1. ' The plaintiff in this suit had originally filed an application under section 14(2) of the Arbitration Act, which was registered in this Court as J. M. No, 17/1975. On 15-4-1975, pursuance to an order made by the Court in these proceedings the arbitrators filed the original award along with the record of arbitrations proceedings, in Court, whereupon the award was registered as Suit No, 211/1975 and notices were issued to the parties to file objections against the award, if any. Only plaintiff has filed objections to the award and is resisting it from being made rule of the Court. I have heard Mr. Akhtar Mahmood, the learned counsel for the plaintiff and Mr. Noor Ahmed Noori, the learned counsel for the defendants. Mr. Akhtar Mahmood has raised the following contention :-
(i) That there being even number of arbitrators appointed by the parties it was incumbent upon the arbitrators in terms of section 3 read with clause (2) of the Schedule to the Arbitration Act to appoint an umpire within one month of their appointment as an arbitrator and failure to do so has vitiated the award.
(ii) That the award was given by the arbitrators after the expiry of the period of for months mentioned in the reference to arbitrators and as no extension of time was obtained either by the party or by the arbitrators from the Court under section 28 of the Arbitration Act, the award is a nullity in the eye of law.
(iii) That the reference to the arbitrators was vague and indefinite and as such no award could be given by the arbitrators in terms of the reference.
(iv) That the award given by the arbitrators is also vague and unenfotceable and is an unintelligible decision;
(v) That the effect of war and creation of Bangla Desh on the partnership existing between the parties was a question of law which was not specifically referred to the arbitrators by the parties and the arbitrators have misdirected themselves by giving erroneous conclusion on these questions of law which are open to scrutiny and interference by this Court under section 30 of the Arbitration Act.
(vi) That the decision of the arbitrators in so far as it relates on the question of establishment of a business by the plaintiff at Karachi, under the name and style of Paradise Impex, is clearly outside the scope of the reference made to the arbitrators and as such the arbitrators are guilty of misconduct and the award is liable to be set aside on this ground. Before dealing with the above contentions raised by the learned counsel for the plaintiff I would state here some of the admitted facts which formed the background of the reference by the parties to the arbitrators.
2. The plaintiff and the defendants entered into a partnership agreement in the year 1965 and pursuant thereto carried on business under the name and style of "Paradise Corporation" and "Paradise Import and Export Corporation", at Dacca. The firms constituted as above were registered firms and had their registered office at Dacca. The terms of the partnership made it permissible for the partners to open its office at other places. It is an admitted position that the business under the above name and style run at Dacca was under the exclusive control and management of plaintiff who in addition to the partnership business was also carrying on business as sole proprietor under different name at Dacca. The defendants 1 and 2 were also carrying on their business in addition to the above pertnership firms at Karachi under different name. It is also an admitted position that as a result of the creation of the State of Bangladesh the business run under the above name and style at Dacca by the parties was ultimately closed down, and the plaintiff came over to Karachi on repatriation towards the end of 1973. It is not disputed that after coming over to Karachi, the plaintiff established a firm at Karachi under the name and style of Paradise Impex which is still continuing. The dispute appears to have arisen between the parties as a result of some foreign agencies having been acquired by the plaintiff under the name of Paradise Impex, the newly established firm at Karachi, which agency in East Pakistan, stood in the name of the aforesaid partnership firms. This dispute pre-eminently figured in the record of the proceedings before the arbitrators and in the contentions of the parties raised before them. While it is asserted on behalf of the plaintiff that the business started by him at Karachi under the name and style of Paradise Impex has nothing to do and has no concern whatsoever with the business carried on by him at Dacca in partnership with the defendants the contention of the defendants is that the new firm established by the plaintiff is a continuation of the old business and even the name used and employed by the plaintiff is in fact and substance the name of the old firm which greatly worked to the advantage of the plaintiff in obtaining agencies of the foreign suppliers who were well introduced with the partnership firm at Dacca. The use of the word "Paradise" in the name of firm established by the plaintiff at Karachi and the manner in which this word was given pre-eminence in the letter-head used by the plaintiff for the new firm Paradise Impex, was much emphasised and highlighted before the arbitrators by the defendants. The arbitrators who dealt with the dispute considered the contentions raised before them by the parties in their award which is spread over 44 pages in great detail and finally reached the conclusion that Paradise Impex Corporation established by the plaintiff at Karachi is nothing but a continuation of the old firms namely Paradise Import and Export Coporation and Paradise Corporation which was run in the partnership of the parties at Dacca. The arbitrators also reached the conclusion that in spite of the fact that as a result of creation of the State of Bangla Desh the business run by the parties in partnership there, was closed down, but the partnership constituted originally between the parties did not come to an end and was continued even thereafter. The arbitrators also reached the conclusion that the plaintiff, after the creation of Bangla Desh, carried on the business of partnership for sometime there and also utilized the good will and name of the Company and accordingly they held that the plaintiff may either pay the two defendants a sum of Rs, 75,000 in equal proportion to acquire to sole and exclusive right to use the name of the old firm or, in the alternative, admit them as partners in the newly constituted firm Paradise Impex, Karachi.
3. Having stated the dispute between the parties in short and the conclusions of the arbitrators I now proceed to consider the contentions of Mr. Akhtar Mahmood in the order in which they were raised before me.
4. On the first contention, that there being even number of arbitrators appointed by the parties, it was incumbent on the arbitrators before entering upon the reference to have appointed an umpire within one month of their appointment. The learned counsel relied upon section 3 and clause (2) in the First Schedule to the Arbitration Act, 1940. (I will hereafter refer in this judgment the Arbitration Act of 1940 as the "Act" and the Scheth. To the Act as the "Schedule"). To appreciate the contention of the learnec. Counsel it will be advantageous to reproduce here both section 3 of the Act and clause (2) of the Schedule which are as follows :- ' Section 3.-An arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference.
2. ' Clause (2) of the First Schedule :- ' If the reference is to an even number of arbitrators, the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments. Section 3 of the Arbitration Act reproduced above provides that unless a contrary intention is expressed in the arbitration agreement or in the reference the provisions contained in the First Schedule to the Act shall be deemed to form part of the agreement in so far as they may be applicable to the reference. Therefore by force of section 3 if no contrary provision is made in the arbitration agreement or in the reference the provisions contained in the Schedule to the Arbitration Act automatically become part of the arbitration agreement/reference. But, as a natural corollary to the above it follows that if arbitration agreement itself makes any contrary provision then to the extent of inconsistency, the provisions contained in the Schedule to the Act shall give way to the provisions in the agreement/reference made by the parties. Clause (2) in the Schedule reproduced above makes it incumbent upon the arbitrators if they are even in number to appoint an umpire not later than one month from the date of their respective appointments. However as earlier stated by me, this Article shall come into play only if no contrary provision is made for appointment of an umpire in the arbitration agreement itself. I will, therefore, now examine, whether at the time of making the reference to the arbitrators the parties made any provision in the arbitration agreement which was contrary to the provisions of clause (2) of the Schedule. Clause (3) of the arbitration agreement entered into between the plaintiff and the defendants makes following provision for appointment of umpire :- "That in case of difference of opinion as to the decision or award the arbitrators named above shall be entitled to appoint an umpire, whose decision shall also be binding on the parties hereto."
3. This clause in the agreement postulates appointment of an umpire by the arbitrators only upon a difference having arisen between them. The provision thus contained in the arbitration agreement between the parties is different from the provisions of clause (2) in the 4 Schedule and as such in my opinion, to that extent, the contrary provision in the agreement, shall prevail over the provisions contained in clause (2) of the Schedule. Mr. Akhtar Mahmood, the learned counsel for the plaintiff in support of his above contention relied upon the cases of Jawala Parasad v. Amar Nath (1), Ebrahim Ahmed v. Said Hosiery and Textile Mills (2), Firm Shri Ram Harachandas v. President, Cotton Seed Forward Delivery Managing Association (3), and Vinayak Vishnu Sahanara Padhe v. B. G. Gadri and others (4). It is not necessary to examine these cases referred by the learned counsel in any detail as in none of these cases it was contended before the Court that the arbitration agreement between the parties contained a term for appointment of an umpire contrary to the provision of clause (2) of the Schedule. I may also state {{FOOT NOTE}}
(1) AIR 1951 All. 474 (2) PLD 1952 Sind 52
(3) AIR 1954 Nag. 236 (4) AIR 1959 Bom. 39 {{FOOT NOTE}} here that Mr. Akhtar Mahmood very fairly pointed out that the view expressed in AIR 1951 All. 474 was dissented to by another Bench of the same High Court in a later case, Shambhu Rath v. Hari Spanker Lal (1). Similarly the view expressed in PLD 1952 Sind 52 was dissented in the case of the Labab Gut v. Badshah Gul (2) and Balawal Khan v. Capt. Mahmood Alam Khan (3). As the conflicting views expressed in PLD 1952 Sind 52, PLD 1952 Pesh. 23 and PLD 1956 Lah. 494 were all by the learned Single Judges of the respective High Courts, I may here refer a latter decision by a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, in the case of Haji Sattar Heft Muhammad v. Abdul Karim Haji Issa and 3 others. The learned Judges of the Division Bench, in this case dealt with the effect of omission to appoint the umpire by the arbitrators in following words at page 383 of the report: "Our conclusion is that a breach of the provisions of paragraph 2 of Schedule I committed by an omission to appoint an umpire in terms of the paragraph was merely the non-observance of an implied condition of the arbitration agreement and that this non-observance could be remedied by the aggreived party by invoking section 8 of the Act. The failure to invoke the aid of section 8 of the Act amounts to a waiver of the defect of the non-appointment of an umpire. It is not open to the aggrieved party now to raise an objection on the basis of a breach which was curable by its own action and there is no justification for treating the breach as the breach of a provision of law, and thus forgetting the conduct of the aggrieved party itself."
4. ' In view of the above discussed legal position I am of the view that in the circumstances of the present case the award given by the arbitrators cannot be held to be void or illegal on account of their omission to appoint an umpire within one month of their appointment as arbitrators. The point canvassed by Mr. Akhtar Mahmood before me, further loses its significance in view of the fact that the award given by the arbitrators was unanimous and no difference of opinion in fact arose between them.
5. The next contention of the learned counsel is that the award was given after the time mentioned in the arbitration agreement had expired. Clause (7) of the arbitration agreement which is relevant to the contention of the learned counsel is in the following terms :- "That the arbitrators may enter into arbitration proceedings within a month and shall give their award within a period of for months from entering into the proceedings in arbitration."
5. ' The above paragraph in the arbitration agreement provides that the arbitrators appointed by the parties may enter upon the reference within one month of their appointment and within a further period of for months from entering upon the reference they shall give the award. Mr. Akhtar Mahmood, the learned counsel for the plaintiff urged before me that this clause in the agreement does not contain any provision for extension of time if the award is not made within that time. The learned counsel, however, further contended that in spite of absence of such a provision in the agreemeni it was open to the parties or the arbitrators to have applied to the Court for extension of time under section 28 of the Act and the Court thereupon was competent to enlarge or refuse to enlarge the time. He accordingly urged that the award having been given beyond the time {{FOOT NOTE}}
(1) AIR 1954 All. 673 (2) PLD 1952 Pesh. 23
(3) PLD 1956 Lab. 494 (4) PLD 1958 Kar. 378 {{FOOT NOTE}} mentioned in clause (7) of the Arbitration agreement without having obtained the extension of time from the Court as provided in section 28 of the Act, it was a nullity in the eye of law. The learned counsel referred to clause (3) in the Schedule to contend that extension of time could be granted only by a Court Clause (;) of the Schedule and section 28 of the Act respectively are in the following terms :- "Clause 3.-The arbitrators shall make their award within for months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow.
6. ' Section 28.-(1) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, en large from time to time the time for making the award.
(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect."
7. ' No doubt clause (3) of the Schedule to the Arbitration Act reproduced above contemplates that arbitrators shall make their award within for months upon entering upon the reference or having been called upon by the parties to act or within such extended time as the Court may allow. (The underlining is mine). But this provision in the Schedule is to be read with section 28 of the Act.
8. Subsection (1) of section 28 gives power to the Court to enlarge time for making award, whether the time initially reserved for it has expired or not or whether the award has been made or not; and this power could be exercised by the Court from time to time as the circumstances of the case may require. Subsection (2) of section 28 provides that any provision in an arbitration whereby the arbitrators or umpire are empowered to enlarge the time for making the award except with the consent of all the parties to the agreement, is void and of no effect. It will thus be seen that when all parties to the agreement, agree, the time for making of award could be extended or enlarged by the arbitrators or the umpire and no exception can be taken to it. In the case before me, it is not disputed by Mr. Akhtar Mahmood, the learned counsel for the plaintiff that before the expiry of 4 months period mentioned in the agreement the parties made an endorsement on the back of the original arbitration agreement agreeing to extension of the time by one month, for giving award by the arbitrators and they continued to appear and participate in the proceedings before the arbitrators after expiry of 4 months period until award was given without raising any objection. The endorsement made by the parties on the back of the arbitration agreement is in the following terms :- "Time one month is extended by consent of all the parties for award by the arbitrators."
9. ' Mr. Akhtar Mahmood the learned counsel for the plaintiff relied upon the cases of Messrs Badri Narayan Agar walla v. Pak Jute Bala Ltd. (1) and Tayab Sharif v. Kassam Adamji (2), to support his above contention. The facts of these cases, however, are of no help and assistance to Mr. Akhtar Mahmood. The effect of giving extension of time by the parties to the arbitrators for giving award and their continued appearance before the {{FOOT NOTE}}
(1) P 1 D 1966 Dacca 262 (2) PLD 1956 Sind 195 *lHere in italics] {{FOOT NOTE}} arbitrators in spite of expiry of the period of 4 months originally reserved for giving the award, never came up for consideration in these cases. This point directly arose was decided in the case of Haji Ghulam Mohiuddin v. Federation of Pakistan (1), by a Division Bench of the then High Court of West Pakistan, Lahore Bench, the relevant portion is at pages 209 and 210 of report as under :- "In view of the above weight of authorities we hold that the award cannot become invalid in the instant case due to the mere fact that it was not given within for months, the reason being that the appellant did not raise this objection at the proper time and rather acqiesced in the continuance of the arbitration proceedings, lead evidence and took the chance of a favourable decision and when the decision has gone against him he cannot be allowed to say that the arbitration proceedings extended beyond the time limit implied in the arbitration agreement. If the terms of the agreement can be changed by the parties by their mutual consent (as for example by writing) then it is obvious that the terms about time matter could also be changed with their consent implied from their conduct. In the instant case the consent of the appellant in continuation of these proceedings is obvious because he raised no objection with regard to it at any stage of the case before the arbitrator and it is the finding of the learned appellate Court as well."
10. ' The present case is on a much stronger footing than the case decided in PLD 1967 Lah. 204, as here not only all the parties to the agreement continued to perticipate in the arbitration proceedings before the arbitrator after expiry of the period of 4 months originally fixed in the arbitration agreement for giving the award by the arbitrators but that by an endorsement duly made and signed by them they agreed to extension of the time by one month for giving award by the arbitrators. In these circumstances I am of the view that the contention of the learned counsel for the plaintiff has no merit and the award given by arbitrators on 1st January, 1975, is legal and valid.
6. I will deal with the contentions (iii), (iv) and (vi) of the learned counsel together as they are overlapping and inter-connected in ultimate analysis. It is contended that reference to arbitrators as well as the award are vague and that the dispute decided by the arbitrators was beyond the scope of the reference. The dispute referred to the arbitrators admittedly related to the affairs of the partnership firm, namely, Messrs Paradise Corporation and Messrs Paradise Import and Export Corporation and Messrs Paradise Import and Export Corporation, Dacca. The arbitration agreement entered into between the parties referring the dispute to the arbitrator is in the following terms :- "Whereas the parties hereto had entered into partnership in the names and styles of Messrs Paradise Corporation and Messrs Paradise Import and Export Corporation, the firms being registered and run at Dacca; and whereas there have arisen disputes between the parties herein in respect of the affairs of partnership of the firms named above; and whereas the deed of partnership provided any disputes between the parties hereto be referred to arbitration and the parties hereto {{FOOT NOTE}}
(1) PLD 1967 Lab. 204 {{FOOT NOTE}} now wish to refer the matters and disputes relating to the affairs of partnership of the firms named above to arbitration.
11. ' Now Therefore This Agreement Witnesseth As Follows :-
(l) That the parties hereto have mutually agreed to refer their disputes with regard to the affairs of partnership of the firms Messrs Paradise Corporation and Messrs Paradise Import and Export Corporation, Dacca to the arbitration of Messrs Mehtabuddin son of late Hafiz Muhammad Rafi, of Messrs Perfume Supply Co., Marriot Road, Karachi and Anisur Rehman Kathuria son of late Jamilur Rehman Kathuria, of Annissons, Marriot Road, Karachi.
(2) That the parties shall state their respective cases to the above arbitrators in writing and shall be bound by their decision."
12. ' Mr. Akhtar Mahmood the learned counsel for the plaintiff contended that if by interpreting the above clause it is to be understood that the dispute referred to the arbitrators also included determination of the status of the firm established by the plaintiff at Karachi under the name and style of Paradise Impex, then the reference was vague as it did not say so expressly. To me, however, there appears to be no ambiguity or vagueness in the reference made to the arbitration.
13. The clause in the arbftration agreement which set out the dispute referred to the arbitrators is in precise and clear terms. The arbitrators however took the view that by making a reference to them in respect of the affairs of the partnership firms Messrs Paradise Corporation and Messrs Paradise Import and Export Corporation, Dacca, the parties empowered them to enquire into the working of the said firm including the question of its establishment in Pakistan after the fall of Dacca. The arbitrators also took the view that the words "affairs of the partnership firm" are not confined to the settlement of accounts only but also empower them to enquire into the subsequent conduct of the business by the plaintiff and the defendants under the same name or under the name similar to them. The interpretation put forth by the arbitrators en the reference cannot be described as perverse. Such interpretation is possible on the language used in the reference as by reading the reference it cannot be said that the reference to abitrators was confined only to the settlement of the accounts between the parties in respect of the above firms carried on at Dacca. The "dispute" and "affairs" relating to partnership firm could legitimately include an enquiry in the subsequent carrying on of the business by one of the partners of the firm under the name and style of the firm and the advantage derived therefrom. The contention of Mr. Akhtar Mahmood, therefore, that the reference to the arbitration was vague or alternatively did not include the determination of the carrying on of the partnership business by the plaintiff at Karachi, was not within the scope of the reference, has no force. I have myself looked into the record of the proceedings before the arbitrators and noticed that the plaintiff himself made admission before the arbitrators that in spite of fall of Dacca and declaration by the Government of Bangla Desh, the property of the partnership as enemy property, he managed to continue the business in one form or other. He also admitted to have remitted some of the assets of the company to Karachi (the then West Pakistan) after the fall of Dacca. It was asserted before the Arbitrators that even in 1974 when the statement was being recorded before the arbitrators the plaintiff was continuing business under the name of the firm at Dacca and Chittagong. The questions put to plaintiff in this regard were either avoided or evasively replied by him before the arbitrators. I have reproduced a portion of answers and questions in this regard in latter part of this judgment. The conclusion, accordingly, in my opinion, reached by the arbitrators that the effect of closing down of the business of the firm at Dacca did not amount to dissolution of the partnership firm and that the partnership business continued even after the closure of the business at Dacca, under the control and management of the plaintiff cannot be held as perverse or based on no evidence. Whether the evidence was sufficient or not to reach this conclusion or another view on the evidence was possible are no ground to interfere with the findings of arbitrators. The findings of the arbitrators in my opinion, are not such which can come within the purview of an error apparent on the face of the award, so as to attract jurisdiction of this Coutt for interference.
7. On the point of effect of war and laws and declaration made by Government of Bangla Desh, on the partnership business, Mr. Akhtar Mahmood contended that the conclusions reached by the arbitrators were erroneous and the error of law is apparent on the face of the award. I need only say this much that the arbitrators in fact agreed with the contention of plaintiff raised before them that the business of partnership came to an end with the establishment of State of Bangla Desh.
14. This conclusion by no means can be termed as erroneous. In so far the further conclusions of the arbitrators that the plaintiff in spite of the fall of Dacca continued to do business of the partnership in some form or the other is concerned, it is based on factual aspect of the case and admission made by the plaintiff before the arbitrators. I am accordingly unable to find any fault with the decision of the arbitrators on this score.
8. It was lastly contended by Mr. Akhtar Mahmood that a sum of Rs, 2 lakhs fifty thousand fixed by the arbitrators as the amount of good will and the foreign commission earnings, is based on no evidence at all, As the contention of the learned counsel is based on purely factual aspect of the case I have gone through the record of arbitration proceedings with the assistance of the counsel.
15. The learned counsel for the defendants pointed out to me that the firm was doing substantial business in East Pakistan from 1965 onwards, and its main business was "indenting business". The fact that the firm consistently made progress in its indenting business is fully reflected from the balance-sheets and the trading accounts filed by the parties before the arbitrators for several years. The learned counsel for the defendants referred to me the documents at pages 11, 13, 21 and 31 of File No. 1 of the record of arbitration proceeding, which are the admitted copies of the audited account of the partnership firm for the years 1966 to 1970. At page 13 of File No. 1 which is Trading Accounts for 1966, the total profit earned by the firm is shown as Rs, 25,768 out of which: Rs, 5,590 was the commission earned on business with foreign supplies. For the year 1967 at page 11 of the same file, the total profit earned is shown as Rs, 38,280.60 out of which commission on foreign busines: is Rs, 12,602.29. Similarly the profit earned for the year 1969 by the firm only as Commission on foreign business is Rs, 47,193.65 while in the year 1970 the profit shown to have accrued to the firm on account of commission on foreign business is Rs, 20,172.68. Apart from it the plaintiff also admitted before the arbitrators that he disposed of the assets of the firm in April/May, 172 and that he also surrendered the possession of a commercial premises held by the partnership firm in Moti keel Area, Dacca, to the landlord. I will here also reproduce some of the questions put to plaintiff and answers given by him before the arbitrators regarding the business done by plaintiff after fall of Dacca. They appear at pages 40.41 of File No, 2 of the arbitration proceedings and are as follows : "Q.
16. 5.-After the declaration of the Partnership firms as Enemy property, in Bangladcsb, how did you continue the business in the same name and style?
17. A.
18. 5.-I have already stated that under separate arrangements I continued the business with different constitution. Q.
19. 6.-Did you inform the foreign Principals about the said change in constitution of the firms?
20. A. G.-They were not informed particularly about the change in the constitution of the firms but they were informed about some changes. Q.
21. 7.-Were the firms with this alleged changes in the constitutions assessed by the Income-tax Authorities in Bangladesh?
22. A.
23. 7.-No, Not till my migration from Bangladesh in December, 1973. Q.
24. 8.-Did you file any return of Income-tax in Bangladesh? A.
25. 8.-Yes, I have filed. Q.
26. 9.-Are you still carrying on a Bank Account with a Chartered Bank, Dacca or in any other Bank there in the name of the two firms showing yourself as sole proprietor?
27. A.
28. 9.-I did not maintain any account with the Chartered Bank, Dacca. I however have abandoned an account at Dacca and I do not know its fate. Q.
29. 10.-You did not file the letter-Head of "Paradise Impex Corporation" presently situated in Jilani Market, Marriot Road, Karachi?
30. A.
31. 10.--I confirm that the photostat copy of the letter dated 18th September, 1974, marked as 8,13 on the records of Arbitration is the correct letter-head. Q.
32. 11.-Is the letter-head under section 13, give impression that this is the original firm from Dacca giving the word "Impex" in the second line in the same style as was there?
33. A.
34. 11.-As the design was not registered and even is not registered any one has the right to use the same design. However, at the end of letter I have signed in one single line for Paradise Impex Corporation.
35. Q.
36. 12.-On what terms you arranged the foreign agencies with Mr. Muhammad Ashfaq at Dacca, and to Mr. Salahuddin at Chittagong?
37. A.
38. 12.-This question is not related to the Partnership under D/2, so refrain to reply the same. Q.
39. 13.-Did you receive any money from Mr. Ashfaq or Mr. Salahuddin on account of the alleged arrangement referred to the above?
40. A.
41. 13.-My reply is the same as above under Serial No, 12.
42. Q.
43. 14.-What are your interests in Paradise Indent Corporation at Dacca and Chittagong?
44. A.
45. 14.-1 re-affirm my reply as I said in A.
46. 12.
47. Q.
48. 15.-You had two trips to Europe in 1973 and 1974, the former from B. Desh and the latter from Pakistan (Karachi). Does this relate to Partnership business under D/27?
49. A.
50. 15.-I say that according to me that the partnership was dissolved in 1971 by the creation of Bangladesh. These trips are not under the Deed D/2.
51. Q.
52. 16.-Did you file the return to Income-tax Department under D/2 and got assessed after the creation of Bangla Desh?
53. A, 16.-The returns were filed but the assessment was not made by the Income-tax Department of Bangla Desh, before I left. Q.
54. 17.-Can you provide a copy of the Income-tax Return referred to hereinabove?
55. A.
56. 17.-No, I do not have a copy. Q.
57. 18.-Do you remember when the last assessment was made by the I/C Tax Department under D/2?
58. A.
59. 18.-I do not remember the year but as and when assessment is made copies were sent to Party No. 1.
60. Q.
61. 19.-Did you submit any return of foreign commission earned to Government Bank of Bangiadesh?
62. A.
63. 19.-I had filed the return under D/2 in 1971 and I do not have a copy of the same. Q.
64. 20.-1 say 'that I Abdul Sattar had managed to withhold agencies from B & F London in 1971 and several others during 1972 for partnership business under D-2 in Bangladesh'. Will you please confirm?
65. A.
66. 20.-The partnership was dissolved, according to me, in 1971 by the creation of Bangladesh, the question of agencies, to partnership business does not arise."
67. ' After considering the above material which was before the arbitrators, it cannot be said that the decision given by them on the value of goodwill of firm and foreign commission earnings of the firm subsequent to period of fall of Dacca, is based on no evidence at all. There was, some evidence available before arbitrators and the arbitrators who admittely also belong to the same trade which was carried on by the plaintiff and the defendants, did make some inferences from the material on the record in estimating the value of the goodwill of the firm and foreign commission earnings. The fact whether there was sufficient evidence or not or that the evidence was rightly appraised by the arbitrators or inferaces from evidence were correctly drawn by them, in my opinion is not open to scrutiny in these proceedings. The arbitrators are domestic Tribunal and they are not governed by technical rules of evidence and procedure and no complaint can entertained on this score, by the party who chose the forms for decision of dispute. I accordingly hold that the valuation of goodwill of firm and the foreign commission earnings of firm arrived at by the arbitrators was not without any evidence and material on record as contended by the learned counsel for the plaintiff. Mr. Akhtar Mahmood also contended that the alternative course of settlement of dispute devised by the arbitrators in the award are open to serious exception as they are incapable of being enforced. I find no substance in this argument of the learned counsel also.
68. The arbitrators decided that either out of the total amount fixed towards goodwill and foreign commission earnings of the firms the plaintiff may pay the defendants the amount in proportion to the shares they held in the firm as partners, and acquire the sole and exclusive right in the goodwill and name of partnership firms or admit the defendants as partners in the newly-established firm "Paradise Impex". This alternative course decided by the arbitrators for settlement of dispute between the parties is neither illegal, nor vague nor can it be described as unintelligible and unenforceable. I accordingly reject the objection of the plaintiff and make the award rule of the Court. Decree to follow accordingly.
69. Award made rule of Court.