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Prosunno Nath Chowdhri and ors. Vs. Ichamoyee Chowdhranee and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal557
AppellantProsunno Nath Chowdhri and ors.
Respondentichamoyee Chowdhranee and ors.
Cases ReferredSree Ram Chowdhry v. Deno Bundhoo Chowdhry I.L.R.
Excerpt:
arbitration - award--application to have an-award filed in court--private arbitration--civil procedure code (act x of 1877), sections 525 and 526. - .....any such consent to the arbitration, which commenced after her husband's death, as to make the award binding on her. the subordinate judge, after taking evidence, held that she had consented, and that the award was binding on her, and then after disposing of many other objections to the proceedings of the arbitrators he passed an order that the award should be filed under the provisions of section 526. the agreement related to many matters which were to be the subject of arbitration, and included the taking of accounts and determination thereon whether any balance remained due from one party to the other. though the agreement was executed nearly a year prior to the death of her husband, no action appears to have been taken by the arbitrators till about nine months after his death......
Judgment:

Wilson, J.

1. This was a rule granted under Section 622 of the Procedure Code, to show cause why an order of the Subordinate Judge of Pubna, directing an award to be filed, should not be set aside. The rule was granted upon two grounds, the first and most important of which is, in my opinion, sufficient to dispose of the case, viz., 'that considering the cause shown against the award the order ought not to have been made.'

2. The question turns upon the construction of Sections 525 and 526 of the Procedure Code, Section 525 says: 'When any matter has been referred to arbitration without the intervention of a Court of Justice, and an award has been made thereon, any person interested in the award may apply to the Court of the lowest grade having jurisdiction over the matter to which the award relates, that the award be filed in Court. The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants. The Court shall direct notice to be given to the parties to the arbitration, other than the applicant, requiring them to show cause within a time specified, why the award should not be filed.'

3. Section 529 says: 'If no ground, such as is mentioned or referred to in Section 520 or 521, be shown against the award, the Court shall order it to be filed, and such award shall then take effect as an award made under the provisions of this chapter.'

4. In the present case differences having arisen between two brothers Ananda Nath Chowdhree and Sham Soonder Chowdhree, they entered into an agreement of reference by which they submitted thirteen specified matters to arbitration. This was on the 25th September 1877.

5. On the 3rd of October 1878, Sham Soonder died, leaving the present applicant his widow and executrix, and five infant sons, and she obtained probate of the will.

6. After Sham Soonder's death the arbitrators proceeded with the reference; and on the 30th of May 1880 they made their award. Ananda Nath applied to the Subordinate Judge to file the award under Section 525 and then died. His widow, as next friend of his minor sons, and his major son were substituted for him in the proceedings.

7. The present applicant presented a written statement in which she contended that the award was bad on the ground that the agreement of submission did not bind the representatives of Sham Soonder; and also on grounds that, if true, showed that the award had left undecided certain of the matters referred, and had dealt with matters not referred, and was bad on the face of it, objections within the scope of Section 520. The Subordinate Judge overruled all the objections, and ordered the award to be filed. We have to say whether that order should be set aside or not.

8. If the words in Section 526, 'no ground, such as is mentioned or referred to in Section 520 or 521, be shown against the award,' mean, 'be established to the satisfaction of the Court,' then so far as such objections are concerned, we cannot say that the Subordinate Judge was wrong in filing the award; but I think the terms of the section are complied with, and grounds are shown, when it is shown by written statement or affidavit or other verified statement, that the award is impugned as invalid for any of the reasons contained in Sections 520 and 521, and that the Court is then bound to hold its hand, and leave the parties to their remedy by suit. This appears to me the more natural construction of the section, and. it is certainly the one most in accordance with justice and convenience. I am not at all inclined to strain the language of the Statute when the effect would be to deprive the parties of their ordinary right to have their controversies (other than those which they have agreed to refer) tried by suit with a right, of appeal, and compel them to submit to a summary decision without appeal.

9. This question has not, so far as I am aware, been actually decided; but it has on several occasions been considered by Division Benches of this Court, and the opinions expressed have been in accordance with the views I have expressed. In Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B. L R. 315 Norman, J. at page 324 Loch, J. at page 328 and Paul, J. at page 332 clearly express this view. In the recent case of Sree Ram Chowdhry v. Deno Bundhoo Chowdhry I.L.R. 7 Cal. 490 Pontifex, J. at p. 492 distinctly states the law in the same way.

10. It was pointed out in argument before us that this conclusion might introduce a different rule in the case of awards made wholly out of Court from that which must apply in the case of arbitration arising out of suits or in which the submission has been filed. It may be so; but the language used, in dealing with the two cases is entirely different.

11. There is an additional objection to the present order, because the applicant, when before the Subordinate Judge, denied altogether that the submission was binding upon her, and Section 525 seems to me to have no application to a case in which the submission or its binding effect is in dispute.

12. The order of the Subordinate Judge will therefore be set aside.

Macpherson, J.

13. I concur in holding that the order of the Subordinate Judge should be set aside. One of the material contentions before the Subordinate Judge was that the award was not binding on Ichamoyee, the applicant before us, as she was no party to the agreement of submission to arbitration executed by her husband as one of the contracting parties, and there was nothing in the agreement to bind his representatives. Further, it was contended that she had never given any such consent to the arbitration, which commenced after her husband's death, as to make the award binding on her. The Subordinate Judge, after taking evidence, held that she had consented, and that the award was binding on her, and then after disposing of many other objections to the proceedings of the arbitrators he passed an order that the award should be filed under the provisions of Section 526. The agreement related to many matters which were to be the subject of arbitration, and included the taking of accounts and determination thereon whether any balance remained due from one party to the other. Though the agreement was executed nearly a year prior to the death of her husband, no action appears to have been taken by the arbitrators till about nine months after his death. Whether there were or were not sufficient grounds to justify the Subordinate Judge in holding that the agreement was binding on her by consent or otherwise, is a matter which we need not consider, as I think he had no power to determine the question, and in doing so exceeded the jurisdiction which he could exercise under Sections 525 and 526. The power of a Court acting under these sections seems to be very limited.

14. They neither contemplate nor authorize a decision on disputed matters outside the award itself and the action of the arbitration as bearing on it. The construction put by this Court on the corresponding section of Act VIII of 1859, was in effect that if the Court decided disputed questions bearing on the authority of arbitrators to make an award, the decision was one from which an appeal would lie. In other words, the Court had decided a question which it was not intended it should decide finally. Act X of 1877 took away the right of appeal, and Section 526 indicated more clearly than the corresponding section of Act VIII of 1859, the grounds which might possibly be the subject of inquiry, and narrowed rather than extended the power of the Court. On this ground I would set aside the order of the Subordinate Judge. I also concur in holding that when a Court, in dealing with an application under Section 525, finds there is a bona fide and a reasonable dispute on any of the grounds mentioned in Sections 520, 521, it ought to hold its hand, and would be justified by the words of the section in doing so; but I hesitate to say that when such grounds of objections are set forth in a verified petition of affidavit, the Court is to make no inquiry, or that if it does decide on evidence that no grounds exist, the decision is one with which we could interfere under Section 622.


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