1. On reading the correspondence I find that Mr. Anderson's client, defendant No. 2, has not waived his right to object to the validity of the award, on the ground that it was not delivered within the time allowed under the order of the Court, although it was made and signed within that period.
2. Mr. Andarson relies on the interpretation placed by the Court at Allahabad in Behari Das v. Kalian Das I.L.R. 8 All. 543 on the last clause of Section 521 of the Code of Civil Procedure, viz. 'and no award shall he valid unless made within the period allowed by the Court.' On considering the clause along with Sections 508 and 514 the learned Judges held it to be equivalent to a rule that the award must be delivered within that period. No other reported case dealing with the clause has been shown me. The clause appears in the same words in Section 521 of the Code of 1877, and a similar enactment is found in Act VIII of 1859 in the proviso to Section 318. At the hearing I noticed that the language of Section 516, which treats the making, signing and filing of an award as different acts, causes some difficulty in adopting this interpretation. In Section 525 the making and filing are again distinguished. By Section 508 the Court refers the matter in difference which the arbitrator is 'required to determine,' and fixes a time for the 'delivery of the award.' In Section 514 provision is made where the 'arbitrators cannot complete the award within the time specified in the order. The Court may, if it thinks fit, either grant a further time and from time to time enlarge the period for the delivery of the award, or &c.;' There completion and delivery seem to be distinguished.
3. The English cases cited by Mr. Jardine on Stat. 3 and 4 Will IV. cap 42, Section 39--Browne v. Collyer 20 L.J.Q.B. 426 ; In the matter of an arbitration between James Ward and The Secretary of State for the War Deportment 35 L.J.Q.B. 53 --show that in England it has long been open to the Court, in a case like the present, to enlarge the time: see Rusell on Awards, 544; and as to the cases in which the Court will exercise the power Edward v. Davies 23 L.J.Q.B. 278 . It is possessed by the Courts of Equity--In re Warner and Powell's Arbitration L.T. 3 Eq. 261 --and may be applied where the arbitrator ahs not made his award within the period fixed by the parties themselves--May v. Harcourt 13 Q.B. Div. 688 . It was also pointed out, at the hearing that the decision in the Allahabad case depended on, another circumstance besides the omission to file the award in Court within the period provided by the order of reference.
4. The question before me being of general importance, and the interpretation contended for by Mr. Anderson being at first sight contrary to the English decisions and legislation and the sprit of such enactments as Section 578 of the Civil Procedure Code, I took time in order to see what other and more recent authorities I could find, besides those cited, bearing on the point. I will now refer to the cases I have found and think applicable.
5. There is the case of Simson v. Venkatagopalam I.L.R. 9 Mad. 475 . The head note mentions the 'return' of the award; but the judgment shows that the award Was not made in the fixed time, and there was apparently no point raised about the filing being beyond the fixed time. The same may, I think, be said of the case Bhugwan Dass v. Nund Lall Sein I.L.R. 12 Cal. 173 . Sections 514 and 521 of the Civil Procedure Code (Act XIV of 1882) are substitutes to a certain extent for the rules contained in Sections 318 and 324 of Act VIII of 1859 which I proceed to quote.
6. Section 318.--'When the arbitrator or arbitrators shall not have been able to complete the award within the period specified in the order, from the want of the necessary evidence or information, or other good and sufficient cause, the Court may from time to time enlarge the period for the delivery of the award, if it shall think proper.' (Then follows a rule about the umpire): 'Provided that an award shall not be liable to be set aside only by reason of its not having been completed within the period allowed by the Court, unless on proof that the delay in completing the award arose from corruption or misconduct of the arbitrator or arbitrators, or umpire, or unless the award shall have been made after the issue of an order by the Court superseding the arbitration and reealling the suit.'
7. Section 324--'No award shall be liable to be set aside except on the ground of corruption or misconduct of the arbitrator or umpire, Any application to set aside an award shall be made within ten days after the same has been submitted to the Court.'
8. Section 320 corresponds with Section 516, and provides that when an award shall be made it shall be submitted to the Court under the signature of the person who made it.
9. The older law, including the very point I have to decide under the present Code, received interpretation from Mr. Justice Norman in the case of S.M. Jagatsundari v. Sonatan 5 B L.R. 357 and 362 O. Civ. If Section 320 of the old Code be compared with Section 516 of the new, it would appear that his judgment was brought to the notice of the Legislature. Comparing Sections 315 and 318, (to which Section 508 about the reference and Section 514 correspond), the learned Judge observes: 'These two sections show that the Act contemplated the award as completed before it is actually submitted to the Court. No doubt, when there are several arbitrators, the judicial act of making an award must be the act of all the arbitrators. They must all be present together, and concur in that which is to stand as their joint judgment. But when the award is completed, and the functions of the arbitrators as judges are at an end, it matters little through what channel the award is submitted, or, in other words, by whom it is submitted to the Court. I think, therefore, that the reason of the thing, as well as the change in the language, shows that the completion and delivery of the award mentioned in Sections 315 and 318 is something different from the submission of the award to the Court under Section 320.'
10. Now, although by Section 516 of the new Code (Act XIV of 1882) the arbitrators are to cause the award to be filed in Court, the Legislature has adhered to the words 'complete' and 'delivery' while using in Section 616 the words 'caused to be filed' instead of 'submitted,' and in Section 521 'made' instead of 'completed.' It would be contrary to this decision to hold that 'made' includes the filing of the award, and I think it would also be a strain on the language. The phrase 'make an award' is frequent in Acts of Parliament, e.g., the Common Law Procedure Act, 1854, Section 15, 'shall make his award under his hand.' The making of an award is different to the publishing of it--Muselbrook v. Dunkin 9 B. 605 ; Mac Arthur v. Campbell 5 B. and Ad. 518. As to what is a delivery, see Comyn's Dig., Tit. Fait, A 3 and 4 and B 5; Armitt v. Breame 1 Sal. 75. In Brown v. Vawser 4 East. 584 the delivery is distinguished by Lord Ellenborough, C.J., from the completion of the award in these terms: 'The award was complete when it was ready to be delivered within the time appointed, and prior to the actual delivery; the arbitrator was then functus officio; and if any accident had happened afterwards to prevent his making a delivery, it would still have been an award.' See also cases in 1 William's Saunders 582 under Veale v. Warner: Henfree v. Bromley 6 East. 308 is another authority on the principle.
11. On careful examination of the chapter in the present Code about arbitration I see no indication of any intention of the Legislature to altar the law as laid down by Norman, J., following the English practice, but on the contrary different words have been used which have each received judicial interpretation. 'While I have the misfortune to differ from the learned Judges who decided Behari Das v. Kalian Das I.L.R. 8 All. 543 I may remark that the more fully argued case decided by Norman J., does not seem to have been brought to their Lordships' notice, nor the corresponding sections of the older Code. I find, for the above reasons, that Section 514 does not apply, as the arbitrators did actually make or complete the award within the time allowed, although they did not file it within that period. I also find that the last clause of Section 521 does not apply, whereas the earlier part of that section prohibits the Court from setting the award aside. I think in thus ruling I am carrying out the real intent of the Legislature. 'It is the duty of Courts of justice to give that construction which most fairly carries out the manifest purpose Per Stuart, V.C. In re Warne and Powell's Arbitration L.R. 3 Eq. 266 .' 'The course of legislation has been to prevent an arbitration, to which the parties have assented, failing through the mere mistake or inadvertence of the arbitrator'--per Mellor, J, in Lord v. Lee L.R. 3 Q.B. 410 . In the same case, Blackburn, J., after tracing the history of arbitration observes at p. 409: 'Surely it is a very salutary enactment which enables a judge to cure a defect of form, and which the parties might have cured themselves.'
12. The next question is, whether I ought under Section 520 to remit the award in order that the three matters left undetermined may be disposed of by the arbitrators. I think they all come within the terms of the reference, which was of 'tins suit and all matters in dispute between the parties.' The plaint prays for directions about the outstanding debts and books of account of the partnership. As to these matters and as to the disposal of the moneys in the hands of the receiver, I am of opinion that they are matters in difference, and that an affirmative decision is required from the arbitrators: sea Jewel v. Christie L.R. 2 Co. 296 ; Harrison v. Crswick 21 L.J.C.P. 113 ; In the matter of Robson and Railston I.B. & Ad. 723 . The case of Spencer v. Spencer 2 Y. and J. 249 shows the advantage of having an affirmative decision about outstanding debts to prevent further-litigation. I may add, that the plaintiffs consented to the award being remitted when Mr. Anderson's client first proposed that this course should be taken. The latter expenses having been caused by his contesting the validity of the award, I order that he pay his own and plaintiffs' costs. The other defendant to pay his own.