text stringlengths 5 5.67k |
|---|
Relevant part of Law 198 reads : "On the answer being lodged, or on the expiry of the time for doing so, the matter of the complaint shall be brought before the Lodge for consideration and judgment, either at a special meeting called for that purpose, or at a regular meeting of the Lodge. Ratio |
The meeting at which it is to be considered must be called by circular sent by the Secretary, which shall state the fact that the complaint, and answer, if any, are to be brought before the lodge for consideration and judgment. Ratio |
" As we have already indicated in the narration of facts, notice was issued to the members fixing the date of the special meeting along with the notice issued to the appellant i.e., the notice was issued to the members before the appellant filed his answer in respect of the allegations made against him in the complaint... |
It is, therefore, contended that the notice of the special meeting issued to the members was not in strict compliance with the said Law. Ratio |
We do not see any contravention of the Law. Ratio |
The Law does not say that notice to the members should be issued only after the answer was lodged by the person against whom a complaint was made. Ratio |
But what it says is that the matter of the complaint shall be brought before the Lodge for consideration after the answer was lodged or on the expiry of the time for doing so. Ratio |
It also does not prescribe that the answer should be communicated to the members, but only indicates that the notice shall state the fact that 16 the complaint and the answer, if any, will be brought before the Lodge for consideration and judgment. Ratio |
To put it in other words, the gist of the relevant part of the law is that in the special meeting convened for the purpose or at a regular meeting of the Lodge, the matter of the complaint shall be brought for consideration and judgment. Ratio |
In the present case it is not disputed that the prescribed notice was given to the members and at the meeting all of them had considered the complaint as well as the answer lodged by the appellant. Ratio |
Therefore, the law in this regard has been strictly complied with. Ratio |
The next contention relates to the following part of Law 198 : "Notice of the meeting shall be sent to the accused brother by registered letter posted to his last known address at least fourteen clear days prior to the day of the meeting and that whether he has lodged a written answer or not, and he shall be entitled t... |
" It is contended that under the said part of the Law, the accused is entitled to have another 14 days after he filed his answer to enable him to file his case before the Lodge and that in the instant case no such additional period was given to him. ARG |
That is so. Ratio |
The position, therefore, is that the appellant was given notice of the hearing as required by the law, but he was not given the entire period prescribed thereunder. Ratio |
The question is whether this error in the procedure vitiated the trial. Ratio |
It is obvious that the appellant wag not prejudiced. Ratio |
He never made a complaint of it. Ratio |
Indeed in his answer he made it clear that he would not be present at the inquiry. Ratio |
The Law itself enabled him to apply for further time, but he did not ask for it, as he did not want to appear at the meeting. Ratio |
He did not raise this objection either in the appeal before the District Grand Lodge or in the second appeal before the Grand Lodge of Scotland. Ratio |
Before the said appellate Lodges he took 17 the decision on merits. Ratio |
Indeed, by his answer and subsequent conduct he clearly waived the said requirement of the Law. Ratio |
Can he now be allowed to rely upon a breach of the procedural rule to invalidate the proceeding ? In our view, he cannot do so. Ratio |
There is a distinction between the jurisdiction of a Lodge and the irregular exercise of it in the matter of the taking of procedural steps. Ratio |
A party to a dispute can certainly waive his objections to some defects in procedure. Ratio |
In this case, the appellant could have taken objection for his being given a shorter period of notice than prescribed under the Law for his appearance before the meeting of the Lodge. Ratio |
He did not do so. Ratio |
The appellant has, by his aforesaid conduct, clearly waived his right under the said Law. Ratio |
Having waived it, he is now precluded from relying upon the said defect. Ratio |
We, therefore, hold that it is not open to the appellant to rely upon the said defect for invalidating the proceeding. Ratio |
The lie argument that the members of the Lodge were both the prosecutors and the judges, and therefore the principles of natural justice have been violated has not much force in the context of the present enquiry. Ratio |
We are dealing with a case of a Lodge and not with that of a tribunal or a court. Ratio |
It is true that the earlier resolution, exhibit II 4 , shows that 11 members of the Lodge were not well disposed towards the appellant; but here we are concerned with the complaint filed by the 2nd respondent. Ratio |
Notice of the complaint was given to all the members of the Lodge. Ratio |
It may be that some of them did not like the appellant, and one of them is the complainant himself But 22 members of the Lodge met and unanimously held , after considering the complaint and the answer given by the appellant, that he was guilty. Ratio |
If the appellant had any objection for one or some of the members taking part in the meeting, he could have raised an objection, but he did not do so. Ratio |
The rules 18 governing tribunals and courts cannot mutatis mutandis be applied to such bodies as Lodges. Ratio |
We have to see broadly in the circumstances of each case whether the principles of natural justice have been applied. Ratio |
In the circumstances of this case, particularly when we find that the appellant had not raised any objection, we cannot say that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice. Ratio |
Lastly an attempt was made to persuade us to resurvey the entire material to ascertain the correctness or otherwise of the decision of the Lodge. Ratio |
As we have pointed out earlier, civil courts have no jurisdiction to decide on the merits of a decision given by a private association like a Lodge. Ratio |
Both the courts below have held that the Daughter Lodge has acted in good faith in the matter of the complaint against the appellant. Ratio |
That is a concurrent finding of fact; and it is the practice of this Court not to interfere ordinarily with concurrent findings of fact. Ratio |
There are no exceptional circumstances for our departing from the said practice. Ratio |
In the result, the appeal fails and is dismissed. RPC |
No costs. RPC |
Appeal No. 717 of 1963. FAC |
Appeal from the judgment and order dated April 30, 1962, of the Madhya Pradesh High Court at Jabalpur in Misc. FAC |
Appeal No. 75 of 1961. FAC |
S.T. Desai and LN. FAC |
Shroff, for the appellants. FAC |
G.S. Pathak and Remeshwar Nath, for respondents Nos. 1 to 3. FAC |
A. V. Viswanatha Sastri and Remeshwar Nath, for respondents nos.4 and 5. FAC |
November 19, 1963. FAC |
The Judgment of A.K. Sarkar and J.C. Shah, JJ. was delivered by Shah, J. M. Hidayatullah, J. delivered a separate Opinion. FAC |
SHAH, J. Vrajlal Manilal & Company, a firm consisting originally of four partners (1) Manilal Anandji, (2) Jivrajbhai Ujamshi Sheth, (3) Punjabhai section Patel, and (4) Chintamanrao, has been doing business of manufacturing bidis at Sagar and Delhi since 1944. FAC |
From time to time fresh partnership deeds were executed readjusting the shares of the partners admitting new partners and adjusting the shares of the partners. FAC |
In 1954 Manilal Anandji retired from the firm and on January 27,1955, Punjabhai section Patel died. FAC |
On February 16, 1956, a fresh deed of partnership was executed. FAC |
The firm then consisted of eight partners Jivraj and his two sons being entitled in the aggregate to annas /4/3 share in a rupee in the profits, Chintamanrao and his two sons to annas /7/6 share in a rupee, and the two sons of Punjabhai section Patel to the remaining annas /4/3 share. FAC |
By paragraph 7 the books of account were to be maintained by the managing partner, the financial year of the firm 483 being from Diwali to Diwali, and profits and losses were to be ascertained at the close of the year and a copy of the balance sheet with profits and loss statement was to be supplied to each partner, an... |
By paragraph 12 it was stipulated that a partner desiring to retire from the partnership may, unless the other partners agreed to ' his retirement otherwise, do so after giving six months notice to all the partners in writing terminable at the ' end of the year i.e., the Diwali immediately following the date of the not... |
Paragraph 13 provided: "In case of retirement of any partner the valua , tion of the Firm will be made on the following, basis for the purpose of settling the account of the retiring partner: "(a) Goodwill of the Firm: That is, right to use the trade marks, trade labels and the name of the Firm. FAC |
In making the valuation of the above the net profits of the last five years will be taken as the value of the Goodwill of the Firm. FAC |
(b) Outstandings, Udhari (Recoveries) : That is, loans and debts outstanding against persons other than partner will be calculated at 85 % of the book value of the Firm. FAC |
(c) Stock of Raw Materials: That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all, such stock and moveables, thus valued shall be given to the remaining partners. FAC |
(d) Immoveable Property: Such as buildings, godowns, gardens, lands etc. FAC |
will be valued at the parchase price or their book value in the books of the Firm as the case may be, and all these shall be given to the remaining partners. FAC |
" 484 Paragraph 16 incorporated a clause for reference of disputes between the partners relating to the business or dissolution of the firm to arbitration. FAC |
In April 1958 Jivraj and his two sons appellants in this appeal desired to retire from the partnership, and a deed of reference was executed on April 16, 1958, appointing Ambalal Ashabhai, Becharbhai Somabhai and Chaturbhuj Jasani as arbitrators to decide the dispute. FAC |
It was recited in the deed of reference that since Jivraj and his two sons had expressed a desire to retire and the remaining five partners had agreed to take over the entire business of the firm, it was "necessary to effect the final account of the retiring partners with regard to the matters mentioned below, as far p... |
Goodwill of Trade Mark.Property. 3.Credits (Udhari) 4.Dead stock. FAC |
Stock in trade i.e. the raw material, or the finished goods invested in the business. FAC |
Other matters connected with these transactions. FAC |
Profit and Loss Account. FAC |
The Receipt ond Payments account of the amounts of the partners. FAC |
By Paragraph 6 it was provided that the firm shall be continued by the remaining five partners and that those five partners shall make full payment to the retiring partners Jivraj and his two sons of such amounts, in such manner, and on such conditions, as shall be decided upon by the arbitrators. FAC |
Paragraph 7 set out the powers exercisable by the arbitrators in the matter of calling for production of account books and documents and other information from the parties. FAC |
The deed of reference was subsequently modified, and the parties agreed that the reference be 485 " carried out by the sole arbitrator Shri Jasani". FAC |
Pursuant to this modified agreement, Jasani entered upon the reference, and made his award on January 9, 1959. FAC |
By his award he fixed the value of the goodwill of the entire firm at Rs. 32 lakhs including in that amount the "depreciation and appreciation of the property, dead stock and dues to be recovered". FAC |
He also fixed the profits for the broken period of Samvat year 2014 from the commencement of the year till April 19, 1958 at Rs. 2,80,000 and after adjusting the personal accounts of the three retiring partners awarded to Jivraj Rs. 3,46,223.58 nP. to Amritlal son of Jivraj Rs. 4,04,519.99 nP. and to Bhagwandas son of ... |
This award was filed in the Court of the Additional District Judge, Sagar, under section 14(2) of the Indian . FAC |
Chintamanrao and his sons then applied for an order setting aside the award on diverse grounds. FAC |
In this appeal by the retiring partners, two heads of objections only survive for determination and we propose to refer only to those two heads, viz: (1) That the arbitrator in making his award travelled outside his jurisdiction delimited by the agreement of reference in that in fixing Rs. 32 lakhs as the value of the ... |
(2) That the arbitrator was guilty of legal misconduct in that he had in the course of arbitration proceedings admitted in his record 486 a statement of account prepared by Jivraj and his sons without the knowledge of the other partners and without giving them an opportunity to make their submissions thereto. Ratio |
The retiring partners resisted the petition to set aside the award and submitted that they were entitled to have the assets of the firm in which they had a share, fixed at an amount much in excess of Rs. 32 lakhs and that the arbitrator had not overstepped his jurisdiction in fixing the value of the goodwill at Rs. 32 ... |
The Trial Court upheld these and certain other objections, and set aside the award. RLC |
The High Court confirmed the decision of the Trial Court, insofar as it related to the two objections hereinbefore set out. RLC |
The question which we propose to consider first is: whether in making the valuation of the firm" for determining the share to be paid to the retiring partners, did the arbitrator overstep the limits of his authority under the agreement of reference? Ratio |
It may be recalled that by cl. 6 of the arbitration agreement the remaining partners had to "make full payment to the retiring partners of such amount as may be decided" by the arbitrator. Ratio |
But in determining the amounts to be awarded to the retiring partners, the authority of the arbitrator was restricted. Ratio |
He had, in determining the amounts due to the retiring partners, to take "final accounts with regard to the matters" set out in cl. 4, "as far as possible, according to and taking into consideration the terms and conditions of the Partnership agreement". Ratio |
By this direction the clauses of the partnership agreement were incorporated in the agreement of reference. Ratio |
The "final account" of the retiring partners with regard to the eight matters 487 specified in cl. 4 was undoubtedly to be made, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement. Ratio |
The language used in the deed of reference is of compulsion, not of, option: it means that if there be in the partnership agreement any term or condition, which deals with any particular matter of which an account was to be taken under cl. 4 of the agreement of reference, it has to be strictly followed. Ratio |
Use of the expression "as far as possible" did not confer any discretion upon the arbitrator to ignore the terms and conditions of the partnership agreement. Ratio |
In paragraph 13 of the partnership agreement, in making "valuation of the firm" for the purpose of settling accounts, the value of the goodwill, the outstandings, stock of raw material and moveable and immoveable property had to be taken as directed therein. Ratio |
In the matter of valuation of the goodwill of the firm, therefore, no discretion was left to the arbitrator:the value of the goodwill had to be the aggregate ofthe net profits of the last five years. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.