pvr 1 ap463-464-674 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.463 OF 2010 1.Vikram Vithaldas Vyas & Ors. ...Petitioners vs. 1.M/s.G.M.Vyas & Co. & Ors. ...Respondents AND ARBITRATION PETITION NO.464 OF 2010 1.Vithaldas Gangashankar Vyas & ors. ...Petitioners vs. 1.Madhusudan Gangashankar Vyas & Ors....Respondents AND ARBITRATION PETITION NO.674 OF 2010 Vithaldas Gangashankar Vyas ...Petitioner vs. 1.M/s.Vyas Textiles & Ors. ...Respondents --- Mr.Pradip Sancheti, Sr.Advocate i/b. Sushma Singh, for Petitioners. Mr.D.D.Madan, Sr.Advocate @ Mayur Khandeparkar i/b. Kanga & Co., for Respondents. pvr 2 ap463-464-674 --- CORAM: D.K.DESHMUKH, J. DATED: 24th June,2011. P.C.:- 1. All these three petitions are filed under Section 34 of the Arbitration and Conciliation Act, 1996, challenging the Award made by the same Arbitrator. The parties to the proceedings are also same, therefore, they can be conveniently disposed of by common order. 2. The first submission of the learned Counsel appearing for petitioners is that all the persons who were parties to the family arrangement were not before the Arbitrator though the suit that was to be decided by the learned Arbitrator was for enforcement of the family arrangement. According to the learned Counsel, therefore, the Award is infirm. Perusal of the issues framed by the learned Arbitrator shows that Issue no.2 reads thus:- pvr 3 ap463-464-674 “2. Whether the suit is bad for non joinder of necessary parties as contended in paragraphs 6 & 7 of the Written Statement of Defendants 1 to 7?” In paragraph 35, the learned Arbitrator has recorded thus:- “Mr.Mehta did not make any submissions as regards issues nos. 1,2,3 and 4.” Mr.Mehta admittedly appeared for the petitioners. Thus, it is apparent that in the suit which was decided by the learned Arbitrator the ground for non joinder of parties was given up as not argued before the learned Arbitrator and therefore, that ground is not available and cannot be raised in this Court. 3. It is further submitted that in paragraph 39(viii) of the Award the learned Arbitrator has observed thus:- “However, as no property is selected VGV group cannot claim performance of that part of the pvr 4 ap463-464-674 agreement. Now it is too late for VGV group to select such a property.” The learned Arbitrator has considered this aspect of the matter in paragraph 33 of the Award. The family settlement is of 1979. The learned Arbitrator has in fact found that the petitioner did not exercise his option at any point of time, he has also not filed any counterclaim seeking decree of specific performance permitting him to exercise his option, and therefore, the learned Arbitrator in view of the facts and circumstances of the case has held that order for permitting the petitioner to exercise his option cannot be granted. In my opinion, this is a possible finding recorded by the learned Arbitrator in the facts and circumstances of the case. Considering the limited jurisdiction conferred on this Court under Section 34 of the Arbitration & Conciliation Act, this is incapable of being interfered with. 4. Then it was submitted referring to the family arrangement dated 8.10.1979 that so far as the pvr 5 ap463-464-674 property at Sr.nos.3 and 4 are concerned, only the buildings were sold and the land beneath those buildings is not sold. The learned Arbitrator has decided this issue in paragraph 25 and relying on the statement made by the petitioner-defendant no.3 himself in his cross examination, rejected the contention. Perusal of the record shows that the petitioner in his cross examination has admitted that the word “property” in the Minutes dated 8.10.1979 includes land also. It was submitted before me that the petitioners wanted an opportunity to lead additional evidence before the learned Arbitrator, but the learned Arbitrator did not permit him to do so. This aspect of the matter has been considered by the learned Arbitrator in paragraph 30 of the Award and the learned Arbitrator in that paragraph noted that a request to lead evidence was made after the evidence is completed. Therefore, the learned Arbitrator had asked the petitioners to file affidavit of evidence on or before 22.9.2008, but the petitioners did not file any affidavit. Still the learned Arbitrator permitted the petitioners to file additional documents. The learned Arbitrator observed in paragraph 30 of his pvr 6 ap463-464-674 Award that despite producing some new documents, no argument based on those documents is advanced. In my opinion, the contention, obviously, has no force. 5. It was then submitted that the family arrangement is neither on stamp paper nor it is registered. The learned Arbitrator has dealt with this issue in paragraph 35 of the Award. The learned Arbitrator has observed that no arguments were made before him as to why the family arrangement was required to be registered. It is, thus, obvious that the question ‘whether the family arrangement was necessary to be compulsorily registered’, was not even urged before the learned Arbitrator, therefore, it cannot be permitted to be raised for the first time before this Court. 6. The last submission of the learned Counsel appearing for the petitioners was that the learned Arbitrator was not justified in holding that the suits for accounts were barred by limitation because they were not filed within a period of three years, as per Article 5 of the Limitation Act, from the date of pvr 7 ap463-464-674 dissolution of the firm. It was submitted, relying on two judgments viz. (1) “AIR 1938 Lahore 259, Sonun Ram Mukhi Lal Chand & Ors. vs. Sewa Ram and others” and (2) 2007(3) Bom.C.R. 1010, Shreedhar Govind Kamerkar Vs. Yesahwant Govind Kamerkar & Anr.”, that though the firm may be dissolved with reference of a particular date, unless the accounts are actually made up, the cause of action does not accrue to a partner to sue for accounts. In the present case, in both the suits there was prayer made for declaration that the firm stands dissolved with reference to 3.6.1982. The learned Arbitrator has held that as the suit is not filed within a period of three years from that date, as per Article 5 of the Limitation Act, the suit is barred by limitation. I do not find any pleading made on behalf of the petitioners urging that the accounts were made up at any future date, and therefore, they gets cause of action with reference to that date. If it was the case of the petitioners that though the firm was dissolved in June,1982, as the accounts were not made up on that date and they were made up at any future date, the petitioners will get their cause of action accrues to file suit for accounts for any pvr 8 ap463-464-674 future date, it was for the petitioners to plead that and then to lead evidence on that count. The petitioners have not done it. The question of limitation is never a pure question of law, it is always a mixed question of law and facts. The question of fact cannot be decided unless it is pleaded, unless the evidence is led. The petitioners cannot be allowed to raise new ground altogether for which there is no foundation in the pleadings, for the first time in the petition filed under Section 34 of the Arbitration and Conciliation Act. Thus, I find no substance in the ground which is urged by the petitioners. Therefore, all the petitions are rejected. (D.K.DESHMUKH, J.) ---