K.B.Asthana, J. - (1.) THIS is a defendants' appeal against whom a decree for recovery of a sum of Rs. 6,043/- with proportionate costs, pendente lite and future interest has been passed. The plaintiff respondent Lala Panna Lal filed a suit against the defendants appellants and one Dr. Sheo Shankar who is not an appellant before this Court on the allegation that the plaintiff carried on business in the name of Basant Lal Panna Lal and the defendants carried on the business in the sale and purchase of Bins and cigarettes through their firm named Nanak Chand and Sons, that the defendant firm used to take money in cash as loan from the plaintiff at the interest of annas -/12/-per mensem and in lieu of that used to pawn their Bins and cigarettes with the plaintiff. It was further alleged that between October, 1946, and the beginning of December, 1947 the plaintiff had advanced loans amounting to Rs. 21,931/15/- to the defendants; that the defendants paid a sum of Rs. 17,017/- towards the loan which were duly credited in the name of the defendants in the account books of the plaintiff's firm and a sum of Rs. 4914/15/- was still outstanding against the defendants which despite repeated requests and demand the defendants failed to pay, hence the suit.
(2.) DR. Sheo Shankar one of the defendants in his written statement pleaded that he had been carrying on the profession of a medical doctor in Hathras and he had no concern with the joint family firm styled as Nanak Chand and Sons dealing in Bins and cigarettes. He further denied that he was a member of the joint family which carried on the business of Biris and cigarettes. The other defendants denied the plaintiff's claim and the defence in the main was that they did not take any loans as such from the plaintiff and the transactions were not done in the manner as alleged by the plaintiff. It was further pleaded that the entries in the account books of the plaintiff were wrong and in fact Biris and cigarettes of a larger value were pledged with the plaintiff's firm than the money advanced by them on that security and nothing was due to the plaintiff. It appears that during the pendency of the suit the parties referred the dispute to arbitration after making an application to the Court on 17-3-1949. Lala Ganga Saran Bajaj, Sri Ishwari Prasad Bajaj and Sri Ramnath Poddar, residents of Hathras were appointed as Panches and the arbitrators gave their award dated 5-9-1949 by which a decree against the defendants, namely, Dr. Sheo Shankar, Laxmi Narain, Ram Narain and Babu Lal Sharma was passed for a sum of Rs. 3412/13/3- The award further provided that the plaintiff could utilize Rs. 850/- which were in deposit in Court representing the sale price of Biris and the balance of Rs. 2562/13/- could be realised from any of the four defendants. It was also provided in the award that no interest was to be charged on the decretal amount and the decretal amount could only be realised from the ancestral property belonging to the joint family and not from the separate assets or the property of Dr. Sheo Shankar.
(3.) ALL the four defendants against whom the decree was passed by the arbitrators and the plaintiff filed objections to the award. The grounds on which the award was challenged mainly attributed misconduct on the part of the arbitrators in the proceedings carried on by them. It is not necessary for me to mention those grounds in detail or to express any opinion on the same. The proceedings of the Court show that on 23rd November, 1949, Sri Dharampal Varshiny, counsel of the plaintiff, Sri Mahendra Prasad, counsel for the defendants numbers 3 and 4 and Sri Ram Narain Misra, counsel for defendant No. 2 stated that the arbitration award be cancelled. On 25th November, 1949, Sri Mohammad Is-mail counsel for defendant No. 5, stated that he had no instruction from his client in the matter. On the same day the learned Civil Judge passed an order which is paper No. 8-A.2 on record and which is to the effect that all parties want that award should be set aside and he accordingly set aside the award and fixed 7th March 1950, for further proceeding in the suit. The trial in the suit then proceeded before the learned Civil Judge and after a consideration of evidence on record he exempted Dr. Sheo Shankar defendant No. 2, and passed a decree for a sum of Rs. 6,043/- with proportionate costs and pendente lite and future interest at 6 per cent per an-num against defendants numbers 1, 3 and 4. The learned Judge further directed that defendant No. 5 Babu Lal Sharma who was a surety was liable to the extent of Rs. 2500/- out of the amount of Rs. 6043/- decreed. The suit against Dr. Sheo Shankar defendant No. 2 was dismissed.;