NOORUL ARFIN, J.--This appeal questions the judgment of a learned Single Judge of this Court, given on 4th February 1970, by which the award of Mr. Mahmood Hussain Khan was made the rule of the Court and the appellant's objections to the award were dismissed. The dispute between the parties flows from a partnership between them under an agreement dated 1st August 1957 contained an arbitration clause to settle any and all differences between the partners through arbitration. The present respondents filed Suit No, 80 of 1967 praying for dissolution of the firm and for its accounts and its winding up. The appellants thereupon filed an application under section 34 of the Arbitration Act praying for stay of the suit. By consent of the parties, the suit was stayed and the whole dispute was referred to the sole arbitration of Mr. Mahmood Hussain Khan, an Advocate of this Court. On entering upon reference, Mr. Khan framed as many as 10 issues and gave his award on 15th July 1969, this award becoming later rule of the Court by the judgment impugned before us.
2. Mr. Naimuddin, the learned Advocate for the appellants, took the following contentions before us : (1)That under issue No, 2, the arbitrator has not determined the value of the typewriter held to have been removed from the partnership premises by one of the appellants, namely, Sheikh Muhammad Iqbal.
(2)That under issue No, 5, the arbitrator has wrongly held that appellant Sheikh Muhammad Iqbal alone should be debited with Rs, 75,000 and that the proper thing would have been either not to debit Shaikh Muhammad Iqbal with this amount, or, alternatively, to make this debit entry against all the appellants.
(3)That under issue No, 7, the learned arbitrator failed to determine whether the debit entry of Rs, 35,678 against Messrs S. Muhammad Din & Sons is genuine or not and whether the respondents are not accountable or liable for this amount.
(4)Under issue No, 9, the arbitrator has merely prepared balance-sheet giving the shares of each partnership assets without, however, determining as to whether these assets are in existence or not, and if not, which of the partners is liable for these assets.
3. A further argument of Mr. Naimuddin was that the whole suit had been referred to the arbitrator and he should, therefore, have proceeded not only to take accounts of the firm but also to wind it up in accordance with the provisions of the Partnership Act and that since he has not done so the award is incapable of execution.
4. On issues Nos, 2, 7 and 9 Mr. A. K. Lakhani, the learned Advocate for the respondents, agrees that the award should be remitted back to the arbitrator to determine the following points which have been left undetermined and to take accounts of the firm in the manner stated hereunder :-- (i)What is the value of the typewriter under issue No, 2 and whether Shaikh Muhammad Iqbal should be made accountable for this amount?
(ii)Whether the sum of Rs, 35,678 is due from Messrs S. Muhammad Din & Sons, or from the respondents or either of them, and if the respondents are liable for this amount, then, whether they should not Le made accountable for this amount and necessary debit entries should not be made against them with regard to this sum.
(iii)Under issue No, 9, the arbitrator should be directed to take accounts in the following manner : (a)What are the assets of the firm?
(b)Whether these assets are in existence or not, and if not, which of the partners is liable for these assets?
(c)What sums are due to the firm from each of the partners and what amount is due from the firm or any of the partners ?
(d)What are the liabilities of the firm to other parties?
5. It is further agreed between the parties and we make order accordingly, that after taking these accounts the arbitrator should proceed to wind up the business of the firm by realising its assets from outside parties and by sale of its assets and by realising from any partner such sums of money for which he is liable to the firm in excess of his share in the assets of the firm.
6. Mr. A. K. Lakhani suggested that the arbitrator should take immediate possession of all the assets of the firm, whatever they may be, and that these assets include a plot of land, one shop and two godowns. Mr. Naimuddin says that the partnership has some assets at Lahore also, possession of which should be taken by the arbitrator immediately. With the consent of the parties we direct that arbitrator to take possession of all these assets and to sell them in the course of the winding up of the firm. The arbitrator is also authorised to take such other steps as may be necessary to complete the winding up of the firm.
7. Accordingly, we will accept this appeal only to the extent mentioned above and remit the award to the arbitrator for determination of the various points and for action mentioned by us in paragraphs 4 to 6.
8. It may here be stated that Mr. Naimuddin also objected to the arbitrator's decision under issue No, 5, by which the respondents were given credit for Rs, 75,000. Now, this issue arose in these circumstances--there was a debit entry in the sum of Rs, 75,000. The respondents contended that this debit entry should have been shown against Shaikh Muhammad Iqbal, one of the appellants, who, according to the respondents, took this money out of the firm for some separate business. Mr. Naimuddin's contention is that no debit should have been made against Shaikh Muhammad Iqbal for this amount, or if this debit had at all to be made, then it should have been made against all the appellants. We are unable to accept this plea. The respondents, in their statement of claim filed before the arbitrator, had specifically stated, in paragraph 7, that this amount of Rs, 75,000 had been taken out of the firm by Shaikh Muhammad Iqbal, and that he should be required to render account therefor. In debiting the sum of Rs, 75,000 against Shaikh Muhammad Iqbal the Arbitrator came to the finding that Shaikh Muhammad Iqbal is liable for this amount to the firm. This is purely a finding of fact and we are unable to agree with Mr. Naimuddin that this finding should be set aside. It is not possible for us to hold that this finding is not based on evidence or suffers from any perversity. Accordingly, we are unable to uphold this particular objection of Mr. Naimuddin to the award.
9. In the result, the award shall go back to the arbitrator for determining the points and taking the account and action mentioned by us in paragraphs 4 to 6 above. The arbitrator is also directed to take immediate possession of all the assets of the firm including the shop, the plot of land and the godowns in Karachi and any other assets which may be situated at Lahore or at any other place for which necessary information and evidence should be led by the parties before the arbitrator.
10.As regards the fees of the arbitrator for the further work he will have to do, both Mr. Naimuddin and Mr. A. K. Lakhani state that they will agree to a reasonable amount outside the Court. The arbitrator, namely, Mr. Mahmood Hussain Khan, who is present before us, has no objection to this arrangement. Order accordingly.