Case: Jivarajbhai Ujamshi Sheth And Others Vs. Chintamanrao Balaji And Others

Shah, J. (For self and Sarkar, J.)1. Vrajlal Manilal and company, a firm consisting originally of four partners (1) Manilal Anandji, (2) Jivrajbhai Ujamshi Sheth, (3) Punjabhai S. Patel, and (4) Chintamanrao, has been doing business of manufacturing bidis at Sagar and Delhi since 1944. From time to time fresh partnership deeds were executed readjusting the shares of the partners admitting new partners and adjusting the shares of the partners. In 1954 Manilal Anandji retired from the firm and on January 27, 1955, Punjabhai S. Patel died.2. On February, 16, 1956, a fresh deed of partnership was executed. The firm then consisted of eight partners - Jivraj and his two sons being entitled in the aggregate to annas -/4/3 share in a rupee in the profits, Chintamanrao and his two sons to annas -/ 7 / 6 share in a rupee, and the two sons of Punjabhai S..Patel to the remaining annas -/4/3 share. By paragraph 7 the books of account were to be maintained by the managing partner, the financial year of the firm being from Diwali to Diwali, and profits and losses were to be ascertained at the close of the year and a copy of the balance-sheet with profits and loss statement was to be supplied to each partner, and if no objection regarding the accounts was raised within four months from the end of the year, the accounts were to be deemed conclusive and binding unless vitiated by fraud. By paragraph 12 it was stipulated that a partner desiring to retire from the partnership may, unless the other partners agreed to his retirement otherwise, do so after giving six months notice to all the partners in writing terminable at the end of the year i.e., the Diwali immediately following the date of the notice Paragraph 13 provided :"In case of retirement of any partner the valuation of the Firm will be made on the following basis for the purpose of settling the account of the retiring partner :-(a) Goodwill of the Firm : - That is, right to use the trademarks, trade labels and the name of the Firm.In making the valuation of the above the net profits of the last five years will be taken as the value of the Goodwill of the Firm.(b) Outstandings, Udhari (Recoveries) : That is loans and debts outstanding against persons other than partner will be calculated at 85 per cent. of the book value of the Firm.(c) Stock of Raw Materials:- That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all such stock and moveables, thus valued shall be given to the remaining partners.(d) Immovable Property: - Such as buildings, godowns, gardens, lands etc. will be valued at the purchase price or their book value in the books of the Firm as the case may be, and all these shall be given to the remaining partners. "Paragraph 16 incorporated a clause for reference of disputes between the partners relating to the business or dissolution of the Firm to arbitration.3. In April 1958 Jivraj and his two sons -appellant in this appeal - desired to retire from the partnership, and a deed of reference was executed on April 16, 1958, appointing Ambalal, Ashabhai, Becharbhai, Somabhai and Chaturbhuj Jasani as arbitrators to decide the dispute. It was recited in the deed of reference that since Jivraj and his two sons had expressed a desire to retire and the remaining five partners had agreed to take over the entire business of the firm, it was "necessary to effect the final account of the retiring partners with regard to the matters mentioned below as far as possible, according to and taking into consideration the terms and conditions of the Partnership Agreement.1. Goodwill of Trade Mark.2. Property.3. Credits (Udhari).4. Dead-stock.5. Stock-in-trade i.e. the raw material or the finished goods invested in the business.6. Other matters connected with these transactions.7. Profit and Loss Account.8. The Receipt and Payents account of the amounts of the partners. "By paragraph 6 it was provided that the firm shall be continued by the remaining five partners and that those five partners shall make full payment to the retiring partners Jivraj and his two sons of such amounts, in such manner, and on such conditions, as shall be decided upon,by the arbitrators. Paragraph 7 set out the powers exercisable by the arbitrators in the matter of calling for production of account books, and documents and other information from the parties.4. The deed of reference was subsequently modified, and the panics agreed that the reference be "carried out by the sole arbitrator, Shri Jasani". Pursuant to this modified agreement, Jasani entered upon the reference and made his award on January 9, 1959. By his award he fixed the value of the goodwill of the entire firm at Rs.32 lakhs including in that amount the "depreciation and appreciation of the property, dead-stock and dues to be recovered". He also fixed the profit for the broken period of Samvat year 2014 from the commencement of the year till April 19, 1958 at Rs. 2,80,000/ - and after adjusting the personal accounts of the three retiring partners awarded to Jivraj Rs. 3,46,223.58 nP., to Amratlal son of Jivraj Rs. 4,04,519.99 UP., and to Bhagwandas son of Jivraj Rs. 3,86,019.14 nP., and directed that the ownership over the assets of the firm i.e. property - moveable and immoveable Trademark, labels, stock-in-trade, long-term leases and contracts etc. shall remain with the remaining partners subject to the liabilities of the firm, the retiring partners not being responsible for the liabilities of the firm, nor having any interest in the firm or its business. This award was filed in the Court of the Additional District Judge, Sagar, under S.14 (2) of the Indian Arbitration Act, 1940.5. Chintamanrao and his sons then applied for an order setting aside the award on diverse grounds. In this appeal by the retiring partners, two heads of objections only survive for determination and we propose to refer only to those two heads, viz :(1) That the arbitrator in making his award travelled outside his jurisdiction delimited by the agreement of reference in that in fixing Rs. 32 lakhs as the value of the divisible assets of the firm he included therein the depreciation and appreciation of the property, dead-stock and outstanding, which he was by the terms of the reference incompetent to include.(2) That the arbitrator was guilty of legal misconduct in that he had in the course of arbitration proceedings admitted in his record a statement of account prepared by Jivraj and his sons without the knowledge of the other partners and without giving them an opportunity to make their submissions thereto.6. The retiring partners resisted the petition to set aside the award and submitted that they were entitled to have the assets of the firm in which they had a share, fixed at an amount much in excess of Rs. 32 lakhs and that the arbitrator had not overstepped his jurisdiction in fixing the value of the goodwill at Rs. 32 lakhs, and that the statement of account referred to by the applicants was prepared under the directions of the arbitrator and in his presence and it was admitted in the record of the arbitrator to the knowledge of the remaining partners who had assented thereto.7. The Trial Court upheld these and certain other objections, and set aside the award. The High Court confirmed the decision of the Trial Court, in so far as it related to the two objections hereinbefore set out.8. The question which we propose to consider first is: whether in making the "valuation of the firm" for determining the share to be paid to the retiring partners, did the arbitrator overstep the limits of his authority under the agreement of reference? It may be recalled that by Cl.6 of the arbitration agreement the remaining partners had to "make full payment to the retiring partners of such amount as may be decided" by the arbitrator. But in determining the amounts to be awarded to the retiring partners, the authority of the arbitrator was restricted. He had, in determining the amounts due to the retiring partners, to take "final accounts with regard to the matters" set out in Cl.4, "as far as possible, according to and taking into consideration the terms and conditions of the Partnership agreement". By this direction the clauses of the partnership agreement were incorporated in the agreement of reference. The "final account" of the retiring partners with regard to the eight matters specified in Cl. 4 was undoubtedly to be made, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement. The language used in the deed of reference is of compulsion, not of option: it means that if there be in the partnership agreement any term or condition, which deals with any particular matter of which an account was to be taken under Cl.4 of the agreement of reference, it has to be strictly followed. Use of the expression "as far as possible" did not confer any discretion upon the arbitrator to ignore the terms and conditions of the partnership agreement. In paragraph 13 of the partnership agreement, in making "valuation of the firm" for the purpose of settling accounts, the value of the goodwil, the outstandings, stock if raw material and moveable and immoveable property had to be taken as directed therein. In the matter of valuation of the goodwill of the firm, therefore, no discretion was left to the arbitrator: the value, of the goodwill had to be the aggregate of the net profits of the last five years. Debts due to the firm from persons other than partners had to be "calculated at 85 per cent of the book value of the firm". In respect of the stock of raw materials and other moveable property the "book value in the books of the firm" had to be accepted by the arbitrator and in the case of immoveable property such as buildings, godowns, gardens, lands, etc the book value in the books of the firm" was to be accepted, and if none such was available the purchase price as mentioned in the books was to be accepted. In all these matters the arbitrator had by Cl. 4 of the arbitration agreement to make the final account of the retiring partners according to and taking into consideration the terms and conditions of the partnership agreement and had no option.9. It is necessary to remember that the partnership agreement does not grant to a retiring partner a share in the aggregate of the four items mentioned in as. (a), (b), (c) and (d) of paragraph 13 i.e. good will of the firm outstandings, stock of raw materials including moveable and immovable property. The partnership agreement merely provides that the "valuation of the firm" shall be made as set out therein for the purpose of settling the account of the retiring partners i.e. in ascertaining the amount due to the retiring partners valuation of the assets in Cls. (a) to (d) of paragraph 13 shall be made in the manner set out therein. The arbitrator was therefore bound to adopt the valuation prescribed by the partnership agreement, but that is not to say that retiring partner was entitled to a share equal to the aggregate of the values of the four items mentioned in paragraph 13. It is necessary to emphasize this matter because on behalf of the retiring partners a considerable argument was advanced before us on the assumption that they were entitled to a share equal to the aggregate of the values of the four items of property mentioned in paragraph 13 of the partnership agreement, and that by the method of valuation adopted by the arbitrator they were awarded much less than what they were under the partnership agreement entitled to. Paragraph 13 merely prescribes the valuation in respect of four out of the items which had to be considered in ascertaining the "valuation of the firm". The phraseology used in paragraph 13 in the opening part of the paragraph makes it clear beyond all doubt that the valuation of the firm had to be made on the basis specified for the purpose of settling the account of the retiring partner. The specific items in paragraph 13 do not prescribe any method of valuation of the debits and liabilities of the firm, but the debts and liabilities must be taken into account in assessing the value of the share of the retiring partners. The arbitrator had to make a valuation of the firm i.e. of all the assets of the firm and of the debts due by the firm and thereafter to settle the account of the retiring partners.10. We may now turn to the award made by the arbitrator. The dispute between the parties has to be resolved on a true interpretation of the following clause :"I assess the value of the goodwill at Rs. 32 lakhs. This amount includes the depreciation and appreciation of the property, dead stock and dues to be recovered."(We have taken this as the correct rendering into English of the original award which is in Hindi. It is accepted by both the parties before us as a true rendering).11. The arbitrator has, as he has observed in his award, taken only the value of the goodwill, in determining the amounts to be allotted to the retiring partners, and has not expressly referred to the valuation of the three other items, viz. the outstanding, the stock-in-trade and moveables and the immoveable property mentioned in paragraph 13 of the partnership agreement. Counsel for the retiring partners urged that on the admission made by Chintamanrao, the value of the goodwill alone was Rs. 21,70,650/10/-, and if the value of the immoveables, stock-in-trade etc. and outstandings be added thereto, the aggregate would considerably exceed Rs.32 lakhs. But this argument is founded on the fallacious assumption that the debts and liabilities of the firm have to be ignored in determining the shares of the retiring partners. Counsel for the respondent submitted that in substance the goodwill had alone to be valued, by the arbitrator, for the property, moveable and immoveable, stock-intrade and the outstandings of the firm were approximately equal to the aggregate of the debts and obligations of the firm. Reliance in this behalf was placed upon a balance-sheet Ext. A-13 of the assets and liabilities of the firm, showing the financial position of the firm on April 16, 1958, and the value of the tangible assets, such as the stock of raw materials moveable and immoveable property and outstandings, according to the balance-sheet, was approximately equal to the debts and liabilities of the firm.12. But it is not necessary for as to decide whether the submission of the respondents is correct. The arbitrtor has in his award stated that Rs. 32 lakhs is the value of the goodwill alone, and for some reason not disclosed by him he has not valued the other assets. He has also not disclosed in his award how he has arrived at the valuation of Rs. 32 lakhs. One thing, however, stands out prominently in the award, that in assessing the value of the goodwill, he has included the depreciation and appreciation of the property, dead-steak and the outstandings. The arbitrator could undoubtedly make a lump sum valuation of the firm in the award made by him. He was not obliged in the absence of a direction in that behalf to set out in his award the valuation of the different components which aggregated to the lump sum. The arbitrator had to "value the firm, " and in doing so to abide by the specific directions, but he was not obliged to set out in the award separate valuations of all or any of the items mentioned in para 4 of the deed of reference, or in paragraph 3 of the partnership agreement, nor to set out the extent of the debts and obligations assessed by him.13. What then is the effect of the inclusion by the arbitrator in the valuation of Rs. 32 lakhs, of the depreciation and appreciation of the property, deadstock and dues to be recovered? Diverse arguments were submitted by Counsel for the appellants in support of the plea that the inclusion of what is called the depreciation and appreciation in respect of the various items does not amount to overstepping the limits of the jurisdiction of the arbitrator. It may be reiterated that the powers of the arbitrator were, by the terms of Cl.4 of the deed of reference, clearly restricted. He was "to take final account of the retiring partners with regard to the matters mentioned therein, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement." Restriction on the power of the arbitrator in valuing the property, deadstock and outstandings was explicit. He could not therefore adopt any valuation different from the valuation prescribed by paragraph 13. of the partnership agreement. But the arbitrator has, as he has himself stated in valuing the goodwill at Rs.32 lakhs, included in that amount the value of the depreciation and appreciation of the properly, dead stock and dues to be recovered.14. Counsel for the appellant submitted that reduction of outstandings of the firm by 15% in respect of the dues from persons other than the partners was a mode of ascertaining the depreciation in respect of that item provided by Cl.(b) of paragraph 13 of the partnership agreement, and the arbitrator in taking into consideration that depreciation has not acted outside his jurisdiction. It would be difficult to regard the method of valuation as prescribed in respect of the outstandings as "including depreciation" Even assuming that the reduction of the outstandings of the firm from persons other than the partners by 15% as directed in cl.(b) of paragraph 13 of the partnership agreement be regarded as depreciation of the assets, inclusion of depreciation and appreciation in respect of the other assets was not permitted by the deed of partnership. In valuing the moveable property including the stock, of raw materials, the arbitrator could not adopt any valuation other than that mentioned in Cl.(c) of paragraph 13 of the partnership agreement, namely, the book value as given in the books of the firm. Similarly, in the valuation of immoveables such as buildings godowns, gardens, lands, etc. he had to accept the book value as mentioned in the books of account of the firm and if no book value was available the purchase price as mentioned in the books was to be accepted. The arbitrator had no power to make any adjustment in respect of those items by including depreciation or appreciation in their value.15. The principle of Cruishank v. Sutherland, (1922) 92 LJ Ch 136 on which reliance was placed by counsel for the retiring partners, has, in our judgment, no application to this case, because in that case though there was an article of the partnership providing that the share of a deceased partner in the assets of the partnership should be ascertained by reference to the annual account made up on April, 30 next after the death, the articles were wholly silent as to the principle to be adopted in preparing a full and general account of the property. There was no usage or course of dealings between the partners from which an inference could be drawn that on the death of a partner his share be paid out on the footing of book value. The executors of the deceased partner claimed that his share be determined "at the fair value of the firm." At p. 138 it was observed by Lord Wrenbury :"Even if there were a usage to state an account for one purpose in one way, that is not a usage to state it for another purpose in the same way. There is a passage in Blisset v. Danial, (1853) 10 Hare 493 at p. 515 which is useful reading in this connection. An account stated for one purpose is not necessarily stated for another purpose. The fact is, that in this partnership an account has never been stated with a view to fitting the case of a retiring partner, or a deceased partner, or a senior partner who is going to exercise an option of taking over all the assets. The partners have never had any such event in view in making the account which they have made. There has never been an account prepared which was intended to meet all the various contingencies of events such as these."In the case before us there is no dispute that the duty of the arbitrator was to make "valuation of the firm" subject to paragraph 13 of the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by paragraph 7, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshanks case, (1922) 93 LJ Ch 136 did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted.16. The expression "book value" in the context in which it occurs in the partnership agreement means, the value entered in the books of account. Adoption of the book value is therefore obligatory and there is no scope of any adjustment in the value in the light of any depreciation or appreciation of the property, outstandings, stock-in-trade of dead-stock, apart from what may actually be included in the book value in the books. It is the book value alone which has to be taken. If the depreciation or appreciation has been taken into account by the partners in assessing the book value, that was evidently part of the book value as entered in the books of account. If them was no book value entered in respect of any immovable property, the decisive value was to be the purchase price.17. It was then urged that it was for the arbitrator to adjudicate upon the true meaning of the partnership agreement and to give effect thereto, and if in making a "valuation of the firm" he was of the opinion that depreciation and appreciation in respect of certain items of assets should be included for the purpose of making up the account of the partners, the Court had no jurisdiction to set aside the award on that account, merely because the Court book took a different view as to the true meaning of the arbitration agreement. But if the partnership agreement was incorporated in the deed of reference, the limits of the jurisdiction of the arbitrator must be determined by the Court and not by the arbitrator. By assuming that he was entitled to include, besides the value of the four items as mentioned in paragraph 13, some amount by way of appreciation in the value of those items, the arbitrator purported to set at naught the specific directions given in that behalf.18. An award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set aside an award if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under S. 35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid S. 30 of the Arbitration Act). An award may be set aside by the Court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and agreement it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion. As observed in Champsey Bhara and Co. v. Jivraj Balloo Spining and Weaving Co. Ltd., 50 Ind App 324 at p. 331 : (AIR 1923 PC 66 at p. 69) :"An error in law on the face of the award means in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party, that opens the door to seeing first what that contention is, and then going to the contract on which the parties rights depend to see if that contention is sound."The Court in dealing with an application to set aside an award has not to consider whether the view of the arbitrator on the evidence is justified. The arbitrators adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in S. 30. It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. On the assumption that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the Court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of his award. But the arbitrator has in the present case expressly stated in his award that in arriving at his valuation, he has included the depreciation and, appreciation of the property, outstanding and dead-stock, and in so doing in our judgment the arbitrator has travelled outside his jurisdiction and the award is on that account liable to be set aside. The question is not one of interpretation of paragraph 13 of the partnership agreement but of ascertaining the limits of his jurisdiction. The primary duty of the arbitrator under the deed of reference in which was incorporated the partnership agreement, was to value the net assets of the firm and to award to the retiring partners a share therein. In making the "valuation of the firm", his jurisdiction was restricted in the manner provided by paragraph 13 of the partnership agreement.19. It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were "other matters connected with" the "transactions" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead-stock.20. It was then urged that when the arbitrator stated that he had included depreciation and appreciation of certain assets in the value of the goodwill in the award, he merely meant that such depreciation and appreciation was included as was in the circumstances permissible. But that would be ignoring the express recital in the award. In fact under the scheme of valuation envisaged by the partnership agreement and therefore the deed of reference, there was no scope for including in the valuation, appreciation of the assets. Again to argue, as was sought to be done, that even though the arbitrator stated that he had included in the amount of Rs. 32 lakhs "the depreciation and appreciation" of the property, dead-stock and dues, there being no power to include appreciation, appreciation in the property and the dead-stock could not have been included amounts to reaching a conclusion from an assumed premises of which the conclusion was a component.21. It was also urged that the expression depreciation and appreciation had no such meaning as decrease or increase in the market value of the property, dead-stock and outstandings, and the clause merely meant that in fixing the valuation such depreciation or appreciation as had gone into the assessment of the book value of the different items was taken into consideration. But the arbitrator has not said that he merely took into consideration the depreciation and appreciation which went into the book value assigned by the partners to the assets in the account : he has clearly stated that he had included the depreciation and appreciation in those assets in the valuation of the goodwill.22. Finally it was urged that the recital about the inclusion of depreciation or appreciation was a mere surplusage and should be discarded. But it would be difficult to regard a statement made by the arbitrator relating to what he sayd he had included in the valuation of the goodwill, as a mere surplusage, especially having regard to the orders made by him insisting upon the production of documentary evidence and certain books of account from Chintamanrao. It may be pointed out that by Cl. 7 of the deed of reference very wide powers were conferred upon the arbitrator to call upon the disputing parties to produce the accounts etc. which the arbitrator desired and to produce any other papers or documents which the arbitrator would like to inspect, and to reply to any enquiry verbal or written of any sort or in any connection and in any form the arbitrator wanted. The orders passed by the arbitrator in exercise of these powers tend to indicate that in his view he was competent to ascertain and include in the valuation of the firm the depreciation and appreciation on the various items which were taken into account in arriving at the valuation. By order dated September 16, 1958, the arbitrator gave direction amongst others, to Chintamanrao to file a statement of houses etc. of immovable property, valuation of the same as shown in the books of account, i.e., figures regarding it, and "also the approximate value statement as it existed" at the date of demand according to the estimate of Chintamanrao. In the note to the order, it was stated that Chintamanrao had produced certain papers but they were incomplete, and therefore he was ordered to bring copies of the incomplete papers and also those papers which were not sent by him. On October 10, 1958, Chintamanrao produced a statement of the net profits of the five years preceding the date of dissolution - which he called the price of the goodwill - for Samvat years 2009 to 2013. The aggregate of the net profits was Rs. 21,70,650/10/- which he called "price of the goodwill." He then submitted a statement of the outstanding of the different shops aggregating to Rs. 9,16,366/- and the value of the goods purchased, and other property, and submitted that the total value of the goodwill of the firm by taking into account the profit of the firm for the last five years "as per the statement filed was Rs. 21,70,650/10/ 3 and deducting therefrom 15% of the outstandings of the firm considered as irrecoverable, the balance was Rs. 20,33,295 /12/9", and that this was the amount from which the shares of the retiring partners were to be computed. On December 2, 1958 an application was filed by Chintamanrao inviting the attention of the arbitrator to the agreement of reference and to the terms of the deed of partnership, especially paragraphs 7 and 13, and submitting that the book values of items (2) to (5) in paragraph 4 of the agreement of reference were already in the books of account and could be easily found without any detailed or elaborate examination of the books of account, it was unnecessary to enter upon any detailed inspection of the various entries. On this application an order was passed on December 5, 1958, by the arbitrator that the inspection of the books of account do start on December 21, 1958, in his presence at Sagar in the office of Messers. Virajlal Manilal and Company and that Chintamanrao do make arrangements for giving inspection of all the books of account. On December 22, 1958, another application was submitted by Chintamanrao stating that it was not necessary to produce certain registers and manufacturing accounts and that the orders in that behalf were beyond the jurisdiction of the arbitrator and that he was unable to produce the documents demanded. It was submitted by that application that the kind of inspection claimed and granted amounted to re-opening of the accounts for the last five years which were closed with the consent and to the knowledge of all the partners and which could not in law be re-opened. On December 23, 1958, an application was made by Amrit Lal son of Jivraj (one of the retiring partners) submitting that the arbitrator had to value the goodwill and this had to be done by ascertaining the value of the profits of the five years, and for that purpose the arbitrator was entitled to ascertain yearly profits by scrutinising the account books and finding out the yearly net profits. On these applications on December 25, 1958, the arbitrator gave a direction that Chintamanrao do produce the papers mentioned in item No. 2 in the order dated September 16, 1958, namely, the gross and net profits of the last five years, and that he do produce the other papers which were ordered to be produced by the order dated September 16, 1958. Thereafter on January 9, 1959, the arbitrator made his award. The instance of the arbitrator upon production of the gross and net profits of the last five years indicate that it was the opinion of the arbitrator that he was entitled to take into consideration not only the book value of the assets given in the partnership books of account but the depreciation and appreciation of those assets. The specific use of the expression by the arbitrator that he had included the depreciation and appreciation of various items of property and the procedure followed by him including the orders therefore clearly establish that the expression used by him was not a mere surplusage.23. It is clear that the arbitrator has included in his valuation some amount which he was incompetent, by virtue of the limits placed upon his authority by the deed of reference, to include. This is not a case in which the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication. It is a case of assumption of jurisdiction not possessed by him, and that renders the award, to the extent to which it is beyond the arbitrators jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must, therefore fail in its entirety.24. In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.25. We accordingly hold that the award was properly set aside by the Courts below.26. Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also.

Decision:
0[ds]In the case before us there is no dispute that the duty of the arbitrator was to make "valuation of the firm" subject to paragraph 13 of the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by paragraph 7, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshanks case, (1922) 93 LJ Ch 136 did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted.It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were "other matters connected with" the "transactions" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead-stock.In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also.