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i) The arbitration agreement dated August 18, 1997 describes Chandmal Agarwala as representing Pooja Construction Company in the capacity of its partner.

Chandmal also signed such agreement on behalf of Pooja Construction Company as its partner. However, the partnership deed of the firm shows that Chandmal was never a partner therein.

ii) Although the arbitral proceeding was filed against Pooja Construction Company as respondent, Chandmal entered appearance and contested the proceeding on behalf of the said firm. The arbitral award records that Chandmal, though purported to have represented the partnership firm from inception of the proceeding for about one and a half years, later denied being a partner or having entered into transactions on behalf of the firm.

Since no partner of the Pooja Construction Company was served and no fresh summons was issued in the present matter even after the arbitrator having found that Chandmal was not a partner of the respondent-firm, the arbitral proceeding could not have been adjudicated by the arbitral tribunal at all. In this context, learned counsel for the petitioner refers to the judgment reported at AIR 1964 SC 581 [Gajendra Narain Singh vs. Johrimal Prahlad Rai]. Paragraph no. 6 of the said judgment reads as follows:

Such ratification was bolstered when, despite notice of the arbitral proceeding having been served on Pooja Construction Company itself, it was the same Chandmal (who was 'co-incidentally' the father of the partners of the said firm) who represented the firm from inception of the proceeding before the arbitral tribunal.

Thereafter, when the arbitral proceeding matured, Chandmal, with the air of a sorcerer, chose to disclose that he was neither a partner nor could, in law, represent the partnership firm. The arbitrator, rightly, saw through such deceit and fixed responsibility for the acts of Chandmal, acting on behalf of the award-debtor firm, on the said firm. Since the firm (and, as a corollary, its partners) had ratified its representation by Chandmal (the patriarch of the family) at every stage, the firm and its partners would be bound by Estoppel, in any event, and debarred from disowning the actions of Chandmal.

Even if Chandmal was not a partner of the award-debtor firm, there was no bar in law for the firm and/or its partner to authorize him to represent the firm at every stage. Absence of such authority was a question of fact and a subject-matter to be raised in the arbitral proceeding itself. It was not a question of such stature that it would vitiate the award or render it null, by denuding the arbitral tribunal of its inherent jurisdiction or authority to decide the dispute.

Hence, in the circumstances, the points urged by the petitioner Mahendra would all be barred by the principle of res judicata and/or constructive res judicata, in view of the award having attained finality, having not been challenged for over one and a half decades under Section 34 of the 1996 Act or otherwise, before any competent forum.