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DulhIn Gulab Koer Vs. Saturjit Pertap Bahadoor Sahi - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal469
AppellantDulhIn Gulab Koer
RespondentSaturjit Pertap Bahadoor Sahi
Cases ReferredUnn(sic)mman v. Chathan T. L. R.
Excerpt:
arbitration - atuard--decree in accordance with award with slight modification--appeal--illegal award--reference applied for by agent without authority--knowledge and tacit ratification by principal--civil procedure code (1882), section 522. - .....before suit, but which he agreed in writing to repay at a date which was within three years of suit. the arbitrators were of opinion that these writings were not properly stamped, and were therefore inadmissible in evidence. but they found that 'apart from the so-called receipts, there is ample evidence on the record on behalf of the plain tiff, documentary and oral, to prove that the defendant did actually, borrow money from the plaintiff in the, way stated.' and they goon to say: 'in our opinion no portion of the claim is barred by limitation.' it is clear, therefore, that no illegality in this respect is apparent upon the face of the award, such as might have been a ground for remitting the award under the provisions of section 520 of the code. and it appears to us to be still.....
Judgment:

Beverley and Ameer Ali, JJ.

1. This appeal is by the defendant in a suit which, was brought against him in the Court of the Subordinate Judge of Mozufferpur. The defendant who resides in the district of Gorakhpur, defended the suit by his am-mukhtar, one Hurdeo Narain, who appears to have verified and filed the written statement. After ponding for over a year in the Subordinate Judge's Court, the ease was, at the request of both parties, referred to arbitration, and on the 12th March 1894 the arbitrators submitted their award, holding that the plaintiff was entitled to recover the sum of Rs. 3,217 odd with proportionate costs from the defendant. On the 19th March the defendant, through the same am-mukhtar, filed an objection, in which he prayed that the award might be set aside on the ground (amongst others) that the arbitrators had allowed certain items which were barred by limitation, and when the matter came on to be argued a further objection was raised orally to the effect that Hurdeo Narain's am-mukhtarna-mah did not authorize him to consent to the arbitration. The Subordinate Judge disallowed these objections, and mado a decree in accordance with the award with one slight modification in the defendant's favour. A preliminary objection has been taken that under the provisions of Section 522 of the Code no appeal lies against this decree, except so far as it is in excess of or not in accordance with the award,' but upon the authorities, the latest cited to us being the case of Nandram Dalaram v. Nemchand Jadavchand T. L. R. 17 Bom. 357 it is clear that an appeal will lie if the award is shown to be illegal and void ah initio. Now, the defendant himself, that is to say, in his own person, appeals to this Court, and the main ground of his appeal that is pressed upon us is that his am-mukhtar, so far from being authorized to consent to a reference to arbitration, was expressly prohibited by the terms of his mukhtarnamah from so doing. The mukhtarnamah in truth does in our opinion contain such a prohibition. The attorney is authorised to do all acts in Court for his principal and to file petitions of all sorts 'save and except petitions for relinquishment or admission of claims and panchnamahs,' by which last term we understand petitions for reference to arbitration.

2. Now, there is no question that the application for the reference to arbitration was presented to the Court on behalf of the defendant by a pleader, whose vakalutnamah was signed by Hurdeo Narain. Hurdeo Narain, having no authority to make such an application him self, had of course no authority to authorise any one else to do so. The application therefore was not in accordance with the requirements of Section 506 of the Code. But a further question which we have to consider in this case is, whether the defendant was aware of the reference to arbitration and acquiesced in the proceedings before the arbitrators, and, if so, whether he can now be allowed to raise this objection when the award has been given against him. The proceedings in the case appear to us to show conclusively that the defendant was personally aware of what was being done on his behalf. It was a suit between members of the same family. The plaintiff agreed to be bound by the defendant's sworn testimony in the case, and summons was served upon him to appear personally and give his evidence. An application to allow him to give his evidence on Commission was refused. Thereupon several successive medical certificates were filed on his behalf to the effect that he was too ill to attend in person give evidence. At this stage of the case the matter was referred to arbitrate The first order of reference was made on 29th November 1893. That r*(sic) f once proved infructuous, and a second order was made on 23rd Dec(sic)perty of 1893. The award was not submitted till 12th March 1894. Before the (sic)^erJy tors, again, the plaintiff applied to have the defendant examined pe(sic)

3. The defendant, apparently from fear of having to give his evidence, left bis home for Lucknow, and the arbitrators were unable to secure his attendance. Upon these facts it is impossible to come to any other conclusion than that he was aware of the reference to arbitration and tacitly ratified the action of his am-mukhtar in applying for such reference. It was only when the award was given against him that it occurred to him to raise the present objection. The case of Unn(sic)mman v. Chathan T. L. R. 9 Mad. 451 is an authority for holding that in a case like this a person who has stood by and assented to the proceedings before the arbitrators cannot afterwards be allowed to turn round and question the legality of the order of reference. We think, therefore, that this ground fails, and that the defendant, having acquiesced in the proceedings, the award was not void at initio in consequence of the defect in the order of reference,

4. The second point urged is that the award is illegal, inasmuch as the arbitrators have allowed certain claims which, it is said, are barred by limitation. This objection refers to three sums of money which were borrowed by the defendant more than three years before suit, but which he agreed in writing to repay at a date which was within three years of suit. The arbitrators were of opinion that these writings were not properly stamped, and were therefore inadmissible in evidence. But they found that 'apart from the so-called receipts, there is ample evidence on the record on behalf of the plain tiff, documentary and oral, to prove that the defendant did actually, borrow money from the plaintiff in the, way stated.' And they goon to say: 'In our opinion no portion of the claim is barred by limitation.' It is clear, therefore, that no illegality in this respect is apparent upon the face of the award, such as might have been a ground for remitting the award under the provisions of Section 520 of the Code. And it appears to us to be still more clear that the award was not in this respect so illegal or void ab initio, that an appeal against the decree made upon it will lie.

5. For these reasons we are of opinion that the appeal fails, and must be dismissed with costs.


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