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Ayyasami Mudaliar Vs. Appandai Nynar - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtChennai
Decided On
Reported in(1920)38MLJ145
AppellantAyyasami Mudaliar
RespondentAppandai Nynar
Cases ReferredUnited Kingdom Mutual Steamship Assurance Association v. Houston and Co.
Excerpt:
- .....that he should be allowed to amend his plaint which as it 'stands, asks for an enforcement of an award of arbitrators, so as to allow him to bring a suit for dissolution of the partnership which subsisted between plaintiff and defendant; (2) that the award is valid even though it is only signed by five out of the seven arbitrators, appointed by the muchilika (exhibit i). as to the first point, we are unable to say that such an amendment would not alter the character of the suit and there is also this consideration, namely, that plaintiff had ample opportunity to bring this suit for dissolution in the past, he presented a petition to amend his plaint to enable himself to do this to the district munsif on 18th june 1917. the issue as to the validity of the award was raised as long before.....
Judgment:

1. In this appeal two points are argued for the appellant: (1) that he should be allowed to amend his plaint which as it 'stands, asks for an enforcement of an award of arbitrators, so as to allow him to bring a suit for dissolution of the partnership which subsisted between plaintiff and defendant; (2) that the award is valid even though it is only signed by five out of the seven arbitrators, appointed by the Muchilika (Exhibit I). As to the first point, we are unable to say that such an amendment would not alter the character of the suit and there is also this consideration, namely, that plaintiff had ample opportunity to bring this suit for dissolution in the past, He presented a petition to amend his plaint to enable himself to do this to the District Munsif on 18th June 1917. The issue as to the validity of the award was raised as long before this as 21st July 1916. The petition was rejected on 25th August 1917 and judgment was given in the suit to enforce the award on 1st November 1917. The suit for an account of the partnership dealings would not have been barred till 20th November 1917. At the hearing on 1st November 1917 plaintiff did not examine himself or any witnesses and asked for more time which was refused. It is thus apparent that plaintiff had plenty of opportunity of bringing another suit on an account and did not avail himself of it. We are therefore not disposed to allow him to do so on Second Appeal. As to the second point, an award must be signed by all the arbitrators (See Russell on Arbitration and Award, 9th Edn. Part II Chapter IV Section 3 Note 4 at page 168.) Mr. Anantakrishna Aiyar has drawn our attention to the opinion of Beaman, J., in Mahomedali Adamji v. Secretary of State for India I.L.R (1917) Bom. 668 that parties must be assumed to contract that a majority award shall bind them when an uneven number of arbitrators are appointed. But that was a case of valuers and it is not clear that it would be the same in the case of arbitrators. The learned Judge himself at page 673 quotes a ruling of Mathew, J., United Kingdom Mutual Steamship Assurance Association v. Houston and Co. (1896) I. Q.B. 567 that in every case of arbitration unless all the arbitrators concurred in the award there would be no arbitration award at all. In this state of things we cannot follow the opinion of Beaman, J., in the present case and it is clear that the award in suit is unenforceable in law.

2. The appeal therefore fails on both these points and must be dismissed with costs.


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