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Purushotama Das Pragji Sait and ors. Vs. Jeta Bhai Nagji Sait and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in17Ind.Cas.33
AppellantPurushotama Das Pragji Sait and ors.
RespondentJeta Bhai Nagji Sait and anr.
Cases Referred and Narpat Rai v. Devi Das
Excerpt:
arbitration - award of arbitrators made out of court--filing of award--absence of reference in award to a matter in dispute--duty of court to remit award--acting in excess of jurisdiction--right of arbitrators to ignore any matter--abandonment of claim. - .....and which had been managed under the possession of myself, purushotham das pragji suit no. 1.' the award is exhibit j and, according to the statement in paragraph 4, the only dispute raised by the defendant was that he had given rs. 400 to one of the plaintiffs in advance as a loan and that he was entitled to interest thereon. it will be observed that the muchilika, exhibit a, itself does not state what the disputes between the parties were. the learned counsel for the respondents does not deny the allegation of the appellant that one of the disputes before the arbitrators, in the first instance at any rate, related to the claim set up by the defendant to the share of one of the plaintiffs in the ware house in question under exhibit ii. the question was certainly a substantial and.....
Judgment:

Sundara Aiyar, J.

1. This is a petition under Section 115 of the Civil Procedure Code against the judgment of the Subordinate Court of North Malabar refusing to set aside an order passed by the District Munsif of Cannanore filing an award. The reference to arbitrators in the case was without the intervention of any Court; the arbitrators passed an award. Amongst the objections taken by the defendant to its being filed, one was that the arbitrators had not decided all the questions in dispute between the parties. Before proceeding further, it would be desirable to refer to the muchilika or karar by which the reference was made to the arbitrators. It states: 'You are empowered by us and with our consent to settle by arbitration all the disputes going on between Nos. 1, 2 and 3 herein regarding the ware-house No. 776 in Ward D of Cannanore town, the buildings included therein and the rent thereof which form the joint acquisition of myself, Purushothama Das Pragji Suit No. 1, and of Megji Anji Suit, the deceased father of Nos. 2 and 3, and which had been managed under the possession of myself, Purushotham Das Pragji Suit No. 1.' The award is Exhibit J and, according to the statement in paragraph 4, the only dispute raised by the defendant was that he had given Rs. 400 to one of the plaintiffs in advance as a loan and that he was entitled to interest thereon. It will be observed that the muchilika, Exhibit A, itself does not state what the disputes between the parties were. The learned Counsel for the respondents does not deny the allegation of the appellant that one of the disputes before the arbitrators, in the first instance at any rate, related to the claim set up by the defendant to the share of one of the plaintiffs in the ware house in question under Exhibit II. The question was certainly a substantial and important one. There is no reference to it in the award of the arbitrators. The District Munsif was apparently of opinion that the claim under Exhibit II was given up before the arbitrators. If that was the fact, then I think the award would not be vitiated by the fact of no express reference being made in it to that claim. I cannot go so far as to hold, as the learned Advocate-General has asked us to do, that it must appear in the award itself that the claim was abandoned. I think the abandonment may be proved by the evidence of the arbitrators. But the Subordinate Judge, on appeal, does not, as far as I can see, find that the defendant abandoned his right under Exhibit II. He says: 'Exhibit II was a teer-deed by 1st plaintiff of his interest in the plaint shop. It would appear that it was a colourable creation intended to defeat 1st plaintiff's creditors.... The arbitrators were, therefore, justified in dealing with these documents in the manner they have done.' The arbitrators have not dealt with these documents at all in their award. The Subordinate Judge evidently meant to say that they were justified in not dealing with them when he observed that they were justified in dealing with them in the manner they have done. The reason for justification given by the Subordinate Judge is that it appeared to him that Exhibit II was a colourable transaction intended to defeat the 1st plaintiff's creditors. His judgment then amounts to this: that because he himself was of opinion that Exhibit II evidenced a fraudulent transaction, the arbitrators were right in not dealing with it. It is hardly necessary to say that such a proposition cannot be sustained. The arbitrators were bound to decide any matter in dispute between the parties and their failure to do so cannot be condoned because the Court on the merits would not sustain the contention which the arbitrators did not deal with. The learned Counsel for the respondents says that in reality the Subordinate Judge intended to agree with the Munsif. Possibly he did; but I cannot find any support for that view in the Subordinate Judge's judgment. The District Munsif, in paragraph 28 of his judgment, observes with reference to Exhibit II that one of the arbitrators deposed that defendant had told him that his right under Exhibit II had ceased. This, indeed, is not the same as saying that Exhibit II was executed to defraud creditors. The other arbitrator deposed that the defendant told him that he had caused the teer-deed to be executed simply to defraud the creditors of the plaintiff's father. Having referred to the deposition of these two witnesses, the Munsif says: 'The arbitrators, therefore, did not consider the teer-deed.' He does not say that the defendant abandoned his right under Exhibit II. in paragraph 32, however, the Munsif observed: 'I find that the defendant's interests, if any, under Exhibits II and VI had ceased long ago and that he represented so to the arbitrators and that they were justified in not having considered Exhibits II and VI even if Exhibit VI had been shown to them.' It is not clear to my mind whether the Munsif meant to say that the claim under Exhibit II was abandoned, or whether he intended to say that on account of the strong admissions contained in the statements before the arbitrators made by the defendant, they were justified in not considering Exhibit If. Probably he meant the latter. The arbitrators themselves do not seem to have stated in their depositions that the claim was abandoned. Apparently, they meant to justify themselves in making no reference to the defendant's claim under Exhibit II as the statements he made were against the sustainability of any such claim. However that may be, I cannot hold that the Subordinate Judge has found that the defendant's claim under Exhibit II was abandoned. Without such a finding, he could not hold that the arbitrators were right in not dealing with the claim. The law expressly requires that an award should be remitted if arbitrators fail to decide any of the matters submitted to them. The Subordinate Judge apparently agrees that one of the matters in dispute was not decided by the arbitrators. He had no power to confirm the Munsif's order filing the award without finding that the claim under Exhibit II was abandoned. In passing the order of confirmation without doing so, he must, in my opinion, be deemed to have acted with material irregularity and to have failed to exercise the jurisdiction vested in him to direct the award to be remitted, by entertaining a wrong impression that the failure by the arbitrators to decide a point submitted to them might be overlooked if the party urging the paint had no substantial merits. It may also be said that he exercised a jurisdiction not vested in him in confirming the Munsif's order without finding that the claim under Exhibit II had been withdrawn. I would, therefore, ask the Subordinate Court to submit a finding on the question whether the defendant withdrew or abandoned his claim under Exhibit II. Mr. Richmond has contended that the appeal to the Subordinate Judge was incompetent as it was against the decree passed on the award. According to the provisions of the Civil Procedure Code, no appeal would lie against the decree in such a case except in so far as it might be in excess of, or not in accordance with, the award. At the same time, Section 104 provides an appeal against an order filing an award. The Munsif's order directing the award to be filed was passed on the 23rd December 1906. The decree also was on the same date. No objection was taken before the Subordinate Judge with respect to the maintainability of the appeal. I think the appellant's contention may be upheld that the appeal was in reality against the order directing the award to be filed, especially as no objection was taken to it in the lower Appellate Court. The order passed on appeal was not itself appealable and the defendant adopted the proper course in filing a civil revision petition in this Court.

Sadasiva Aiyar, J.

2. I am of opinion that this petition under Section 115 ought to be rejected. The parties went to arbitration and executed a muchilika. Exhibit A, to the arbitrators and they referred all their disputes regarding a ware-house and the buildings appurtenant to the ware-house and the rent collected from the ware-house to the decision of the arbitrators. The award does deal with the ware-house and, with the buildings and with the rents which were the matters referred to arbitration and it decides that the defendant should pay the plaintiffs certain compensation for their half share of the properties in dispute within a certain period and, in default, that the plaintiffs should pay to the defendant compensation for his half share and take the whole of the properties themselves. I do not see that this award has left any dispute between the parties as regards their rights undecided. No doubt, the defendant produced before the arbitrators the two documents, Exhibits II and VI. As regards Exhibit VI, I understood that the learned Advocate-General did not press any contention in reference to it. As regards Exhibit II, the arbitrators, notwithstanding its production, held that the defendant is entitled only to a half share in the disputed properties. They were not bound to state why they came to such conclusion. It has been held in Nanjappa v. Nanjappa Rao 23 M.L.J. 290 : (1912) 1 M.W.N. 1091 that an award need not be a reasoned judicial decision, and that arbitrators need not even give their reasons for their conclusions and they are not even bound to record anything of the proceedings [see Ramdhari Sahu Ram Charitar Sahu 33 C.d 143. They need not have mentioned in their award the reasons why they ignored Exhibit II. One of the arbitrators says that he ignored it because the defendant did not put forward any claim before the arbitrators and, in fact, said that he had given up all claims under it. The other arbitrator says that he believed it to be a colourable document and, therefore, that it did not give any rights to the defendant as claimable under it. I think, under these circumstances, there is nothing illegal in the award and I am unable to say that the arbitrators failed to decide any of the matters referred to them for arbitration. The Munsif also finds that Exhibit II was a nominal document and that the defendant did not pat forward before the arbitrators any right under it at the hearing before them sea Ramjee Ram v. Saligram 14 C.L.J. 188 : 11 Ind. Cas. 481 as to the arbitrators not being bound to decide a point if the parties showed by their conduct that they did not want a formal decision on it]. The Subordinate Judge refers to paragraphs 27 to 34 of the Munsif's judgment and he evidently means to adopt the reasoning therein without any reservation. He also seems to say that the arbitrators did consider the document. Exhibit II, and have dealt with it in some way, that is, they came to the conclusion that the defendant did or could claim no rights under it. At least, that is how I understand the Subordinate Judge's judgment. I do not find that the Subordinate Judge or the Munsif has exercised a jurisdiction not vested in either of them by law or failed to exercise a jurisdiction vested in them or that they acted perversely in ignoring or refusing to follow any provision of law and I cannot find any material irregularity in either of the judgments. I must also point out that the Munsif's order filing the award became final because no appeal was filed against that order and, so far as the decree was passed by him in accordance with, and not in excess of, the award, no appeal at all lay against that decree even to the Subordinate Judge, The Subordinate Judge, to whom the appeal was made against the Munsif's decree, was, therefore, right in dismissing it as the decree was not in excess of the award. The present revision petition is against the Sub-Judge's decree dismissing the appeal preferred to him and, as I said just now, the Sub-Judge's said decree is perfectly right on the short ground that the Munsif's decree which was not in excess of the award, could not be interfered with in appeal [see Civil Procedure Code, second Schedule, Clause 16(2)]. Under these circumstances, I would dismiss this civil revision petition with costs. See Ram Saran Das v. Mohammad Nawaz Khan 14 P.L.R. 1911 and Narpat Rai v. Devi Das 14 Ind. Cas. 375 : 16 P.W.R. 1912 which show that neither appeal nor revision petition lies in such cases].

Order

3. The result is that the petition is dismissed with costs.


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