Anand Das vs Rambhushan Das

Wort, J.—The appellant in this case was the defendant in an action brought by the plaintiff who claimed to be the chela of the defendant. It is quite unnecessary to state the facts of the litigation except in so far as they are relevant to this appeal which is an appeal against the order by the Subordinate Judge superseding an arbitration in the action. The action was commenced in September 1932 and on 6th January 1933, on a petition filed by the parties to the suit, the matter was referred to arbitration by the Subordinate Judge. The learned Judge by his order which is the subject matter of the appeal purports to have acted under para. 8, Schedule 2, Civil P.C., and it is contended by Mr. P.R. Das, who appears on behalf of the defendant appellant, that the learned Judge had no jurisdiction to make the order as it is contended that he based his decision not on matters which properly arose under para. 8, Schedule 2, but on certain allegations made by the parties as to the alleged misconduct of some of the arbitrators.

It is argued that the only jurisdiction to supersede an award is under paras. 5, 8 and 15, Schedule 2, and that the matter in question came under neither one of those paragraphs. The only question for this Court to determine is whether in the circumstances of the case it could be said that the learned Subordinate Judge had exercised the discretion which is obviously given him under para. 8, Schedule 2, in a manner which could be described as unjudicial.

It is necessary to note one or two facts relating to the circumstances of the arbitration in order to determine that question.

The order of reference, as I have stated, was made on 6th January 1933, and this appears to have been received by the five Panches, who had been appointed on 13th January 1933. Nothing seems to have been done until the 17th January when the order sheet of the Panches discloses the fact that one of the arbitrators, Mahant Mahabir Das, had died, and as the terms of reference between the parties made provision for an event of that kind, in due course another arbitrator was appointed and his appointment confirmed by the Court on 2nd February 1933.

I should have stated that, in the first instance according to the order of the Subordinate Judge, the 25th January 1933 was fixed for the submission of the award, to use the words of the learned Subordinate Judge, and on 2nd February 1933, a date to which I have just referred as being connected with the confirmation of the appointment of the new arbitrator on the death of one of the five, further time was given up to the 15th February of the same year for the submission of the award. Ultimately when that day was reached the arbitrators applied for further time up to April of the same year and the learned Subordinate Judge dealt with that application on 17th February 1933, and made the order which is complained of in this case. Meantime certain petitions had been filed, one by the plaintiff and the other by two of the Panches.

The one by the plaintiff alleged misconduct on the part of some of the arbitrators. He was to a very large extent supported by the petitions which were filed by two of the arbitrators, and it is in this connexion that the argument of Mr. P.R. Das and Mr. Sushil Madhav Mullick is advanced.

It is said that it is a sure indication that the learned Subordinate Judge has not acted judicially in exercising his discretion under para. 8, as it will be seen quite clearly from the order that he made that it was not a question of his coming to a conclusion that the arbitrators could not make their award within a reasonable time, but that his view of the matter was affected by these allegations of misconduct.

Mr. Das argued at the commencement of the case that, if that be so, the order of the Subordinate Judge could not stand unless the allegations of misconduct were investigated. But the argument is pushed further than that because it is stated that the only provision in Schedule 2 which allows the Court to deal with allegations of this character is para. 15, and without referring to details of para. 15 it is said--and the statement is correct--that the jurisdiction given to the Court under that paragraph relates to circumstances after the award and not before. The argument results in this: that the Court had no jurisdiction whatever to consider these matters until the award is made and, it is said, that until the award is made, to repeat myself, the Court is helpless in dealing with allegations of misconduct.

The argument is developed in this way: it is argued that para. 3, Schedule 2 and Clause (2) of that paragraph prohibits the Court from dealing with the action or taking cognizance or seisin of it, other than in the manner and to the extent provided, to use the words of the paragraph itself, "in this schedule." Reference is then made to the paragraphs to which I have already referred, namely, paras. 5, 8 and 15, and . it is argued therefore that by superseding the award as the learned Judge has purported to do he has taken seisin of the matters in the action which he had no jurisdiction under the Code to do. But that argument, in my judgment, is based on a misconception of the meaning of sub-para. (2), para. 3, which provides that:

where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this schedule, deal with such matter in the same suit.

It is merely, in my judgment, on a proper construction of that sub-clause, a prohibition against the dealing with the subject matter of the suit so long as the arbitration stands. It was contended, as I have already stated, that even though a clear case was made out of misconduct on the part of some of the arbitrators, the Court would be helpless to deal with the matter. There is a decision of this Court by my learned brother Kulwant Sahay in the case of Lachman Machhua Vs. Moghal Mian, , the substance of which shows that the Court, apart from the Code, has inherent jurisdiction to deal with a matter of this kind.

If I may say so with respect that decision seems to be obviously sound. But it is unnecessary to come to a definite conclusion in this matter, because, in my opinion, the argument which was first advanced by Mr. Das, namely, that although the Judge purported to supersede the arbitration he was in fact doing something for which he had no jurisdiction, cannot stand. It must be held that assuming an arbitration is proceeding in due course and an application is made for the extension of time to the Judge who directed the arbitration, unless something in the nature of an unreasonable delay as Mr. Sushil Madhav Mullick has contended has taken place, it would be difficult to say that the learned Subordinate Judge could out of hand refuse an application for the extension of time and supersede the arbitration.

I do not concede the argument that the learned Judge here has dealt with the matter on the basis of the allegations of misconduct; but I have no difficulty in holding that in applying his mind to the application for extension of time for the submission of the award the learned Subordinate Judge was entitled, and indeed was bound, to take all the circumstances of the case into consideration, and the outstanding facts relating to those matters were these: that as this was a suit fairly of considerable proportions it was likely to last a very long time and it must be held that it was within the contemplation of the parties that by submitting their case to arbitration much time and money would be saved.

The next fact is that the arbitrators in this case proceeded as if they were trying an action in a Court of law. They made little or no progress as will be seen from the order sheet to which I have referred for a fairly considerable time. In addition to that there was an allegation by two of the arbitrators themselves in support of the plaintiff that justice could not be done by that Board of Arbitrators, and without deciding the question of whether the allegations of this misconduct were true or not, the learned Judge was bound to take those allegations into his consideration in coming to the conclusion whether any good would be gained by giving the further time which was asked for.

The learned Subordinate Judge, as we see, said that no advantage would be gained, and if I may say so it would appear from the record in the case that the time the arbitrators asked for would be quite inadequate for the disposal, of the arbitration having regard to the manner in which they were proceeding. In my judgment it is impossible in this case to say that the learned Judge did not exercise his discretion judicially. That being so it seems to me that his order must be affirmed and this appeal dismissed with costs.

Kulwant Sahay, J.

I agree.