Skip to content


Vallabhdas Narandas and Co. Vs. Keshavlal Himatlal - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Judge
Reported inAIR1927Bom428; (1927)29BOMLR660
AppellantVallabhdas Narandas and Co.
RespondentKeshavlal Himatlal
Excerpt:
arbitration-award-examination of arbitrator to ascertain meaning of award-firm as a party to arbitration proceedings-award against firm-enforcing of award against partners in the firm-civil procedure code (act v of 1908), order xxx, rule 1-indian arbitration act (ix of 1899), sections 11, 15.;it is not permissible to a court, in proceedings under the indian arbitration act, to send for an umpire and examine him as to the meaning of ms award. he is functus officio as soon as he publishes his award, and the document must speak for itself. where the ambiguity is patent on the face of the document the court need not launch into an inquiry to ascertain which of the two possible interpretations of the document the court should accept as the correct one.;quaere. whether a firm can be lawfully..........the award is headed as between the firm of messrs. vallabhdas narandas & co. the applicants and seth keshavlal himatlal (of nemanpole, baroda), from the heading of the award it is not clear whether seth keshavlal himatlal is intended to be a firm, or an individual, bearing that name. it is admitted that the respondent has a son of the name keahavlal himatlal. it is contended, however, that the description seth (master or mr.) would apply more to a firm than an individual. the award proceeds:-sheth keshavlal himatlal sent in a written statement. however as he did not appear on april 9, i adjourned the meeting to april 14, before which i received a letter from sheth keahavlal himatlal to postpone the meeting to 24th, when he would attend. on april 24, seth chimanlal himatlal appeared on.....
Judgment:

Mirza, J.

1. This is a chamber summons adjourned into Court, taken out by the applicants against the respondent for an order that the applicants be at liberty to execute an award dated May 9, 1924, filed in this Court on June 11, 1924, against the respondent as a partner in the firm of Keshavlal Himatlal. On the argument of the summons in chambers the respondent contended that the award was against an individual and not against a firm. In the alternative he contended that if the award can be construed as being against a firm he was not a partner in the firm and therefore not liable to be proceeded against in execution of the award against the firm. On those contentions I adjourned the summons into Court and ordered the trial of the following issues, viz.,

(1). Whether the award herein is against the firm of Shet Keshavlal Himatlal and

(2). If so, whether the respondent is a partner in the said firm ?

2. The arbitration proceedings which led to the award seem to have been held under the rules and regulations of the East India Cotton Association. The award is signed by one Bhaidas Nanalal, umpire. In filing the award the umpire failed to conform to the rules of this High Court which require that the arbitrators or the umpire shall send together with the award the evidence on the references, the minutes and proceedings and also a copy of the notice given to the parties. The only document filed along with the award is a press typed copy of a notice on which the names Shet Keshavlal Himatlal, Esq. and Chunilal Himatlal Esq. and the date 5th seem to have been subsequently handwritten in blue ink. Mr. Wadia, on behalf of the applicants, asked for leave to call a clerk of the East India Cotton Association to produce the minutes of proceedings of the reference before the arbitrators and the umpire. I declined to accede to his request as no provision of the law is pointed out to me whereby arbitrations under the rules of the East India Cotton Association are to be treated differently from awards filed in this Court. In my opinion, the East India Cotton Association and their umpire have been guilty of an irregularity in filing an award without conforming to the rules of the High Court in that behalf.

3. It is clear from the copy notice filed with the award that the notice of the filing of the award was not served on the respondent. The first occasion for the respondent to impugn the award is on the present summons. He is not debarred, in my opinion, by any conduct of his from contending that the award is illegal and cannot be executed against him on the allegations made. There is no force in the applicants' contention that the respondent should have objected to the filing of the award or to have applied by a summons to have it set aside after it was filed.

4. The award is headed as between the firm of Messrs. Vallabhdas Narandas & Co. the applicants and Seth Keshavlal Himatlal (of Nemanpole, Baroda), From the heading of the award it is not clear whether Seth Keshavlal Himatlal is intended to be a firm, or an individual, bearing that name. It is admitted that the respondent has a son of the name Keahavlal Himatlal. It is contended, however, that the description Seth (master or Mr.) would apply more to a firm than an individual. The award proceeds:-

Sheth Keshavlal Himatlal sent in a written statement. However as he did not appear on April 9, I adjourned the meeting to April 14, before which I received a letter from Sheth Keahavlal Himatlal to postpone the meeting to 24th, when he would attend. On April 24, Seth Chimanlal Himatlal appeared on behalf of his brother Sheth Keahavlal and Mr. Chunilal Maneklal on behalf of the plaintiffs Messrs. Vallahhdas Narandas & Co.

On hearing both the parties, and going through their books and accounts I find that both the brothers Seth Keshavlal Himatlal and Seth Chunilal Himatlal had done business through Messrs. Vallabhdas Narandaa and Co. I find that Seth Keshavlal Himatlal owes Messrs. Vallabhdas Narandas & Co, Rs. 4820-11-0. However Messrs. Vallabhdas Narandas & Co. owe Seth Chimanlal Himatlal Rs. 697-8-9 for which Seth Chimanlal Himatlal requested Messrs. Vallabhdas Narandas & Co, to give credit to Seth Keshavlal Himatlal and to this Messrs. Vallabhdas Narandas & Co. agree. Thus now Seth Keshavlal Himatlal owe to Messrs. Vallabhdas Narandas & Co. the sum of Rs. 4122-2-3....

5. The award so far appears to be consistent with being an award against the individual of the name Shet Keshavlal Himatlal. The only part of it which throws doubt on that interpretation is the last line where the verb 'owe' is used in connection with Shet Keshavlal Himatlal, as if it were a plural term signifying a firm. As against that it is possible to contend that the verb 'owe' has crept in without an 's' owing to a clerical error, or that a confusion was created in the draftsman's mind because of the two names which had preceded the sentence. It is further possible that because a set-off was allowed at the request of the other brother the umpire believed that both brothers were partners. In this state of things no authority or precedent is cited whereby it would be permissible to the Court to send for the umpire and examine him as to the meaning of his document. The umpire, in my opinion, is a functus officio after he has published his umpirage or award, and the document must speak for itself. Where the ambiguity is patent as here on the face of the document it would not be competent to the Court to launch into an inquiry as I am here invited to do to ascertain which of the two possible interpretations of the document the Court should accept as the correct one. The rest of the document is equally ambiguous inasmuch as it uses the plural term defendants, in one place in connection with Seth Keshavlal Himatlal. Here again it is possible to contend that the confusion has arisen because of the set-off allowed by consent.

6. On the whole I am inclined to interpret the document as an umpirage or award against an individual and not against a firm.

7. If it be permissible to interpret the document as an award or umpirage against a firm a further question arises whether the proceedings before the arbitrators or umpire could be maintained in the firm name under the provisions of Order XXX of the Code of Civil Procedure.

8. The heading of the award describes Seth Keshavlal Himatlal as of Neman Pole, Baroda, The firm, therefore, is a foreign firm. Order XXX, Rule 1, permits any two or more persons trading or being liable as partners and carrying on business in British India to sue or be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action. The privilege attached to this abbreviated form is not extended by the Code of Civil Procedure to foreign firms. I do not agree with Mr Wadia's argument that what would not be permissible to do by means of an action at law would be permissible to do by means of a reference to arbitration.

9. It is doubtful, in my opinion, whether a firm apart from its being a foreign firm as is the case here can be lawfully made a party to a reference to arbitration. A firm is not an entity apart from its partners as is a corporation. A firm is an abbreviated name for the partners of which it consists. The Code of Civil Procedure, 1908, by means of Order XXX, which is a new provision in it, permits suits to be brought and defended in the names of firms. It does not follow that arbitration proceedings can be instituted by and against firms in the same manner as actions can now be in a Court of law. The Indian Arbitration Act, 1899, is prior in date to the Civil Procedure Code 1908. Section 11 of the Indian Arbitration Act contemplates that when the arbitrators or umpire have made their award, they shall sign it and shall give notice to the parties of the making and signing thereof. In my opinion, it cannot be contended that the term 'parties' used in the Indian Arbitration Act can apply to a firm apart from the partners of which the firm consists.

10. A further question arises whether an award obtained against a firm can be executed against a party who is alleged to have been a partner in the firm but who was not served either with the notice of arbitration or of the filing of the award. Section 15 of the Indian Arbitration Act provides that 'an award on a submission, on being filed in the Court in accordance with the foregoing provisions shall...be enforceable as if it were a decree of the Court.' An award is not a decree of the Court, but by virtue of the provisions contained in Section 15 of the Indian Arbitration Act is enforceable as if it were a decree of the Court. Order XXI, Rule 50, provides that 'where a decree has been passed against a firm execution may be granted...' To entitle the applicants to the benefit of Order XXI, Rule 50, they must show that a decree has been passed against a firm. I hold that here there is no decree passed against a firm, but there is an award purporting to be made against a firm. Order XXI, Rule 50, is taken from the rules of the Supreme Court Order XLVIII-A, Rule 8. The rules under Order XXX comprise the other rules of the rules of the Supreme Court under Order XLVIII-A. The provisions of Order XLVIII-A have been held to form a Code by themselves requiring that they should be read together and each rule in the light of the rest: Worcester City and County Banking Co. v. Firbank, Pauling & Co. [1894] 1 Q.B. 784 and per Lindley L.J. in MacIver v. G. & J. Burns [1895] 2 Ch. 630. Under the English law there is no provision for the execution of an award against a firm under the provisions of Order XLVIII-A, Rule 8. Mr. Wadia has called my attention to several precedents of Chamber Judges of this Court, who have accepted awards on the file against firms, and granted execution against the partners. In one instance there is a precedent by Mulla J. where the award is against a foreign firm. With great respect I am unable to follow these precedents.

11. In the view I have expressed there is no need to record evidence or give a finding on the issues which have come up for trial.

12. The result is that the summons is discharged with costs including costs reserved.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //