Debendra Nath Dutta vs Hirendra Nath Dutta

P.N. Mookerjee, J.—This appeal arises out of a proceeding for the filing of an award in court and making it a rule of court. The proceeding, as required by law was registered as a suit and it arose under the following circumstances.

The parties who are brothers had certain disputes in regard various properties, owned by them, and these were referred to an arbitrator, named, Shri Nripendra Nath Bose, who has deposed as P.W. 1 in the present case, by a written agreement, dated March 7, 1941. The reference was made out of court and without the intervention of court. But the reference, as it appears, covered dispute at least on two matters, which concerned certain pending proceedings in court. We will revert to this aspect of the matter at a later stage.

The arbitrator, P.W. 1, gave his award on May 4, 1947. The present application for filing the award was made in court on February 18, 1948, the arbitrator''s award having been registered in the meantime on September 9, 1947. Along with the present application a certified copy of the said award, obtained from the Registration Office, was filed by the applicant who described himself as the Plaintiff in the instant suit. The original award, however, remained with the arbitrator. Upon the above application, notices were issued to the parties and, eventually, there was also summons, taken out upon the arbitrator, Calling upon him to produce, the original award in court. In. pursuance of the said summons the arbitrator filed the said original award in court on December 7, 1948.

To the Plaintiff''s above application, objections were filed by the opposite parties who were the Defendants in the suit and their main plea was that the Plaintiff''s application was barred by limitation.. They also contended that the reference and the award were invalid as they included and covered pending proceedings in court, which could not be separated, so far at least, as the award was concerned, from the other matters, dealt with by the same; that the award was vitiated by the arbitrator''s misconduct and particularly by the fact that the Defendants, so far as a very vital and material part of the said award was concerned, had no opportunity of taking part in the same, and, further, that the award was given after the expiry of the time up to which the arbitrator''s authority extended, and that it was unjust and unfair. The learned Subordinate Judge has practically accepted all the defences and dismissed the Plaintiff''s suit, or, in other words, the Plaintiff''s application for the filing of the award in question and making it a rule of court. It is against this decree of dismissal that the present appeal, has been filed by the Plaintiff Appellant.

In the view, which we are taking, it is not necessary to express any opinion on any of the points, raised in the present case, except the two points, which were discussed under Issues Nos. 3 and 8, by the learned trial court. Those two points arise in the following manner:

As we have said above, the disputes between the parties concerned inter alia, two pending proceedings before the court at the time. There were Title Execution case No. 56 of 1940, of the First Additional Subordinate Judge''s Court at Alipore and Money Suit No. 130 of 1940 of the Munsif''s First Court, Sealdah.

There is no dispute that these proceedings wore pending at the time, when the reference in question was made and that the said reference included the subject-matter of these proceedings too. There is no dispute also that the award dealt with, and decided the matters, covered by these two court proceedings, and the said decision cannot be separated from the other parts of the aforesaid award. In the circumstances, it seems to us that the reference and the award, following upon or in pursuance of the same, are not such as are contemplated under the Indian Arbitration Act. The said Act obviously contemplates, in cases of matters, pending before the court, reference only through the intervention of court. (Vide, in this connection, Rampratap Chamria Vs. Durgaprasad Chamria and Others, which, though under the earlier law, throws considerable light on the present question). That, admittedly, was not done in the, present case and, accordingly, the disputed award, at any rate, cannot be enforced under the Indian Arbitration Act. (Vide, in this connection, I.G.H. Ariff and Ors. v. Bengal Silk Mills Ltd. and Anr. AIR (1949) Cal 350) which view would be fatal to the Plaintiff''s present suit.

Our attention in this connection has been drawn by the two asides to the two decisions of this Court, one in the case of Jugaldas Damodar Modi and Co. Vs. Pursottam Umedbhai and Co., and the other in the case of Financiers and Fibre Dealers Ltd. Vs. Sankarlal Sardar, . While it seems to us that the first of the above two cases would be quite in consonance with the view, taken above by us, the second is clearly distinguishable. On the said cases, nothing further need be said on the present occasion.

As we have said above and that follows from the general principles, which appear to flow from the Indian Arbitration Act and are sufficiently clear from its structure, object and scope,- the present reference would not be supported or covered by the said Act and, accordingly, the resulting award, at any rate, cannot be enforced under the said statute. In that view, we would hold that the disputed award in the instant case cannot be directed to be filed in court, nor can a decree be passed upon it, making it a rule of court.

The above view is sufficient to uphold the decree of dismissals passed by the learned trial Judge. But there is another reason which is equally relevant and equally strong for supporting the said decree of dismissal, passed by the learned court below. It appears that the bulk of the properties, owned by the parties, and over which the dispute ranged, was at Mihijam. The arbitration proceedings, although they started some time in the year 1941, had continued even in 1946 and it was only on October 7, 1946, that the arbitrator intimated to the parties that he would be proceeding to Mihijam for partition of the properties there. This was long after the original time, given to the arbitrator for submitting his award and also the extended time for the said purpose under the consent of the parties had expired and, as a matter of fact, there is nothing on the record to indicate that the parties ever authorised the arbitrator to proceed with the arbitration proceeding after April, 1946. In such circumstances, it was only natural that some of them at least might object to the arbitrator''s starting or continuing the said proceedings at Mihijam and, as a matter of fact, on receipt of the notice, dated October 7, 1946, from the arbitrator intimating his intention, to proceed to Mihijam on October 12 for partition of the properties there, the Defendants who are the Respondents before us wrote to the arbitrator on October 11, asking him not to proceed to Mihijam for the aforesaid purpose. This protest was, admittedly, received by the arbitrator but, in spite of it and in disregard of the same, the arbitrator proceeded to Mihijam and, there, with the assistance of the Plaintiff and of one who has been mentioned several times by the arbitrator, namely, Girish Bakshi, who, according to the Plaintiff, was acting on behalf of the Defendants with their authority, completed the task of partition of the Mihijam properties. The authority of this Girish Bakshi to act on behalf of the Defendants in the matter of the above partition has been seriously challenged by them and all that has been proved by the Plaintiff in this case on the point is that Grirish was actually at the time residing in one of the house of the parties at Mihijam and he was an officer of Defendant No. 1. That, by itself, however, would be hardly sufficient, particularly in the context and back-ground of the Defendants'' protest to the arbitrator''s going to Mihijam at all for the purpose of partitioning the Mihijam properties, to show that Grirish had authority to work on behalf of Defendant No. 1 in the matter of the said partition before the arbitrator. Indeed, in circumstances like the present, special and specific authority in that behalf ought to have been strictly proved, if the Plaintiff wanted to succeed in his application. No such authority, however, has been proved and the evidence on the point is inconclusive and insufficient. In such circumstances, it seems to us that the learned Subordinate Judge was right in holding that, in the facts and circumstances of this case, Grirish Bakshi could not be held to have been an authorised representative of Defendant No. 1 in the matter of the above partition of the Mihijam properties by the arbitrator. It is clear, then, that the said partition work was done by the arbitrator in the absence of Defendant No. 1 and, under such circumstances, his award in the matter cannot be accepted as valid or in conformity with law.

In the above view, it is unnecessary for us to go into the other questions, discussed by the learned Subordinate Judge, that the award was unjust and unfair, so far as Defendant No. 1 is concerned. We may just point out, however, that that finding, even if it is correct, may not be very material for the purpose of deciding whether the instant award should be made a rule of court and a decree should be passed upon it. The learned Subordinate Judge has not said and has not found that, upon the face of the said award, any injustice or unfairness appears. He has found it only upon an elaborate discussion of extraneous evidence. In such circumstances, it is, at least, not quite free from doubt whether, upon the sole ground that it might have been unfair of unjust, as aforesaid, the instant award can be refused recognition by a Court of law.

We may also point out that, on the question of limitation, although, treated as an application u/s 14, the Plaintiff''s present application may be hit by the law of limitation, (vide Article 178 of the Indian Limitation Act), it is open to contend that, when the award was actually filed by the arbitrator in court, though in pursuance of a summons, issued by the court for production of the same as a witness, that may be sufficient to bring, into operation Section 17 of the Act, enabling the court to keep the award on its file and to pass a decree on the same, provided there we no other legal objections to or against the same. We have already, held, however, that the present award suffers from infirmities, which prevent the court from making it a rule of court In such circumstances, even the above view on the question of; limitation would not be of any assistance to the Plaintiff.

There is one other matter to which reference should be made before we conclude this judgment. That relates to the question of costs. The learned Subordinate Judge has awarded to the Defendants costs, totalling roughly Rs. 2,400 against the Plaintiff. Those costs include commission cost to the extent of Rs. 900, paid by Defendant No. 1, and pleader''s fee to the Defendants to the tune of Rs. 800 each. As, in our opinion, the question whether the award is unjust or unfair is not a material matter for consideration and as the commission cost had to be incurred only for that purpose, we do not think that Defendant No. 1 would be entitled: to ask for the same in the present proceedings. We do not also think that, in the circumstances of the present case, where, in the arbitration proceeding, the Plaintiff also had to incur a substantial amount by way of commission cost, and when the present application is failing principally on technical grounds, the Defendants should be awarded any cost against the Plaintiff.

In the above view, we would dismiss this appeal but direct! the parties to bear their own costs throughout.

In the view, which we have taken and upon which the appeal has been disposed of as above, no question of receiving the additional evidence, as per Appellant''s application is this Court, filed on March 1, 1961, arises. That application is, accordingly, rejected without costs. "We may add further that, even upon that evidence, all that would be proved would be that the pending court proceedings terminated before the disputed award. That, however, would be wholly immaterial, as, admittedly, those proceedings were pending at the time of the reference to arbitration and there was, then, that is, at that time, no agreement,- and no intention even,-for withdrawal or dismissal of the same as in Financiers and Fibre Dealers Ltd. Vs. Sankarlal Sardar, .

Niyogi, J.

I agree.