TMI Blog1963 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ose between his several heirs but an agreement dated January 31, 1933 these were settled By then one of the sons the husband of the 5th respondent had died leaving a widow (the 5th respondent) and these viz., the widow, the 7 sons and the widowed daughter-in-law entered into this agreement by which the properties left by the deceased were partitioned among them Broadly stated, the agreement specified the shares of the 9 parties thereto as equal i.e., one ninth each, with however the two widows being allotted their respective shares for their life as for their maintenance. There was also a provision that in regard to a glass factory the 2nd appellant was to have a 5 annas share, the rest of the member dividing the balance of the II annas (presumably because the 1st appellant's money went in for the initial capital for starting the concern) till certain specified contingencies occurred. Fresh disputes however, arose between the parties and by a formal agreement dated May 11, 1953, they set out those disputes between themselves and agreed to refer the same to the sole aribitration of Dr. Radha Binode Pal-an eminent lawyer and jurist of Calcutta. As the terms of reference have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the arbitrator but the main ground on which the award is impugned is that it is incomplete. The award is a long document and purports to decide all the disputes which -had been referred to him. It does not set out the arguments or even the contentions urged by the parties in regard -to any specific matter or even the reasons for the particular decisions recorded but corresponds in form to what might for convenience be termed a decree in a civil suit. The award was filed into Court on June 29, 1955, and thereupon the appellants made an application for setting it aside on various grounds the principal of which was, as already indicated, that the award was incomplete, in that all the disputes which had been referred for arbitration had not been disposed of by it. The application came on for hearing before a learned Single judge on the original side and it was dismissed on May 26, 1956, the learned judge directing a decree to be passed in terms of the award. The appellants preferred two appeals one from the order refusing to set aside the award and the other from the decree in terms thereof. These were heard and disposed of by a common judgment dated January 29, 1957 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral items of property were specified in the award and the division effected was on the basis of this valuation. Learned Counsel urged that the arbitrator failed in his duty in not valuing the properties himself but had adopted the values suggested by one or other of the parties. We shall now deal with these points. As however, we consider that it is only the 1st of the above points about the incompleteness of the award that merits any consideration and that the other two have really no substance and it would be convenient first to dispose of the second and the third of the above points. The trust created by the award to which point No. 2 relates is in the following terms. Clause 13 of the award which the relevant clause runs: That the land at Ketugram, Katwa in the District of Burdwan is allotted to Sri Dhirendra Nath Sen, in trust for selling the same to meet the costs and charges of filing the award together with minutes of the arbitration proceedings, depositions and documents to be filed in court with the award and to distribute the balance if any, left after meeting the said costs and charges, equally amongst himself and the 6 other sons... and then the award p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of Rabindra Nath Sen and Phanindra Nath Sen were fraudulently made in order to defraud me. I claim for an ad judgment that the said leases are void and I pray for accounts, against the said alleged lessees and an award for my share of the profits on accounting. The arbitrator decided in paragraph 9 (c) of the award that the alleged lease of the factory to Rabindra Nath Sen to be declared void and to be of no binding effect on the Company or on the shareholders. The award contained, however, no further direction ordering or refusing to order Rabindra Nath Sen to account for the profits with regard to this lease declared void. The point that is now urged is that the award is incomplete, in that it has not followed up this declaration or invalidity of the lease by making a consequential order for accounting or by rejecting the claim of the appellants to the accounting and for their share of the amounts found due on the taking of such accounts. The learned Single judge on the original side as well as the appellate Bench rejected this objection on the authority of an English decision in Harrison v. Creswick ((1853) 118 E. R. 1254.), where Parke, B., delivering the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that a rejection of that claim could not be inferred from the mere failure of the arbitrator to deal with it. Learned Counsel pointed out that a case of a cross demand or a cross claim with which Parke, B. was dealing was quite different from an independent claim such as that for accounting made by the appellants in the present case, for where a sum is decreed to a plaintiff it necessarily involves the acceptance or rejection of the cross claim made by the defendant but the position is different where the claim made stands on independent footing. Before dealing with this point it is necessary to emphasize certain basic positions. The first of them is that a Court should approach an award with a desire' 'to support it, if that is reasonably possible, rather than to destroy it by calling it illegal (See Salby v. Whitbread and Co., ([1917] 1 K. B. 736, 748.). Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter separately, but can deliver a consolidated award. The legal position is clear that unless so specifically required an award need not formally express the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons: (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constat, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, therefore, has to be repelled. The next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either The award had declared the shares' of the parties in the Glass Company and by cl. 9 (b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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