D.N.Roy, J. - (1.) IN a suit for the dissolution of partnership and for the taking of accounts filed by the plaintiff-respondent agajnst the defendant-appellant, the matter in dispute was referred to the arbitration of Sri Brij Nath Mittal, an advocate practising at Meerut. The agreement of reference, inter alia, provided that the arbitrator will be empowered to decide the points at issue between the parties after tile taking of evidence which the parties may choose to produce before him, or without taking evidence but on his own personal knowledge, and the award which he would thereafter make will be binding upon the parties. It further provided that it will not be incumbent upon the arbitrator to reduce evidence into writing. It also provided that he may decide the matter in any manner he thinks fit. The terms of agreement, therefore, clothed the arbitrator with full powers to decide the points in controversy between the parties (a) after the taking of evidence, or (b) on his personal knowledge. Those terms cannot be interpreted to mean that the arbitrator could decide the points in controversy, though not on personal knowledge but on taking evidence of one party, or upon contacting one party, behind the back of the other. IN fact the true import of the agreement of reference had rightly been understood by the arbitrator when he expressed in the opening paragraph of his award that "I have been given full powers to decide the points in controversy between the parties after taking evidence or on my personal knowledge."
(2.) IT appears from the award that proceedings were held before the arbitrator on the 21st of November, 1951, 23rd of November, 1951, and finally on the 24th of November, 1951, when the parties were present in person and were represented on some of the hearings by their counsel. Before the arbitrator genuine efforts were made to arrive at a settlement and although in the beginning, to quote the words of the arbitrator, "there was acute controversy on almost all the points", the parties ultimately agreed that the business together with all its assets and liabilities including the rights with regard to the site belonging to the P. W. D. and the land taken on lease from Lala Paras Ram under the lease dated the 15th of February, 1946, be held in future by one of the parties only and the other be paid compensation in cash after fixing a reasonable valuation over the rights of one party including the right in the good-will of the business. The arbitrator, therefore, in order to arrive at a proper valuation individually, but separately, consulted the parties and ascertained their respective viewpoints; and before him it had first been suggested on behalf of the plaintiff that this should be done by calling open bids. The arbitrator, however, did not approve of that suggestion as, according to him, it necessarily involved unhealthy competition and there was risk of unnecessary inflation of the price. The arbitrator, therefore, secretly took the offers or bids by the two contending parties. The offer that was made by the plaintiff was an offer of Rs. 30,000/- plus the value of the goodwill of the business which may be fixed upon by the arbitrator. The valuation or bid that had been made by the defendant was in the sum of Rs. 21,000/-. The arbitrator did not disclose the offer of the one to the other. He, however, as a result of the inspection of accounts and after ascertaining the viewpoints of the parties in the manner stated above, came to the conclusion that a sum of Rs. 25,500/- will be paid by the defendant Banwari Lal as compensation as half share of the plaintiff as heir of Pandit Murlidhar in the business, including his rights in the site of the petrol pump and the land held underlease from Lala Paras Ram and the constructions and all accessories and stock-in-trade and all articles as found by the commissioner and entered by him in the list prepared in the suit and all the outstandings due to the firm. By the award he further directed that the plaintiff will no longer be liable for any of the liabilities of the firm and the income-tax already assessed or that may be assessed on the income of the preceding year and the rent due from the defendant and all other taxes or payments to be made will be paid and made by the defendant Banwari Lal. He further held that the goodwill of the business will henceforth belong to the defendant who will be entitled to carry on the business in the name and style of Banwari Lal and Company or any other name which he may choose to adopt. Certain other minor suggestions had also been made by him in the award. Objection was taken against the award on the ground, inter alia, of legal misconduct of the arbitrator. The court below set aside the award holding that there was legal misconduct on the part of the arbitrator. Aggrieved by that order the defendant has come up in appeal to this Court. The legal misconduct which was alleged against the arbitrator was that he took the offers or bids from the parties secretly, each party's bid having been given in the absence of the other; and it was contended on behalf of the plaintiff that even though the petition for reference to arbitration empowered the arbitrator to decide the matter in either of the two ways, namely upon the taking of evidence or on his personal knowledge, it did not empower him to make secret inquiry from the parties. It was further contended on behalf of the plaintiff that the arbitrator acted arbitrarily and capriciously by throwing away the offer or the bid that had been made by the plaintiff, and, finally, in coming to the conclusion that the plaintiff's half share in the business and in the partnership assets would reasonably be valued at Rs. 25,000/-. On that part of the case the trial court was of the view that the valuation reached by the arbitrator was not really perverse. And that finding was based largely upon the consideration that the plaintiff had tentatively valued his claim in the plaint at Rs. 6,100/- and the money which will now be awarded to him under the award itself was far more than that value and was several times of the approximate value put by the plaintiff in the plaint.
(3.) IT has been contended by the defendant appellant in this Court that the trial court entirely misunderstood the procedure adopted by the arbitrator, which had been adopted by him with the consent of both the parties, and there was nothing to be disclosed to the other or to be explained by the other party and since the idea of auction between the parties had been abandoned by agreement, there was no point in one party knowing the figure mentioned by the other.;