits. The appointment of the two arbitrators jointly by the parties and reference of disputes to them are contained in three affidavits separately sworn by them. The terms of reference are also contained in the affidavits. In the affidavit sworn by the appellant Madan Mohan Agrawal, there is a specific reference to appointment of arbitrators for resolving of disputes regarding the firm and family properties of the parties. They jointly agreed to be bound by the award of the arbitrators. 5. After filing of affidavits by the parties, arbitrators entered upon the reference on 11.8.1994. The first effective meeting of the arbitrators and the parties took place on 23.8.1994. The order sheet of that day contained in the proceedings of the arbitration states that no written submissions were made by any of the parties. They agreed to file oral statements of their claims. The appellant explained his viewpoints and answered various queries. Suresh Agrawal and his wife Smt. Prabhat Agrawal also explained their view points and answered the queries. On 23.8.1994, the arbitrators agreed to appoint Hon'ble Shri B. C. Verma, Retired Chief Justice of Punjab and Haryana High Court as Umpire for resolving the dispute in the event of difference of opinion between them. On 31.8.1994, the arbitrators were served with a legal notice by Shri J. P. Tiwari, Advocate on behalf of Madan Mohan Agrawal informing that under changed circumstances and looking to the behaviour and acts of the arbitrators it was desired to cancel the appointment of the two arbitrators. 6. The two arbitrators adjourned the proceedings fixed before them on 31.8.1994 and then sent a joint reply to the legal notice on 23.4.1994 stating therein that the authority of the arbitrators cannot be revoked unilterally by one of the parties to the reference. In the said reply it was also mentioned that on the earlier date Madan Mohan Agrawal participated in the arbitration proceedings and answered queries made by the arbitrators which were recorded by the arbitrators. Along with the said reply, the arbitrators sent the statements containing questions and answers given by Madan Mohan Agrawal as one party and Subhash Agrawal and Smt. Prabhat Agrawal as the other. By the same reply. Madan Mohan Agrawal was called upon to appear before the arbitrators on 1.10.1994 with further claims, if any. Along with the said reply, the arbitrators sent the statements containing questions and answers given by Madan Mohan Agrawal as one party and Subhash Agrawal and Smt. Prabhat Agrawal as the other. By the same reply. Madan Mohan Agrawal was called upon to appear before the arbitrators on 1.10.1994 with further claims, if any. On 1.10.1994 the other party i.e., Suresh Agrawal and his wife appeared before the arbitrators but the appellant absented. The arbitrators, therefore, adjourned the case for 7th October, 1994 and issued another notice on the same day to the appellant informing him that he was avoiding the proceedings. He was again called upon to appear on the next date i.e., 7.10.1994. It was also informed that he was already supplied the copies of statements recorded of the oral submissions made by the parties. It was desired that if he wished to submit further details or documents or wished to modify any part of the statements made, he might do so on 7th October, 1994 or before it. It was made clear that he would not be granted any further opportunity and if he again failed to appear, the award would be passed after hearing the opposite party by assuming that he had nothing more to say. 7. On 7.10.1994, the appellant absented, but the opposite party was present. On behalf of the appellant, one Shri Sharma appeared with a medical certificate in proof of illness of the appellant and medical advice to him to take rest. On behalf of the appellant an application was also filed asking the arbitrators to direct Suresh Agrawal to file all papers concerning the business and property of the firm before the arbitrators. On the same day, Suresh Agrawal and his wife submitted more documents and statements of claim. Another application was also made on behalf of the appellant for calling the record from Suresh Agrawal. Suresh Agrawal denied to have in his possession any other document concerning the property of the firm. He insisted on hearing the case ex parte. 8. On 12.10.1994, the arbitrators received a notice from Shri V. R. Rao, Advocate informing them that the arbitration proceedings have been stayed by the District Judge, Jabalpur. Suresh Agrawal denied to have in his possession any other document concerning the property of the firm. He insisted on hearing the case ex parte. 8. On 12.10.1994, the arbitrators received a notice from Shri V. R. Rao, Advocate informing them that the arbitration proceedings have been stayed by the District Judge, Jabalpur. It is discovered now that the appellant had approached the District Judge under Section 11 of the Arbitration Act seeking revocation of the authority of the arbitrators on the ground of alleged bias and favouritism shown to the opposite party. 9. The District Judge on 11.10.1994 had passed an ex-parte order of stay of the arbitration proceedings. The opposite party, namely, Suresh Agrawal and Smt. Prabhat Agrawal preferred a revision (C.R. No. 1339/94) in the High Court and the High Court on 25.10.1994 granted ex parte stay of the operation of the order of the District Judge, on 16.11.1994, the arbitrators were informed that the order of stay granted by the District Judge was vacated by the High Court. 10. The arbitrators, therefore, issued registered notices to the parties on 18.10.1994 for hearing on 23.11.1994. By the said notice, the parties were also directed to appear along with their claims and documents, if any. On 23.11.1994, the appellant again absented and on his behalf his agent Arvind Sharma appeared. A request in writing for adjournment was made for one month. In the application for adjournment it was stated that the appellant proposes (to challenge the ex parte order passed by the High Court and that might take some time. The arbitrators were asked not to go ahead and not exhibit haste. Suresh Agrawal and his wife who were present on 23.11.1994 insisted on ex parte hearing. After hearing the parties, the arbitrators refused to adjourn the case. Therefore, after hearing the parties present, the case was closed for final order and for passing off award. 11. The award was then passed on 1.12.1994. It was filed in the Civil Court on 28.4.1995. The Civil Court gave notice to the parties intimating the fact of filing of the award. It is admitted that within 30 days from date of intimation of the filing of the award. Objection to the award was filed by the appellant on 8.5.1995. The objection does not contain any court fees nor it contains any prayer for setting aside the award. It is admitted that within 30 days from date of intimation of the filing of the award. Objection to the award was filed by the appellant on 8.5.1995. The objection does not contain any court fees nor it contains any prayer for setting aside the award. The Civil Court, however, after considering and rejecting the objections to the award, made it a rule of the court by passing a decree in terms of the award. 12. The arbitrators in their award had given the back ground of the facts leading to the disputes and had also given on indication of the procedure followed. They also mentioned why occasion arose to proceed ex parte against the appellant. The operative part of the award contains their decision on the disputes and is to the following effect : Madan Mohan Agrawal, the appellant herein, should return the entire capital, cash amounts in deposit, and other properties and cash to Suresh Agrawal and his wife. The amounts so directed to be returned are said to be contained in a balance sheet. The figures of cash amounts which were directed to be returned have been mentioned in the award and read as under : --------------------------------------------------------------------------- Rs. --------------------------------------------------------------------------- (1) Capital of Suresh Agrawal 6,94,205.00 (2) Deposit in the account of late Smt. Rampyari Bai 1,20,324.00 (3) Deposit in the account of Smt. Prabhat Agrawal 8,17,261.00 (4) Deposit in the account of Master Pratik Agrawal (handicapped minor) 4,21,590.00 (5) Deposit in the account of Master Praveen (Tolu) 1,48,545.00 -------------- Total 22,01,925.00 --------------------------------------------------------------------------- 13. The claims made by Suresh Agrawal in the sum of Rs. 5 lacs for the good will of the firm and Rs. 50,000/- as damages for his illegal expulsion from the partnership firm were disallowed by the arbitrators. 14. The accommodation in House Nos. 619 and 620 of Uprenganj, Jabalpur which were being used for partnership business were directed to be delivered possession of to Smt. Prabhat Agrawal being the sole heir of Smt. Rampyari Bai to whom the above mentioned portion of the property was allotted in the family partition of 1965. Similar directions were issued for handing over possession of the portion of House No. 669 which was also said to have been allotted in family partition of 1965 to deceased Rampyari Bai, mother of Smt. Prabhat Agarwal. The period fixed for handing over possession was three months. Similar directions were issued for handing over possession of the portion of House No. 669 which was also said to have been allotted in family partition of 1965 to deceased Rampyari Bai, mother of Smt. Prabhat Agarwal. The period fixed for handing over possession was three months. It was made clear by the arbitrators that after vacating the portion by the appellant of House No. 620 in Uprenganj, the other party i.e., Suresh Agrawal and his wife would be free to use that accommodation for their business purposes. Similar directions were issued that the opposite party i.e., Suresh Agrawal would hand over possession of accommodation in House No. 619 which was used for partnership business to the appellant within three months as that portion had fallen to the share of the appellant. The claim of the appellant in relation to the house in the sum of Rs. 10,000/- was rejected as baseless. 15. With regard to the ornaments in deposit with the income-tax department, it was hold that they would belong to the person in whose name they are lying in deposit. 16. Until the implementation of the decision of the arbitrators, it was directed that the income-tax due against the opposite party i.e., Suresh Agrawal would be paid by the appellant i.e., Madan Mohan Agrawal and the said payment shall be given due adjustment in the account of Suresh Agrawal. 17. Until implementation of the award of the arbitrators, the appellant was directed to pay a sum of Rs. 5,000/- per month in cash to the opposite party for his expenses to be adjusted in the laters account. 18. Before taking up for consideration the several objections to the award raised by the appellant, a preliminary objection raised by Shri Ravindra Shrivastava learned counsel appearing for the respondents, may first be disposed of. 19. It is submitted that when the notice about filing of the award was received by the appellant, the application filed as objection to the award on 8.5.1995 by the appellant cannot be treated to be an objection within the meaning of Section 30 of the Act. The said application or objection does not contain any prayer clause and there is also no prescribed court fees of Rs. 30/- affixed on it. The said application or objection does not contain any prayer clause and there is also no prescribed court fees of Rs. 30/- affixed on it. It is submitted that no objection on payment of court fees within the prescribed time limit having been filed, the objections which were raised and considered by the below could not have been permitted to be urged and decided. It is argued that the memo of objections being invalid in law, it is non-est from the date of its presentation and that defect is not curable. Reliance is placed on Kasiraja Lakshmikanta Rao v. Dendukuri Venkateswarlu (AIR 1960 And Pra 576). It is also urged that in fact the present appeal is only against the judgment and decree passed in terms of the award and the scope of the appeal is extremely limited. This court cannot, it is argued, in the absence of valid objection to the award, consider the several objections raised in this appeal. 20. When such a question about maintainability of the appeal was raised, the appellant has come up with an application (I.A. No. 10489/96) under Section 149 CPC. By that application, the requisite court fee stamp for Rs. 30/- on the objection has been supplied and condonation of delay in payment of such court fee has been prayed for. Shri N. S. Kale, learned counsel appearing for the appellant, in reply to the preliminary objection submits that there is no particular form prescribed under the Act for raising an objection to the award. According to him, the objection on record, if read in full, contains all necessary ingredients for treating it to be a valid objection for setting aside the award. There may not be any separate prayer clause, but in paragraph 1 of the objection itself it has been stated that for the reasons and grounds mentioned in the memo of objection, the award is liable to be set aside. 21. In Madanlal v. Sundarlal ( AIR 1967 SC 1233 ), on which reliance on behalf of the parties has been placed, it has been observed thus : ".... It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection to an award in the nature of a written statement may be treated as such an application, if it is filed within the period of limitation. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection to an award in the nature of a written statement may be treated as such an application, if it is filed within the period of limitation. But if an objection like this have been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limitation." Relying on these observations it has to be held that the objection on record can be treated to be a valid objection, may be that it does not contain a separate prayer clause. In substance, it was an objection seeking-setting aside of the award. 22. So far as non-payment of Court fee on the objection is concerned, the said Court fee has now been paid along with the application under Section 149 C.P.C. That application has been opposed by the respondents. The preliminary objection raised in this appeal was never raised in the Court below. It was for the first time raised in this appeal. The provision of Section 149 C.P.C. empowers this Court to condone delay in payment of Court fee for bona fide reasons. In the instant case, this Court does not consider that there was any want of bona fides. This Court also desires to avoid technicalities, particularly in the matter of procedure. We, therefore, allow the application (I.A. No. 10489/96) filed under Section 149 C.P.C. by the appellant. The preliminary objection, therefore, is rejected and the objection on record is held as competent. 22-A. The other limb of preliminary objection that the scope of appeal against a decree passed in terms of the award is limited has also no merit. Where by the same order objections to the award are set aside and a decree in terms of the award is passed, appeal is competent on all grounds available under the Arbitration Act. See Jailkumar Jain and others v. Om Prakash and another ( AIR 1970 M.P. 119 ). 23. We now proceed to take up for consideration the several objections raised to the award serially. MISCONDUCT OF THE ARBITRATORS THEMSELVES AND THE PROCEEDINGS 24. It is submitted that the arbitrators had adopted a partisan attitude. See Jailkumar Jain and others v. Om Prakash and another ( AIR 1970 M.P. 119 ). 23. We now proceed to take up for consideration the several objections raised to the award serially. MISCONDUCT OF THE ARBITRATORS THEMSELVES AND THE PROCEEDINGS 24. It is submitted that the arbitrators had adopted a partisan attitude. The respondents and Shri K. Kumar, one of the arbitrators, had associations as members of the Lions Club of India. They were also on visiting terms and there was intimacy between them. The appellant had sent a legal notice intimating that a doubt has been created on the impartiality of one of the arbitrators. The award, therefore, is stated to be bad as one of the arbitrators cannot be said to have acted impartially. 25. The above argument has absolutely no merit. As is rightly pointed out by the respondents, when the two parties agreed to appoint two arbitrators of their choice, it was known to the parties that Shri K. Kumar and Shri Suresh Agrawal were members of the Lions Club. Mere fact that they had intimacy and were on visiting terms cannot be said to be such a disqualification as to render Shri K. Kumar unfit for taking up the work of arbitration. In fact, the acquaintance of the parties with the arbitrator should be treated as a qualification. Shri K. Kumar was Chartered Accountant of the firm since several years and knew both the parties as the clients. The two parties desired all their business and family disputes to be resolved through the arbitrators. It appears that in the course of hearing the present appellant guessed that a part of the decision might go against him and he started raising objection as regards impartiality of the arbitrator. Such a conduct on the part of the appellant has only to be described as most unfair. The objection raised on the ground of want of impartiality of the arbitrators is, therefore, rejected. The other arbitrator has agreed in making the award and there are no allegations of want of impartiality against him. THE ALLEGED MISCONDUCT OF REFUSAL TO GRANT DJOURNMENT 26. It is submitted that the arbitrators misconducted the proceedings by turning down a reasonable request of adjournment made by the appellant. The other arbitrator has agreed in making the award and there are no allegations of want of impartiality against him. THE ALLEGED MISCONDUCT OF REFUSAL TO GRANT DJOURNMENT 26. It is submitted that the arbitrators misconducted the proceedings by turning down a reasonable request of adjournment made by the appellant. It is pointed out that the appellant has made an application under Section 11 of the Arbitration Act in the Court for revoking the authority of the arbitrators. An ex-parte order was obtained by him from the District Court. The opposite party then challenged that order in the High Court in civil revision and obtained ex-parte stay of the directions of the District Judge. When this fact was made known to the appellant he sent his agent with an application for adjournment to enable him to avail a reasonable time for obtaining a bi-party order from the High Court. It is submitted that the arbitrators in rejecting the adjournment application displayed undue haste to help the opposite party. 27. On behalf of the respondents, it is submitted that when the High Court had vacated the stay order passed by the District Judge, the arbitrators acted in sound exercise of their discretion in proceeding with the case. The appellant himself is guilty of acquiescence as after service of legal notice questioning the impartiality of the arbitrators, he sent his representative on 7.2.1994 before the arbitrators and sought to revoke their authority by an application for calling certain record from the opposite party. It is submitted that the arbitrators cannot be accused of showing undue haste. It is pointed out that the arbitrators' authority could have been revoked only by the court and the legal notice sent by the appellant was ineffectual. There were repeated notices sent to the parties by registered post to appear before the arbitrators with their claim and documents. The appellant deliberately resiled from the proceedings before the arbitrators with ulterior motive to frustrate the claims of the opposite party. 28. We have carefully gone through the order-sheets recorded by the arbitrators on several dates on which the proceedings were taken up by them. We have also duly considered the submissions made on this aspect by the learned counsel for the parties. In our opinion, the arbitrators can neither be accused of any undue haste nor any unreasonable conduct on their part. We have also duly considered the submissions made on this aspect by the learned counsel for the parties. In our opinion, the arbitrators can neither be accused of any undue haste nor any unreasonable conduct on their part. The authority of the arbitrators is irrevocable except by leave of the court as provided in Section 5 of the Arbitration Act. The legal notice sent on 31.8.1994 by the appellant questioning the authority of the arbitrators to proceed in the matter was, therefore, rightly ignored by the arbitrators. They, accordingly, sent registered notice on 23.9.1994. On 7.10.1994, the application for adjournment on medical grounds was filed by the appellant along with another application for calling certain records from the opposite party. The opposite party opposed adjournment and insisted on ex-parte decision. It is in these circumstances that the arbitrators decided to proceed ex-parte. We do not find any error in exercise of discretion by the arbitrators in proceeding with the arbitrator. Therefore, they were served with a copy of the order of stay passed by the District Judge on 12.10.1994. On 16.11.1994, however, they were informed of the order of the High Court vacating stay. In such a situation, the arbitrators committed no error of jurisdiction in proceeding by issuing another registered notice on 18.11.1994 to the parties to appear for hearing. Between 18.11.1994 till 23.11.1994, when the case was taken up by the arbitrators there was enough time for the appellant to have approached the High Court for a bi-party order. Even after closing the case by the arbitrators on 23.11.1994 till they made the award on 1.12.1994, sufficient time was available to the appellant to seek orders from the court. The arbitrators were within their legal rights and committed no error in exercise of their discretion in proceeding with the case to complete it within the schedule time of four months in the Act. The refusal of adjournment in these circumstances cannot be said to be a misconduct. See Russell on Arbitration, Twentieth Edition, Page 258, on which reliance has been placed on behalf of the respondent : "But it is not in all cases that an application for an adjournment should be granted. Applications of the kind are constantly made for the purpose of delay. The duty of the arbitrator appears to be as thus expressed by the court. Applications of the kind are constantly made for the purpose of delay. The duty of the arbitrator appears to be as thus expressed by the court. It was by no means obligatory upon the arbitrators to allow of any delay that was asked for within the time during which they were bound to make their award. It was for them to judge, in the first place, whether the application for further time was bona fide, or only for delay. And ever supposing it to be bona fide, still they were to judge whether it was reasonable." See - also the following observations of Madras High Court in Shaw Wallace & Co. v. K. M. Subbier & Co. (AIR 1921 Mad 58). "..... The arbitrators are not bound to postpone the hearing whenever one of the parties announces his intention of questioning their appointment in spite of the fact that the appointment had been made in strict accordance with the terms of the contract." DENIAL OF REASONABLE OPPORTUNITY TO THE APPELLANT AND BREACH OF PRINCIPLES OF NATURAL JUSTICE 29. It is next contended on behalf of the appellant that the arbitrators proceeded ex-parte, refused adjournment and abruptly closed the case, and thereby the appellant was denied a reasonable opportunity to prove his case before the arbitrators. This, according to the appellant, is a misconduct. Reliance is placed on Union of India v. Ghaziabad Railway Station ( AIR 1972 All 34 ), and Payyayula Vengamm v. Payyayula Kesanna and others ( AIR 1953 SC 21 ). 30. The above grievance is not at all legitimate. From the order-sheets of the arbitration we find that repeated opportunities were granted to the appellant to produce his papers and documents to substantiate his claim. On the date the arbitrators were sent legal notice, revoking their authority, they adjourned the case and sent a registered reply on 23.9.1994 clearly mentioning therein that the appellant may submit his further claim on the next day i.e. 1.10.1994. Along with the reply, they sent a copy of the statement of questions and answers which were recorded by them of the appellant and the opposite party. A doubt was sought to be created in mind on the impartiality of the arbitrators by stating that on 23.8.1994 the arbitrators were said to have entertained claims orally submitted by the parties and recorded their oral statements. A doubt was sought to be created in mind on the impartiality of the arbitrators by stating that on 23.8.1994 the arbitrators were said to have entertained claims orally submitted by the parties and recorded their oral statements. The statements so recorded by the arbitrators contain the signatures of the opposite party but the signatures of the appellant were not obtained on them. It is difficult to speculate the reasons why the appellant's signatures are not to be found on the oral statement so recorded by the arbitrators but the arbitrators cannot be held guilty of any partisan attitude as along with the notice issued by them on 23.9.1994 they had sent a copy of duly recorded statements of the parties on 23.8.1994. If no such statement were recorded or they were not faithfully recorded nothing prevented the appellant from promptly replying to the said registered notice dated 23.9.1994 and disputing the correctness of the facts mentioned therein. No such action was taken by the appellant. 31. On 7.10.1994 the appellant had sought adjournment on medical grounds and then on 12.10.1994 produced a stay order from the court of District Judge. That stay order was vacated by the High Court on 25.10.1994. Thereafter, the arbitrators sent another registered notice on 18.11.1994 inviting from the appellant his claims and documents. On 23.11.1994, i.e. the date fixed, the appellant sent his agent Shri Arvind Sharma and again sought adjournment. On 23.11.1994, nothing prevented the appellant from submitting his additional claims and documents, if any, or to dispute the correctness of the alleged oral statements recorded by the arbitrators. The opposite party was also directed to submit additional claims and documents and it did so. As the High Court had vacated the stay, the arbitrators committed no error in proceeding ahead with the hearing on the basis of claims and documents on record. The appellant himself is to be blamed for repeatedly seeking adjournments. When revocation of the authority of the arbitrators was only within the powers of the court, the appellant did not seek intervention of the court within time. In these circumstances, no charge can be levelled against the arbitrators that they denied a reasonable opportunity to the appellant to substantiate his claim and to lead evidence. We do not find that any such misconduct, as alleged above, was committed by the arbitrators. In these circumstances, no charge can be levelled against the arbitrators that they denied a reasonable opportunity to the appellant to substantiate his claim and to lead evidence. We do not find that any such misconduct, as alleged above, was committed by the arbitrators. ALLEGED FABRICATION OF ORAL STATEMENTS OF PARTIES ON 3.8.1994 32. On behalf of the appellant it is submitted that in the order-sheet of the arbitrators dated 23.8.1994 there is a mention that both parties agreed to make oral statements of their claims. The order-sheet also records that both parties explained their view points and answered the queries made by the Arbitrators. The oral statements recorded in the form of questions and answers are to be found in the record of the arbitrators. It is submitted that the said record of oral questions and answers recorded by the arbitrators was made basis of the award. They were not authentically prepared and they were fabricated. They are signed by the opposite party but not by the appellant. 33. As has been mentioned above, the oral statements which were recorded in question and answer form by the arbitrators were sent with registered notice to the appellant and he did not object to the same in the course of arbitration proceedings. The objection was also not raised in the memo of objection filed before the court. It is clearly an after-thought. Such an objection if not raised under Section 30 of the Act within the prescribed period of limitation cannot be allowed to be urged. The law on this aspect is very clear and strict. See Madanlal v. Sundarlal ( AIR 1967 SC 1233 ), and Bijendra Nath Srivastava v. Mayank Srivastava and others ( AIR 1994 SC 2562 = 1994 (2) Arb. LR 277). In the case of Bijendra Nath Srivastava (supra), and objection similar to the nature was sought to be raised by amendment application to the objection memo and was not allowed to be urged observing thus : ".... In subsequent paragraph it has been alleged that the arbitrator had misconducted the proceedings in falsely showing the presence of one of the respondents in the proceedings on certain dates inspite of the fact that he fully knew that said respondent was absent from these proceedings. In subsequent paragraph it has been alleged that the arbitrator had misconducted the proceedings in falsely showing the presence of one of the respondents in the proceedings on certain dates inspite of the fact that he fully knew that said respondent was absent from these proceedings. Although in the original objections various acts of misconduct has been imputed to the arbitrator in several paragraphs, there was no averment in any of the paragraphs of the nature mentioned in abovesaid paragraphs which were sought to be inserted by way of amendment. The said amendments cannot be treated as merely better particulars of what had already been pleaded in the original objections. And the trial Court cannot allow the said amendments." ERROR APPARENT ON THE FACE OF THE AWARD 34. On behalf of the appellant it was then contended that the award in so far as it directs the parties to vacate the accommodations respectively in their possession and hand over its possession to the opposite parties is a direction amounting to an eviction decree which cannot be granted contrary to the provisions of M.P. Accommodation Control Act. Such objection was also raised in the objection memo before the lower Court. 35. The learned counsel for the respondents is right in pointing out that the accommodations in possession of the parties to the dispute were not quo tenant. They were using for business purposes. Certain properties belonged to the partners and their families. It is also of no consequence that the partnership firm was paying some monthly amount for use and occupation of the portion which was allowed in partition to late Rampyari Bai. It is submitted that in relation to such portion of accommodation no relationship of landlord and tenant existed between the parties. 36. Without going into the question about nature of non-relationship between the parties, we do not find that the provisions of M.P. Accommodation Control Act are in any manner violated. From the contents of the affidavits of the parties, the dispute referred to the arbitrators was concerning business disputes of the partnership firm and the family members of the partners. It was a voluntary submission by the parties to the jurisdiction of the arbitrators with regard to the properties of the firm and family properties. From the contents of the affidavits of the parties, the dispute referred to the arbitrators was concerning business disputes of the partnership firm and the family members of the partners. It was a voluntary submission by the parties to the jurisdiction of the arbitrators with regard to the properties of the firm and family properties. Such a dispute could be resolved by the arbitrators by asking the parties to exchange the possession of accommodations according to the allotment of their shares in the partition. Section 12 of the M.P. Accommodation Control Act merely contains a prohibition that no suit shall be filed for eviction on grounds other than those mentioned in sub-section (1) of the said Section. The portion of the award of the arbitrators which directs such exchange of accommodations between the parties does not violate in any manner the provisions of Section 12 of the Accommodation Control Act. The award which is made rule of the court is not a decree of the Civil Court sought by approaching to it under Section 12 of the Act. The existence of one of the grounds under Section 12 was, therefore, not necessary before the arbitrators. There is also sufficient material on record to hold that the occupation of the several portions of the house by the parties was not qua tenant but only under an arrangement by the members of the partnership firm for use and enjoyment of the property of the partners for the business of the firm. The objection on the above score, therefore, fails. The unreported decisions 1979 (2) M.P.W.N. Note 16 and 1979 (2) M.P.W.N. Note 236 on the subject cited by the appellant are distinguishable on the above facts. 37. It is next urged by Shri N. S. Kale, learned counsel for the appellant, that the partnership firm consisted only of two partners and the award of the arbitrators shows that the partnership stands dissolved. It is submitted that in such a situation, the arbitrators committed an apparent illegality in merely directing one of the partners i.e., the opposite party to take out his capital and investments without apportioning the liabilities between them of the firm. The learned counsel very emphatically submits that the award is invalid in law as it violates the provisions of Sections 46 and 48 of the Partnership Act. The learned counsel very emphatically submits that the award is invalid in law as it violates the provisions of Sections 46 and 48 of the Partnership Act. It is submitted that when a firm is dissolved, the partners are only entitled to a share in the residue after payment of debts and liabilities in accordance with the above provisions of the Partnership Act. Reliance is place on S. V. Chandra Pandian and others v. S. V. Silalinga Nadar and others ((1993) 2 SCC 589 = 1993 (1) Arb. LR 386). 38. Shri Ravindra Shrivastava, appearing for the respondents, in reply submits that such objection to the award based on the provisions of Sections 46 and 48 of the Partnership Act was not raised before the lower Court in the memo of objection memo. It cannot, therefore, be allowed to be raised for the first time in appeal. It is submitted that such an objection raised after prescribed period of limitation cannot be allowed. 39. The submission made on behalf of the respondents has great force. An objection regarding apparent illegality or invalidity of the award has to be raised with limitation under Section 30 of the Arbitration Act and if not so raised cannot be allowed to be urged in appeal. 40. Learned counsel Shri N. S. Kale then in his counter reply made an alternative submission based on AIR 1967 SC 1233 , (supra). It is submitted that this Court has a suo motu power to set aside an award on apparent illegality. Reliance for the above proposition is placed on Indian Oil Corporation Ltd. v. Amritsar Gas Service and others ( (1991) 1 SCC 533 = 1991 (1) Arb. LR 97). In that case, a contract of personal service was made enforceable by the decision of the arbitrators contained in the award. It was held by the court to be an apparent illegality as it was contrary to the provisions of Specific Relief Act. 41. We have given a thoughtful consideration to the submissions made and the argument based on the provisions of Partnership Act. It was held by the court to be an apparent illegality as it was contrary to the provisions of Specific Relief Act. 41. We have given a thoughtful consideration to the submissions made and the argument based on the provisions of Partnership Act. In the case of Mandanlal v. Sunderlal, (supra), it has been held as under : "Assuming that the court has power to set aside the award suo moto, that power cannot be exercised to set aside an award on grounds which fall under Section 30 of the Act if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the Limitation Act would be completely negatived." It is, therefore, not open to us to suo moto set aside the award on the above alleged apparent illegality contained in the award as no objection within limitation on that score was raised by the appellant. 42. It is not disputed that the partnership consisted only of two partners. It now stands dissolved both by the act of expulsion of one of the partners and also by the award of the arbitrators. The arbitrators in their award have not specifically stated that the partnership stands dissolved, but reading the award as a whole whereby it distributed the partnership property and returned the capital and investment of the partners, it is clear that the partnership stands dissolved. When a partnership stands dissolved, no partner can claim share of its capital and investment without sharing the liabilities, Section 46 of the Partnership Act reads as under : "46. Right of partners to have business wound up after dissolution. On the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights." The Supreme Court in the case of S. V. Chandra Pandian and others v. S. V. Silalinga Nadar and others, (supra), states the law on the subject thus : "The firm is not a legal entity, it has no legal existence, it is merely a compendious name and hence the partnership property would vest in all the partners of the firm. Regardless of its character the property brought into stock of the firm or acquired by the firm during its subsequence for the purposes and in the course of the business of the firm shall constitute the property of the firm unless the contract between the partners provides otherwise. On the dissolution of the firm each partner provides otherwise. On the dissolution of the firm each partner becomes entitled to his share in the profit, if any, after the accounts are settled in accordance with Section 48 of the Partnership Act. In the entire asset of the firm all the partners have an interest al beit in proportion to their share and the residue, if any, after the settlement of accounts on dissolution would have to be divided among the partners in the same proportion in which they were entitled to a share in profit. Thus, during the subsistence of the partnership a partner would be entitled to a share in the profits and after its dissolution to a share in the residue, if any, on the settlement of accounts. The mode of settlement of accounts set out in Section 48 clearly indicates that the partnership asset in its entirety must be converted into money and from the pool the disbursement has to be made as set out in clause (a) and sub-clauses (i), (ii) and (iii) of clause (b) and thereafter if there is any residue that has to be divided among the partners in the proportions in which they were entitled to a share in the profits of the firm. Since the residue would in the eye of law be movable property i.e., cash, distribution of the residue among the partners in proportion to their shares in the profits would not attract Section 17 of the Registration Act. Since the residue would in the eye of law be movable property i.e., cash, distribution of the residue among the partners in proportion to their shares in the profits would not attract Section 17 of the Registration Act. Viewer from another angle since each and every partner of a firm as an undefined interest in each and every property of the firm and no partner can claim a definite or earmarked interest in one or all of the properties of the firm because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc., it cannot be said unless the accounts are settled in the manner indicated by Section 48 of the Partnership Act, what would be the residue which would ultimately be allocable to the partners." 43. The arbitrators by their award have directed return of capital investments and cash money in the accounts of the firm to the opposite party as partner. The award only makes a mention of the income tax liabilities. It is also not mentioned that no other liabilities were there against the partners. In paragraph (1) of the operative part of the awards there is a mention of the figures contained in the certified balance sheet of the accounts of the partnership firm. Learned counsel for the appellant points out that from the balance sheet it is clear that there were debts liabilities such as loan from others and under the head of 'sundry payments'. The partnership having been dissolved, the debts and liabilities of the firm could have been left to be discharged by the appellant alone. There is, however, no specific mention of the same in the award. It is completely non-speaking on this aspect. It is open to this Court to hold that the award has left undetermined an important aspect of the matter and the illegality to that extent based on the above provisions of the Partnership Act is apparent. As has been held above, since such an objection was not raised under Section 30 of the Arbitration Act, we cannot set aside the award. We have also rejected all other objections based on alleged misconduct of the arbitrators and in their proceedings. As has been held above, since such an objection was not raised under Section 30 of the Arbitration Act, we cannot set aside the award. We have also rejected all other objections based on alleged misconduct of the arbitrators and in their proceedings. We can, therefore, exercise our power under Section 16 of the Act by remitting the award to the arbitrators to pass a supplementary or a fresh award after taking into account the debts and liabilities of the dissolved firm. 44. Section 161(c) of the Arbitration Act, empowers this court to remit an award for reconsideration to the arbitrators if objection as regards illegality of the award is apparent on the face of it. Russel on Arbitration, 20th Edition, at page 396 has dealt with the question of discretion of the court to set aside or remit an award. Commenting on similar provisions in the English Act, learned author says : "The Court has a general discretion to remit an award to the reconsideration of the arbitrator or umpire. This discretion is in general exercisable upon substantially the same ground as will justify the setting aside of an award. Thus, the grounds for remission have been stated as follows : (1) where the award is bad on the face of it; (2) where there has been an admitted mistake and the arbitrator himself asks that the matter may be remitted; (3) where there has been misconduct on the part of the arbitrator; and (4) where additional evidence has been discovered after the making of the award. But these four grounds are merely guides to the exercise of discretion, and are not exhaustive, and whilst the court might hesitate before exercising its discretion to remit in a case which did not come within any one of the four categories, there is a supervisory discretion to remit an award to ensure that there is no possibility of an inadvertent injustice being done." Thus where disputes between partners and their family members were referred to arbitration, and the arbitrator settled several of the matters, clearly and distinctly but omitted to deal satisfactorily with the question of liabilities, this court instead of setting aside the award can remit it for reconsideration in respect of the matter of liabilities unsatisfactorily dealt with. Accordingly, the power of remand is being exercised by us in the ends of justice and because of the apparent illegality mentioned above. 45. It is necessary to notice the decision of the Supreme Court in Smt. Santa Sila Devi and another v. Dhirendra Nath Sen and others ( AIR 1963 SC 1677 ), although it was not referred to or relied on by the counsel for the parties. In the said case it has been held that where the award is concerning of disputes referred to the arbitrator, there is a presumption that the award is complete. In such a circumstance, the silence of the award as regards a particular claim must be taken to be intended as a decision rejecting the claim on that relief. 46. In the instant case, the situation however, is different and distinguishable from the case of Smt. Santa Sila Devi, (supra). We have found that the award contains an apparent legal errors, it is contrary to Section 46 and 48 of the Partnership Act inasmuch as the arbitrators without considering the debts and liabilities of the firm apportioned the capital and investments of the partners. In the partnership, the partners are only entitled to the residue which remains after working out profit and loss. We have held that it is not possible to set aside the award as a whole in the absence of any valid objection on the above score taken by the appellant within limitation. We, therefore, consider it fit to submit the award for re-decision of the subject matter by the arbitrators. 47. Consequently, the appeal only partly succeeds. The objections to the award for its setting aside stands rejected and the order of the court below to that extent is maintained. This court, however, directs that the award shall be remitted to the arbitrators for their reconsideration in the light of the observations made above. The arbitrators shall send due notice to the parties, re-hear them and pass a supplementary or a fresh award clearly mentioning their decision with regard to the debts and liabilities of the firm and shall resolve the disputes between them in accordance with law. 48. The record of this case be sent to the court below. The arbitrators shall send due notice to the parties, re-hear them and pass a supplementary or a fresh award clearly mentioning their decision with regard to the debts and liabilities of the firm and shall resolve the disputes between them in accordance with law. 48. The record of this case be sent to the court below. The court below shall send due intimation to the arbitrators for reconsiderations of their decision and remit them the award with directions to reconsider it with due regard to outstanding debts and liabilities of the dissolved partnership firm. The arbitrators shall be granted three months' time to make a fresh or supplementary award from the date of communication of the order of this court to them. The arbitrators shall submit their fresh decision or award to the lower court and then the proceedings thereafter shall be conducted in accordance with the provisions of the Arbitration Act. 49. The trial Court shall make the record of the arbitrators and the order of this court available to the arbitrators directly or through the parties. The arbitrators shall re-submit their award within the period of three months mentioned above. In the circumstances, the parties are directed to bear their own costs of this appeal. This appeal has been listed today for delivery of Judgment. Shri Sripal Jain appearing for the respondents 1 and 2 brings to our notice that a cross objection to the appeal was filed by respondents 1 and 2 claiming interest at the rate of 18% per annum, from the date of decree till payment. By main order passed in the appeal we have remitted the award for re-consideration by the Arbitrators. For the aforesaid reason, we do not find any ground to increase the rate of interest from 6% to 18%. The cross objection also, therefore, stands rejected.