1993 PLP 1359 (MLD)

Upon the hearing of this matter learned counsel agree that in relation to the disputes arising under the undated agreement inter partes, attested on 14-3-1990, Annexure `A' to the application, Mr. Justice (Rtd.) Dorab F. Patel, a former Senior Judge of the Supreme Court of Pakistan be appointed as sole Arbitrator to adjudicate upon the said disputes. It is also agreed between the learned counsel that the previous arbitrator namely, Mr. Kazim Hussain, Advocate, would return the case papers pertaining to the earlier arbitration proceedings between the parties to Mr. Justice (Rtd.) Dorab F. Patel and that learned arbitrator, with or without the assent of the parties may adopt or take recourse to any such record or part thereof. The arbitration fee paid to the former arbitrator and appropriated by him would not be refundable to any body. Tentatively and by consent, arbitration fee for the present arbitration, to be paid directly to the learned sole arbitrator by the parties, is fixed at Rs.40,000 to be shared equally between the plaintiff and the defendants that is to say the plaintiff contributing 50% and balance the defendants. Learned counsel also suggest that the sole arbitrator may be requested to expedite the disposal of this matter, which without saying is naturally expected from an arbitrator enjoying such high status. While the learned counsel agree for the disposal of the main application under sections 8 and 20 of the Arbitration Act in. the foregoing terms they do not agree as regards the interim relief s which are sought by the plaintiff in this case by separately praying for an order of interim injunction and appointment of a receiver in respect of the businesses, which are the subject-matter of dispute in these proceedings. It is, therefore, necessary to pass relevant orders on merits. Having heard the learned counsel it appears to me that the plaintiff has approached this Court somewhat belatedly for interim relief and whatever be the merits of the controversy as injunction cannot be issued and a receiver cannot be appointed on such delayed applications, particularly when it is claimed in defence that the plaintiff is not currently and effectively, participating in the business. However, the agreement, aforesaid, is an admitted document. It is also admitted that the business was transacted jointly for some time. Whether or not the subsequent events are admitted is immaterial. The important thing is that the disputes between the parties are continuing and appropriate orders are to be passed so as to maintain equities in the case. In other words, it is to be ensured that while the arbitration proceedings are going on none of the parties is exposed to any avoidable hardship nor the fruits of the proceedings are denied to the person who ultimately benefits from such proceedings. Accordingly, it is a fit case for grant of some interim relief. In the result, the defendants are directed to submit weekly current accounts commencing from the 29th of April, 1992 for the ongoing businesses which were the subject-matter of the agreement aforesaid, whereafter accounts would be submitted every 8th day. As regards the accounts for the period, which has gone by, even though the agreement between the parties is undated and was attested on 14-3-1990 the first paragraph of such agreement postulates that the establishments would be in op-ration from 1-1-1990 and the third paragraph stipulates that from such date all profits and losses shall be shared on an equal basis between the Directors. It is thus obvious that the mutual relationship came into effect from 1.-1-1990 and accounts which are to be submitted for the period preceding this order have to be from 1-1-1990. Serious objections, however, have been taken by Mr. Qazi Faiz Essa for submission of these accounts. Learned-counsel has contended that it would create difficulties in the way of the defendants. Further, learned counsel has urged that the aforesaid agreement stands frustrated between the participants. As to the first of these contentions, it is obvious that income-tax returns and audit reports must be a continuing exercise of the running concerns in question and accounts in the ordinary course must have been maintained. Furthermore, if there is a dispute as to the entitlements of a particular business it is only fair that one who runs that business to the exclusion of the other maintains proper accounts so that whatever be the ultimate outcome of the litigation no one, as the result, is exposed to unnecessary prejudice. Keeping in view all such` factors a reasonable period is allowed to the defendants to submit accounts w.e.f. 1-1-1990 and up to the date of this order. Such period for submission would be a month from now that is on or before 23-5-1992. So far as the second objection of the learned counsel is concerned whether or not there was a frustration of contract and what rights if any either party has in the context of the disputes is a question in which I would prefer not to delve into, such being within the exclusive province of arbitration proceedings. All that has to be ensured is that, at this stage, an equilibrium is maintained between the parties and that can be maintained only if a just, fair a reasonable order is passed which in the foregoing terms has been passed. Accordingly, the above suit as well as the applications pending in it stand disposed of. H.B.T./M-1744/K Order accordingly.