Mukerji, J. - (1.) THIS is a first appeal from order dismissing the objection, of the appellants to an arbitration award. On the 3rd of August 1951 a reference to arbitration was made by Sapattar Singh as party no. 1 and Radha Kishan and Tegh Singh as party no. 2 for the settlement of certain disputes that had arisen between them in respect of a brick kiln business, to the arbitration of certain named arbitrators. An award was made on the 11th of November 1951. On the 21st of November 51 Sapattar Singh filed an application for calling for the award from the arbitrators and making it a rule of the Court. Notices were issued and a written statement was filed on behalf of the appellants to the effect that there was no dispute between them and Sapattar Singh, because the real person who was interested in the brick kiln business and with whom there was a dispute of Sapattar Singh was one Deo Raj and that the appellants were only his karkuns and, therefore, there could be no dispute with them. The other question that was raised was that the appellants had no notice of the arbitration proceedings and consequently they could not make any proper appearance before the arbitrators. The appellants also contended that they had in fact made no reference to arbitration and that the arbitration agreement that was produced in the case had been forged on a blank piece of paper on which the appellants' signatures or thumb-marks had been obtained earlier.
(2.) THE controversy that arose in the court below, therefore, centered round the following Questions: (1) Whether there was, in fact, a reference to arbitration? (2) Whether the reference by Radha Kishan and Tegh Singh in respect of the dispute could be made because they were not interested in the brick kiln business....the real interested party being Deo Raj? (3) Whether there was misconduct On the part of arbitrators which made the award unenforceable? (4) Whether the award was in the excess of the authority given to the arbitrators by the deed of reference? The court below has found that there was a dispute which was referable to arbitration. The Court below has further found that there no misconduct on the part of the arbitrators which could justify the setting aside of the award. On the evidence the court below was satisfied that the appellants had notice of the arbitration proceedings and that in spite of such notice they deliberately kept out of arbitration. The court below has also come to the conclusion that to the extent that the award created a charge on the bricks in the kiln the award was in excess of the powers of the arbitrators. The court, therefore, modified the award by separating the portion that it thought was in excess of the authority of the arbitrators from the portion which was within their authority. The two portions having been separated the court below enforced that part of the award which was within the authority of the arbitrators by making it a rule of the Court.
(3.) ON appeal Mr. Brij Lal Gupta has raised two questions in the main. First, that the arbitration agreement was bad in law because there was, in fact, no dispute, as there could not be, in his view of the matter, because Radha Kishan and Tegh Singh were karkuns of Deo Raj and the dispute really was with Deo Raj. Mr. Gupta stated that the court below has erred in law in not permitting him to raise this question and to give evidence on it. The Court below took the view that the appellants could not lead evidence to show that they had not referred the dispute to arbitration. The learned Judge has precluded the appellants from giving this evidence on the ground that such evidence was barred by the provisions of Section 91 of the Indian Evidence Act. Mr. Gupta's contention was that this View of the learned Judge was wrong. Mr. Gupta relied on a single Judge decision of this court in Babu Ram v. Lala Ram, AIR 1929 All 415 (A); where Ashworth, J. held that Section 91 of the Indian Evidence Act does not apply to an agreement to refer to arbitration because such an agreement was neither a contract nor a grant nor other disposition of property. We are unable to agree with this decision for in our view an arbitration agreement is a contract within the meaning of Section 91 of the Indian Evidence Act. ( Section 10 of the Indian Contract Act states that agreements are contracts for it says: "All agreements are contracts if they are made by the free consent of the parties competent to contract for lawful consideration and with a lawful object, and are not hereby expressly declared to be void....." It was nobody's contention that this agreement was not for lawful consideration or that the object of this agreement was unlawful or that the parties were not competent to contract or that this agreement was expressly declared void by some law. The question whether the agreement had been executed with free consent of parties was never raised though it was alleged that the agreement had, in fact, not been entered into which was a different question from the question that the agreement had been induced by fraud or coercion. An arbitration agreement has been defined in Section 2 (a) of the Arbitration Act in these words: "Arbitration agreement means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not;";