Sunil Balkrishna Shukre, J. - (1.)THIS appeal has been preferred against the judgment and decree dated 13.4.2006 passed in the proceedings under Section 20 of The Arbitration Act, 1940 (registered as Regular Civil Suit No. 54/74), by the 2nd Joint Civil Judge, Sr. Dn., Nagpur.
(2.)THE facts leading to this appeal may be stated, in brief, as follows:
(i) The respondents are the original plaintiffs, and the appellants are the original defendants. There was a partnership firm consisting of partners Diwanchand, Mukundlal, Jaiprakash, Ruplal, Kulbhushan and Ashok Kumar Bhutani, which carried on the business under the name and style as "Bhutani Enterprises". Under the Deed of Partnership dated 25.1.1961, there was a clause providing for arbitration for settlement of disputes and questions which might arise in connection with the business of the partnership or partnership -deed.

(ii) One of the partners Shri Diwanchand died on 21.1.1969 and upon his death the partnership firm stood dissolved. The original defendants 1 to 9 and 11 are the legal representatives of deceased Diwanchand Bhutani and the original plaintiffs 1, 2 and 3 are the partners of the dissolved firm. Original defendants 2, 3 and other legal representatives of deceased Diwanchand were in possession of the assets of the partnership firm and it is alleged that in stead of rendering the accounts and delivering the assets, they started selling away the firm's property. Thus, dispute and differences arose between the partners and, therefore, it became necessary to refer the same to an Arbitrator. Accordingly, the plaintiffs filed an application under Section 20 of the Arbitration Act for referring the dispute to an Arbitrator to be appointed by the Court and passing of a decree in accordance with the award of the Arbitrator.

(iii) The application was initially registered as MJC No. 441 of 1969 which was later on converted into Regular Civil Suit No. 54 of 1974. The original defendants 1 to 3 filed their written statement and defendant no. 5 and 6 also filed separately their respective written statements. They were the legal representatives of deceased Diwanchand. The written statements were more or less similar and basically they denied the averments in the petition. The Civil Court after framing of the issues and after recording of the evidence found that the suit as filed by the plaintiffs was barred by limitation and accordingly dismissed it by its judgment and order dated 26.2.1980. The said judgment and order came to be challenged before the High Court vide F.A. No. 108 of 1980, and after hearing the parties the said judgment and decree dated 26.2.1980 came to be set aside by the High Court. The matter was remanded back to the trial Court with a direction to appoint an Arbitrator as per the arbitration clause in the partnership -deed and proceed with the suit in accordance with law as per the order passed on 21.9.1989.

(iv) After remand of the case, the trial Court appointed an Arbitrator for passing the Award. The Arbitrator served notices upon all the defendants and after service of notices, some of the defendants appeared personally and whereas some of them did not appear before the Arbitrator, as per the order -sheet dated 25.4.1992. The Arbitrator, after considering the statement of claim filed by the original plaintiffs and also the affidavits in support of the statement of claim, passed an award on 22.3.1993 and filed it in the Court on 26.3.1993.

(v) Some of the defendants filed their objections to the award passed by the Arbitrators. However, considering the fact that those objections, in the opinion of the learned Civil Judge, were filed after the statutory period of 30 days from the date of service of notice as prescribed by law, and there being no separate application for condoning the delay, the learned Civil Judge found the objections to be unsustainable in law and, therefore, rejected them. The learned Civil Judge also did not find any reason to set aside the Award and, therefore, by the judgment and decree dated 13.4.2006 made the Award dated 22.3.1993 as a Rule of Court. It is the same judgment and decree which are under challenge in the present appeal.

We have heard Shri Shyam Dewani, learned counsel for the appellants and Shri R.L. Khapre, learned counsel for the respondents 1 to 4. Having regard to the arguments of the rival sides, at the centre of controversy is the point regarding maintainability of the present appeal, and, therefore, the point that falls for our consideration is as follows:

Whether the present appeal is maintainable in view of the provisions of Section 39(1)(vi) of the Arbitration Act?

(3.)SHRI Dewani, learned counsel for the appellants, has forcefully argued that this appeal is very much maintainable as the learned Civil Judge has refused to set aside the Award and has adopted a novel procedure in making the Award as Rule of the Court under Section 17 of the Arbitration Act. He submits that some of the defendants had filed their objections under Section 30 of the Arbitration Act but they were erroneously considered to be time barred and rejected by the learned Civil Judge. He also submits that even otherwise the learned Civil Judge ought to have considered the legality and correctness of the Award on his own and set aside the Award suo motu as it was the result of irregularities committed in the procedure and illegalities and mistakes committed in applying the law correctly.