Penugonda Radhakrishnamurthy Vs. V.A.Y. Ethirajulu Chetty and Co. and ors. - Court Judgment
|Reported in||AIR1945Mad184; (1945)1MLJ54|
|Respondent||V.A.Y. Ethirajulu Chetty and Co. and ors.|
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with.
section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....of section 39 of the indian arbitration act, 1940, two applications had been filed in the city civil court for an order extending the time allowed to an umpire for the passing of his award. the umpire awarded the first respondent a sum of rs. 600; but the award was not made within the time allowed by law. the principal judge of the city civil court refused the applications on the ground that by granting them the opposite party would lose valuable rights. the first respondent then appealed to this court. kuppuswami ayyar, j., considered that the application for extension of time should have been granted, and allowed the appeal. accordingly he sent the case back to the city civil court to decide the other points raised in the proceedings.2. a preliminary objection has been taken!.....
Alfred Henry Lionel Leach, C.J.
1. This is an appeal from the judgment of Kuppuswami , Ayyar, J., setting aside an order of the Principal Judge of the Gity Civil Court under the provisions of Section 39 of the Indian Arbitration Act, 1940, Two applications had been filed in the City Civil Court for an order extending the time allowed to an umpire for the passing of his award. The umpire awarded the first respondent a sum of Rs. 600; but the award was not made within the time allowed by law. The principal Judge of the City Civil Court refused the applications on the ground that by granting them the opposite party would lose valuable rights. The first respondent then appealed to this Court. Kuppuswami Ayyar, J., considered that the application for extension of time should have been granted, and allowed the appeal. Accordingly he sent the case back to the City Civil Court to decide the other points raised in the proceedings.
2. A preliminary objection has been taken! It is contended that this appeal does not lie by reason of Sub-section (2) of Section 39 which says that no second appeal shall lie from an order passed in an appeal under the section, although nothing in the section shall affect or take away a right to appeal to His Majesty in Council This objection is sound. It is true that Clause 15 of the Betters Patent, if it stood alone, would allow the appeal; but Clause 44 of the Letters Patent says that the provisions are subject inter alia to the legislative powers of the Governor-General in Legislative Council. The Indian Arbitation Act is an Act of the Central Legislature and the provisions of Section 39 must prevail.
3. The appeal is dismissed with costs.