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Samal Nathu and ors. Vs. Jaishankar Dalsukram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom254
AppellantSamal Nathu and ors.
RespondentJaishankar Dalsukram
Excerpt:
.....what is to happen if an objection is made good, section 526 is silent, but it is plain that the cause contemplated in section 525 having in such ft case been shown, the court ought to refuse to file the award. if the objection is obviously unfounded, the court may well regard it as no cause against the filing;.....the facts relied on in support of this contention were denied by the party seeking to get the award filed, and the subordinate judge, after an investigation, decided against the objections and ordered that the award should be filed. he did not regard the objection as a frivolous or colourable one, but as of a serious character; but so regarding it, he thought he was competent to deal with it and dispose of it on the hearing of the application, and acted accordingly.2. the first question before us is, whether, under these circumstances, the subordinate judge was right after a serious ground of opposition had been disclosed, in dealing with such a matter of litigation on the application before him, or whether he ought not to have refused to file the contested award and left the.....
Judgment:

West, J.

1. The construction of Sections 525 and 526 of the present Code- of Civil Procedure has been the subject of several decisions in the High Courts, which take very different views of the subject. In the case before us, when an application was made to the Subordinate Judge to file the award, an objection, amongst others, was raised on the ground that the arbitrators had made their award several months before the date of the one brought in to be filed, and that as their authority had thus been exhausted, the latter so-called award was not really an award, but merely a sham award induced by improper influences. The facts relied on in support of this contention were denied by the party seeking to get the award filed, and the Subordinate Judge, after an investigation, decided against the objections and ordered that the award should be filed. He did not regard the objection as a frivolous or colourable one, but as of a serious character; but so regarding it, he thought he was competent to deal with it and dispose of it on the hearing of the application, and acted accordingly.

2. The first question before us is, whether, under these circumstances, the Subordinate Judge was right after a serious ground of opposition had been disclosed, in dealing with such a matter of litigation on the application before him, or whether he ought not to have refused to file the contested award and left the applicant to the remedy of a suit on it as a cause of action. Now Section 525 makes no provision for the trial of a question of whether the reference has been really made or whether the award is prima facie void. It seems rather to assume that the reference and the award are, of facts, undisputed. The authority, however, to inquire into the reality and validity of the transaction, might, no doubt, be inferred from the direction, that the Court is to cause notice to fete served on all parties to the arbitration calling on them to show cause why the award should not be filed. No better cause could be conceived why an. award should not be filed than that: there had been no submission to arbitration. But, then, an objection of that kind, and specially one not admitting of simple statement and disposal, may well give rise, as in the present instance, to a long inquiry into difficult questions of fact and of law, such as, are commonly involved in a contest amongst members and ex-members of a partnership. No provision is made for the trial of such questions; the provision that is made by Section 526, which must be read along with 525 as its intended , complement, is that the award must be filed, unless one of the objections specified in Sections 520 and 521 is established. These objections all relate to a case in which the reference and the award are accepted facts; and thus Section 526 points to them as admitted facts under Section 525. As to what is to happen if an objection is made good, Section 526 is silent, but it is plain that the cause contemplated in Section 525 having in such ft case been shown, the Court ought to refuse to file the award. It can enter on the inquiry into such objections as are specified, and can finally dispose of them.

3. This close connexion of Sections 525, 526, and the limitation imposed on the inquiry to be made by the Court under the latter section seem to show conclusively that no other inquiry was intended by the Legislature to be made on the application to file an award. The facts prima facie constituting a valid proceeding are assumed just as when a reference has been made by a Court, assumed as a basis for the further proceedings for which provision is made. But as the reference has not been made by a Court, and the submission and award therefore may be disputed, the absence of a provision for dealing with such a dispute, coupled with the express provision for dealing with collateral objections, seems to us to imply that a dispute of the former kind was not meant to be dealt with on the application to file an award, The Legislature, had it contemplated such a cause against filing as one proper for summary and final investigation, would, we think undoubtedly have said so, and provided a rule for dealing with the case. In the absence of a rule, we think the inquiry cannot properly be made in that way when a serious and material objection is disclosed. That in itself is, we think, a cause why the award should not be filed, as contradicting the hypothesis on which the procedure prescribed in Sections 525 and 526 is founded. If the objection is obviously unfounded, the Court may well regard it as no cause against the filing; but if it is substantial, than the party urging it ought, we think, not to be deprived of the advantage of being a defendant rather than a plaintiff and of having an appeal open to him in the event of an unfavourable decision. Were the law clear and explicit, and so expressed as to deprive the person likely to be injuriously affected of these advantages, we should have to apply it; but where a rule is defective, as in this case, we should assume a reasonable and consistent line of thought in the legislature rather than the contrary in our endeavours to give full effect to its meaning.

4. For these reasons we set aside the order of the Subordinate Judge and direct that the award be not filed or be deemed not to have been filed. Costs to be paid by the opponent.


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