IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Arb.A.No.25 of 2006 ------------------------ OP.82/2004 of SESSIONS COURT,TRIVANDRUM .................... APPELLANTS/PETITIONERS -------------------------------- 1. G.SHAJIKUMAR, S/O.LATE A.GOVINDAN, PARTNER, M/S.BABUJI RESTAURANT, MAITHANAM, VARKALA. 2. G.RAM MOHAN, S/O.LATE A.GOVINDAN DO- DO-. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENTS: RESPONDENTS ------------------------------------ 1. G.RAJENDRA BABU, S/O.GOVINDAN (LATE), MANAGING PARTNER, M/S.BABUJI RESTAURANT, MAITHANAM, VARKALA. 2. K.RAMACHANDRAN, RETD. DISTRICT JUDGE, "GOVIND", NEDUVILLIL LANE, VALANJAMBALAM, COCHIN. ADV. SRI.TOM K.THOMAS THIS ARBITRATION APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ ARB.A. No.25 of 2006 ------------------------------------------------ Dated this the 13th day of October, 2008 JUDGMENT Koshy, J M/s Babuji Restaurant, Varkala is a partnership firm. The first respondent was the Managing Partner. The appellants are younger brothers. The assets of the firm and also its goodwill belonged to the partners in equal shares. The business was run by their father. At the time of death of their father, first respondent alone attained majority and the business was entrusted with the first respondent. He was the only male member in the family. Later, partnership was formed in the year 1981 with three brothers and their mother. After the reconstitution of the partnership, the first respondent continued to ARB.A. No.25 of 2006 -2- be the Managing Partner and was looking after the affairs of the firm. Their mother died on 24/01/2000. The appellants themselves initiated arbitration proceedings stating that the first respondent is exploiting the situation and has diverted huge amount. The first respondent took a contention that after the death of the mother the partnership stood dissolved and an amendment petition was filed by the first respondent to declare that the firm was dissolved with effect from 01/03/03. No objection was filed by the appellants. The amendment petition filed by the first respondent was allowed by the Tribunal. The Tribunal concluded that the partnership stood dissolved with effect from 01/03/03 on the basis of entire evidence adduced in the case. Relying on Ext.B10 audited Balance Sheet as on ARB.A. No.25 of 2006 -3- 24/01/2000 and Profit and Loss Account, the Arbitrator quantified the annual net income as Rs.14 lakhs and for three years the net profit fixed by the Arbitrator was thus, Rs.42 lakhs. The petitioners' due share was fixed as Rs.28 lakhs. The Arbitrator also found that the petitioners are entitled to claim interest at the rate of 8% per annum. Petitioners filed a petition to set aside the award contending mainly that the interest awarded by the Arbitrator on the basis of Ext.B10 audited Balance Sheet and Profit and Loss Account was very low and also contended that the partnership was not dissolved. After allowing of the amendment petition and after filing petition for rendering of accounts it is no more possible for the appellants to contend that the firm was continuing after 01/03/03. ARB.A. No.25 of 2006 -4- The Tribunal took only audited Balance Sheet available and took the same amount for three years and equal shares were allotted to partners and the first respondent was asked to pay the amount due to the petitioners. The contention of the appellants that after 01/03/03 it was running as a partnership, was not accepted by the Arbitrator. We are of the view that the above finding of fact and fixation of share by the Arbitrator cannot be questioned in a petition filed under Section 34 of the Arbitration Act. Considering the interest payable at the time of passing of the award, 8% was fixed by the Arbitrator and the Civil Court refused interference on the same under Section 34 of the Arbitration Act. We fully agree with the views of the District Judge. We see no ground to set aside the order ARB.A. No.25 of 2006 -5- passed by the Arbitrator. Appeal fails and is dismissed accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-