S.B. Capoor, J. - (1.) THIS Letters Patent appeal is directed against the judgment dated the 5th October, 1962, of a learned Single Judge of this Court whereby he allowed an appeal at the instance of certain of the creditors, Shrimati Kartar Devi and others (respondents 2 to 8) against the judgment of Tribunal under the Displaced Persons (Debts Adjustment) Act, 1951, (Act No. 70 of 1951), hereinafter to be referred to as the Act. These creditors, that is, respondents. Nos. 2 to 8 -, have also filed a Letters Patent Appeal No. 6 -D of 1963 against the same judgment claiming certain further reliefs against the debtors. Both these appeals will be disposed of in the course of the following judgment.
(2.) IT is necessary for the proper understanding of the dispute between the parties to state the facts in some detail. There used to be published at Lahore, prior to the partition of the country, a film, magazine in Urdu, that is, Chitra Weekly. The two partners in that concern were Vidya Parkash Pun and Din Dayal Bhatia, and one of the terms of the partnership deed was that the death of either of the two partners would not automatically result into dissolution of partnership but that heirs of the deceased partner would continue to be treated as partners. Din Dayal Bhatia died at Lahore on the 16th April, 1946. leaving behind his widow Shrimati Kartar Devi (respondent No. 2) and six minor children (respondents No. 3 to 8). On the 10th May, 1946, a fresh partnership deed was drawn up between the petitioner on one side and the respondents on the other. Kartar Devi was not happy with the terms of the partnership and on the 28th January, 1947, it was decided to dissolve the partnership. In this connection, a deed (Exhibit P. 6) was executed which describes itself as a deed of reference to arbitration. Raj Lal and Kala Ram were appointed as the arbitrates to carry out the agreement between the parties, which briefly was to the effect that the business and good will of the partnership was to be auctioned and Vidya Prakash Puri on one side and Shrimati Kartar Devi on the other were to give bids. The party, who gave the highest bid was entitled to get the business along with its good will on payment of hall of the amount bid by him to the other party. On the very next day, that is, 29th January, 1947. the auction was held but before the bids were made, parties vide Exhibit P. 2 entered into an agreement that the highest bidder at whose bid the bargain was struck would pay twenty -five per cent of the half of the bid to the other party on the spot, the balance to be paid within two months, that is, ending on the 29th March, 1947. If the payment was not so made, the next highest bid would stand; the party who made the next highest bid would pay the full amount of his bid to the other party on the 30th March, 1947 and the amount already received by him would be forfeited to him. The bid was on the basis of the audited accounts as on the 31st December, 1946. The bidding then started and the final bid was that of Vidya Prakash Puri at Rs. 2,00,000/ - The bid immediately preceding was that of Kartar Devi at Rs. 1,00,000/ -. Exhibit P. 4 shows that the bid of Rs. 2,00,000/ by Vidya Prakash Puri was accepted by Kartar Devi, and the former gave a cheque for Rs. 25,000/ - favouring Shrimati Kartar Devi and the balance was to be paid as above. The parties as well as both the arbitrators have signed Exhibit P. 4. There is no dispute with regard to the sum of Rs. 25,000/ - which had been duly received by Shrimati Kartar Devi and had been retained by her on behalf of respondents 2 to 8. On the 27th March. 1947, Vidya Parkash Puri made an application (Exhibit R.I) under section 14 of the Indian Arbitration Act praying that the arbitrators be called upon to file their award. He also on the 29th March, 1947, made a deposit in the Court of Rs. 73,936/15/ - and a telegram (Exhibit P. 8) was despatched by him to Shrimati Kartar Devi informing her that the above application had been made and the amount specified above deposited in Court. On the 26th June, 1947, Vidya Parkash Puri gave an application (Exhibit R. 2) in the Court of Dawan Chaman Lal Puri, Subordinate Judge, Lahore, where the arbitration matter was pending, alleging that the award had not so far been made by the arbitrators, one or whom, that is, Kala Ram, had refused act and the period prescribed for making the award had expired; submitted that in these circumstances he did not wish to proceed with the application under section 14 of the Indian Arbitration Act and that he withdrew the same. The Subordinate Judge, who had issued notice on the application under section 14 to the respondents, dismissed that application in view of the contention advanced by Vidyat Parkash Puri's counsel that his client was withdrawing the application unconditionally. He also ordered on the same date, that is, 26th June, 1957, that any amount deposited by the applicant in the case may be withdrawn by him (Exhibit R. 3). In consequence of this order the entire sum deposited by Vidya Parkash Puri was withdrawn by him. It was after this and on the 7th July, 1947, that the arbitrators put in their award in the Court.
(3.) THEN came the partition of the country and migration of the parties to the case from Lahore to Delhi. Shrimati Kartar Devi on the 31st March, 1948, instituted a suit against Vidya Parkash Puri claiming the return of Rs. 73;936/15/ - which according to her was her money and withdrawn illegally by him from the Court. In the alternative she prayed for dissolution of the partnership and rendition of accounts. While this suit was pending Vidya Parkash Puri instituted his application under section 5 of the Act, which has given rise to these two appeals. In this application he maintained that he was a displaced person from the territories now in West Punjab. A reference was made, to, the partnership pertaining to the Chitra Weekly and it was said that on account of the award of the arbitrators, respondents Nos. 2 to 8 were liable to pay to the petitioner a sum of Rs. 95,000/ -, which they had not paid, but have instead lodged a suit claiming Rs. 73,189/ - against the petitioner, which was totally false and unfounded. He also pointed out that he had filed a separate claim under section 10 of the Act against respondents - Nos. 2 to 8 for the recovery of Rs. 95,000/ -. In the schedule showing particulars of the debts said to be owing by the petitioner he also included certain debts due to other creditors, that is, Rbshan Lal Malhotra, Dewan Rajinder Kumar Chopra, Raghunandan Lal Marwaha, Manohar Lal Kochar and Ram Lal Dhamija. The respondents, who really opposed the petition, were respondents No. 2 to 8 and the learned Subordinate Judge constituting the Tribunal framed the following issues: (1) Does any debt exist in favour of respondents 2 to 8 ? If so, to what amount ? (2) Is this application not maintainable ? (3) Whether any other debt is due from the petitioner ? (4) What is the paying capacity of the applicant ? (5) Relief.;