Sm. Toolsimony Dassee and Others vs Sm. Sudevi Dassee and Others

Maclean, C.J.—This is an appeal from an order of Mr. Justice Sale, dated the 23rd March 1898, discharging a rule to set aside an award made in the suit on the 12th January 1898. The suit was to recover a sum of nearly Rs. 13,000, and was referred to arbitration on the 22nd February 1897. The same preliminary point has been taken in this ease, viz., that an appeal does not lie, as was taken in the Appeal (No. 10 of 1898) in which judgment has just been delivered.* I have dealt with that point in that judgment, and what I there said is to be taken as equally applicable to the present case, and as incorporated into my present judgment.

I therefore at once pass to the merits which differ materially from the last case.

There is no dispute as to the facts. There is no doubt that the arbitrators held their first meeting on Sunday, the 9th January, and that no notice of this meeting was given to the Appellants. This was, to put it mildly, an extraordinary proceeding. They then adjourned until the next day, the 10th January, at 6 P.M. In the meantime, the Defendants, through their attorney Mr. Rutter, had protested, and asked the arbitrators not to proceed, as they intended to make an application to the Court, obviously with a view to setting aside the reference. The arbitrators took no notice whatever of this protest, but proceeded with the arbitration on the 10th, in the absence of the Defendants. This, to say the least, was an ill-advised action on the part of the arbitrators. On the 11th, Mr. Rutter, the Defendants'' attorney, received a notice that the arbitrators would hold a meeting the next day at 8 a. m. A meeting was held on that day and hour, the Defendants were not present, and an award was made decreeing the suit with costs.

The question is whether an award made under these circumstances ought to stand; I think not. In my opinion the arbitrators put themselves in the wrong ab initio, by holding their first meeting behind the backs of the Appellants. It is all very well to say nothing was done at that meeting, but how do we know what may or may not have been said by the Plaintiffs. They may, for ought we know, have made ex-parte statements to the arbitrators about the case, they may have instilled some poison into the arbitrators'' minds to the prejudice of the Defendants, and so conducted themselves as to warp the judgment of the arbitrators in relation to the case to be subsequently presented by the Defendants. In holding this meeting the arbitrators do not appear to me to have acted with that absolute impartiality, with that sense of fairness to both sides, which is so essential, so preliminary an element in oases of this class. I am by no means prepared to say that this ex-parte meeting is not alone sufficient to warrant the Court in setting-aside the award. But apart from this, they did not give the Defendants a fair and reasonable opportunity of laying their views before them : They appear to me to have "rushed" the hearing of the case. This was a fresh arbitration relating to a fresh subject-matter unconnected with the previous arbitration in suit (586, and in which a substantial sum was in issue. What do the arbitrators do? They hold their first meeting on a Sunday without any notice to the Defendants, they send on that Sunday a notice saying that the next meeting will be held the next day (Monday), the Defendants'' attorney protests and asks them to stay their hands, they don''t answer his letter, they go on in the absence of the Defendants and they make a final award two days after against them. Whether or not the arbitrators were bound to accede to Mr. Rutter''s request not to proceed pending the suggested application to the Court, I. am clearly of opinion that the arbitrators, who wore purporting to'' act judicially, ought to have proceeded with much more deliberation. It was a strong thing to proceed after Mr. Rutter''s letter, without giving any further intimation that they intended to proceed, or taking any notice of that letter. I repeat that they did not give the Defendants a fair and reasonable opportunity of being heard, and this they ought to have done, and not having done that, they, under all the circumstances, have been guilty of such misconduct--not moral misconduct--as is sufficient to vitiate the award. If, as has been held, it is misconduct for an arbitrator not to adjourn in order to enable one side to be represented by counsel, when the other is so represented, it is difficult to say that the action of the arbitrators in the present case does not constitute misconduct. In my opinion the award must be set aside, and I am fortified in this conclusion by the circumstance that the learned Judge in the Court below would appear to have arrived at his decision with considerable misgiving.

The appeal therefore will be allowed and the rule made absolute with costs, both here and in the Court below. It is conceded that the Appeals 12, 13, and 14 of 1898 are analogous in principle to the case I am now considering, and that the decision in the present appeal governs those cases. The appeals, therefore, in those three cases must be allowed, and the rule in each case made absolute with costs both here and in the Court below.

Prinsep, J.

I am of the same opinion and have nothing to add to the judgment just delivered..

Ameer Ali, J.

I am of the same opinion.