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Juggilal Kamlapat Vs. General Fibre Dealers Ltd. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 147 of 1953
Judge
Reported inAIR1955Cal354,59CWN146
ActsArbitration Act, 1940 - Section 30
AppellantJuggilal Kamlapat
RespondentGeneral Fibre Dealers Ltd.
Appellant AdvocateG.P. Kar, Adv.
Respondent AdvocateA.K. Sen and ;P.R. Das, Advs.
DispositionAppeal dismissed
Cases ReferredBhowanidas Ramgobind v. Harsukhdas Balkishendas
Excerpt:
- chakravartti, c.j.1. i have not found it altogether easy to decide this appeal, but the weight of authority compels me to take the view which i am taking, i would add that having had an opportunity to consider the 'matter more fully since we reserved judgment the day before yesterday, i cannot say that, after all, good sense may not be on the side of that view.2. the appeal is against an order of s.r. das gupta, j., dated 25-5-1953, by which the learned judge set aside an award in favour of the appellants on the ground that the arbitrators had mis-conducted themselves in proceeding against the respondents ex parte and in refusing to give them a proper opportunity for presenting their case. such being the scope of the appeal, the dispute which was referred to arbitration is not of much.....
Judgment:

Chakravartti, C.J.

1. I have not found it altogether easy to decide this appeal, but the weight of authority compels me to take the view which I am taking, I would add that having had an opportunity to consider the 'matter more fully since we reserved judgment the day before yesterday, I cannot say that, after all, good sense may not be on the side of that view.

2. The appeal is against an order of S.R. Das Gupta, J., dated 25-5-1953, by which the learned Judge set aside an award in favour of the appellants on the ground that the arbitrators had mis-conducted themselves in proceeding against the respondents ex parte and in refusing to give them a proper opportunity for presenting their case. Such being the scope of the appeal, the dispute which was referred to arbitration is not of much consequence, Nevertheless, the facts may be stated in outline.

3. It appears that on 29-8-1951, the appellants Messrs. Juggilal Kamlapat, agreed to sell and the respondents, the General Fibre Dealers Limited, agreed to buy 1,50,000 bags of Com Sacks at the rate of Rs. 220/- per 100 bags. We are informed that 1,50,000 bags would make five hundred bales. Delivery of the goods was to be given within September, 1951, by placing the goods alongside the vessel which the respondent might name. On 18-9-1951, the respondents started giving shipping, instructions for placing ' the goods alongside S.S. Begum.

The' appellants' case is that they were unable to place the goods alongside the vessel forthwith, inasmuch as the vessel was late in arriving at the Port and inasmuch as the lock-gate at the Kidder-pore Dock was completely closed for a considerable time for the purpose of repairs. However, on 29-9-1951, fifty bales were delivered. On the 1st of October, however, the respondents addressed a letter to the appellants in which they said that they had made a repurchase of 450 bales at the rate of Rs. 325/- per 100 bags and that they would send their difference bill in due course.

One would think that the respondents were treating the contract as at an end, but it appears that when on 6-10-1951 the appellants placed a further instalment of 100 bales alongside the ship, the goods were accepted. Another 50 bales were delivered on the 8th of October following, and those goods also were' accepted by the respondents. Thereafter, on 13-10-1951, the respondents addressed another letter to the appellants in which they said that the appellants had been in default with respect to 300 bales and that they would send their difference bill in respect of that quantity of the goods in due course. Sometime thereafter, theyappear to have sent a bill for Rs. 94,500/- which was apparently computed by taking Rs. 105/- as the rate of the difference. The appellants did not accept the bill and returned it to the respondents along with a letter in which they said that they were not liable to pay anything.

4. In the last week of October, on some date which was not given to us, the respondents referred the dispute to the arbitration of the Bengal Chamber of Commerce in accordance with an arbitration clause contained in the contract. On 21-11-1951, the Registrar informed the parties that he had constituted a Court of Arbitration, That Court apparently was unable to enter upon the reference or to complete the work . within the time limited by law and, accordingly, on 24-3-1952, the Registrar informed the parties that he had constituted a second Court to adjudicate on the dispute. Thereafter, on the 3rd April, the Registrar issued a notice to the respondents, informing them that a sitting of the Court would be held on 9-4-1952, and requiring them to produce their evidence at the hearing: The letter or notice concluded by saying that it the respondents failed to appear at the time and the date mentioned, the Court would hear and take into consideration whatever evidence was adduced by the opposite party that is to say, the appellants.

Then followed another letter from the Registrar, dated 5-4-1952, by which he informed the parties that instead of the 9th April, the arbitration would be held on 15-4-1952, to which date it had been postponed. That letter or notice referred to the earlier letter of the 3rd April and ended by saying that the parties were required to be present on the fresh date of hearing 'in accordance with paragraphs 2, 3 and 4' of the earlier letter.

5. As to what happened on 15-4-1952, before the arbitrators, there is no direct evidence. An account of it is to be found in the judgment of S.R. Das Gupta, J., who apparently referred to the minutes of the arbitrators. According to that account no one on behalf of the respondents was present at the time the sitting commenced and after the appellants had been heard, the proceedings were' declared to be closed.

Thereafter, a representative of the respondents appeared before the arbitrators at 11-55 a.m. and apologised for being late. The reason given by him for being late was that he had been away at Kashmir and had returned just then. He asked for a further hearing, but the arbitrators informed him that the proceedings had been closed and that the ether party had been informed accordingly and that in those circumstances, they were not prepared to reopen the proceedings. The representative appears thereafter to have left the arbitrators and in the course of the day caused two letters to be addressed to them. Both were letters written on behalf of the respondents and both were signed by someone who described himself as 'B.M. Singhi',

In the first letter, regret was expressed for the failure of the representative to Attend the hearing exactly in time and it was added that the reason for the failure was that the representative had been 'out of the station' and had arrived in Calcutta that very day at 11 a.m. Even so, the letter proceeded to state, he had been late only by about 15 minutes and had been refused a hearing onlybecause the other party was absent. The letter ended, by praying that another opportunity might be given to the respondents for adducing their oral evidence and producing their books and papers.

The second letter was in the nature of a forwarding letter by which a number of papers were submitted to the arbitrators with an explanatory note as to their import and significance. The arbitrators did not take any notice of either letter and proceeded to make and publish their award on 17-4-1952, without giving any further opportunity to the respondents to present their case. By their award the arbitrators held that the respondents were not entitled to claim any repurchase difference from the appellants and accordingly they disallowed their claim.

6. Thereafter, on 23-3-1953, the respondents made an application to this Court for setting aside the award on a variety of grounds. The only ground which is . relevant for the purpose of the present appeal was contained in paragraph 15 (d) of the petition. There it was said that the' arbitrators should have allowed the respondents another opportunity for adducing oral and documentary evidence in support of their case and that in not doing so, they had acted capriciously, arbitrarily and without regard to the principles of justice, equity and good conscience. S.R. Das Gupta, J., who heard the application, accepted the contention of the respondents and set aside the award.

His Lordship held that in view of the facts and circumstances of the case, the arbitrators could not be said to have displayed that attitude of fairness which was expected of every person occupying a judicial or a quasi-judicial position. The learned Judge pointed out that the, respondents had not been absent altogether, but their representative had only appeared a few minutes later than the appointed hour. The arbitrators had not yet made their award and in fact they did not make it till the 17th April following. In the view of the learned Judge, denial of a further opportunity to present their case amounted to a denial of justice to the respondents and constituted legal misconduct. It is against that order that the present appeal has been preferred.

7. On the facts which I have briefly outlined above, Mr. G.P. Kar, appearing for the appellants, addressed to us an argument on the familiar lines which a defendant before a Court of law would adopt in supporting a decree of dismissal passed ex parte in default of appearance on the part of the plaintiff. He pointed out that the arbitrators had given ten clear days notice to the respondents. With that notice given and received, the respondents had no valid excuse for sending their representative away to Kashmir, if he could not return by the date of hearing and the representative had no justification for taking the risk of postponing, his return till the last date. Besides, no attempt had even been made to explain why it had become imperatively necessary for the representative to proceed to Kashmir and if he went there at all, what prevented him from returning a day earlier or prevented him from appearing at the appointed hour on the date of hearing. It had not been alleged that any accident had happened or the train or the plane had been delayed.

Indeed, even in the application made to this Court, even the name of the representative had not been given and the affidavit in support of the application had not been sworn by him. No facts even had been stated in the application and all that had been said was that the representative of the respondents, Who was the only person conversant with the facts of the case,, had failed to appear before the arbitrators in due time on the date of hearing for the reasons correcdy and truly given in the letter of 15-4-1952, addressed to the Registrar of the Tribunal of Arbitration. The affidavit in connection with the application made to this Court had been affirmed by one Raghunath Prasad Khaitan who had stated that the statements contained in all the paragraphs of the petition were true to his knowledge.

Mr. Kar contended that if Raghunath Prasad Khaitan also knew all the facts and circumstances of the case, there was no reason why the respondents should have depended entirely on that representative of an undisclosed name who had gone away to Kashmir and why Raghunath Prasad Khaitan could not have been sent to attend to the arbitration. It was also pointed out by Mr. Kar that, even before this Court, the representative had not affirmed any affidavit, either in support of the application or by way of an an affidavit-in-reply.

8. I am bound to say that the arguments advanced by Mr. Kar were arguments of considerable force. It appears to me that ii this had been a suit before a Court of law and it the suit had been dismissed for default of the plaintiff and its restoration refused, in the circumstances I have stated, the respondents, as plaintiffs, would have very little chance of success indeed, if they appealed against either the order passing the ex parte decree or the order refusing a restoration of the suit. It was, however, contended by Mr. A.K. Sen, who appeared on behalf of the respondents, that the principles applicable to arbitration proceedings were materially different from those applicable to suits before Courts of law. In support of. that contention Mr. Sen relied on four cases, in two of which the award was set aside and in two of which it was not.

9. The root authority for the doctrine which appears to have developed in connection with this matter is the case of -- 'Gladwin v. Chilcote', (1841) 9 Dowl. 550 (A), which is inevitably cited in cases of this class and which was the first case Mr. Sen cited. There, three different dates were successively fixed for the holding of the arbitration proceeding. On the first date, the defendant was not present and subsequently he gave a reason for his absence which was suspicious in the extreme, if not demonstrably false. The arbitrator did not proceed with the reference at the first meeting ex parte, although the defendant was absent and he issued a peremptory notice for a hearing on a subsequent date. In response to' that notice, the defendant addressed a letter to the arbitrator in which he said that he would be unable to attend on the date fixed, inasmuch as the notice was too short and inasmuch as he objected to the matter proceeding during the long vacation.

The arbitrator did not proceed ex parte even on the second day and on receipt of the defendant's letter, he fixed a third date, but the notice heissued in respect of that date was not a peremptorynotice and did not state that the arbitrator would proceed ex parte, if the defendant did not attend. The defendant did not in fact attend and an award was in due course made in his absence. It was held by Cole ridge J., that although there might be cases where an arbitrator could rightly proceed ex parte and there might also be cases where it would be his duty to do so, still, it had to be a very strong case to warrant his so proceeding. 'Now, I really think,' observed the learned Judge, 'that it is so substantial an inconvenience, and so muck prevents the doing justice between the parties, that a reference should proceed ex parte in the absence of one of the parties, that it must be a very strong. case to justify an arbitrator so proceeding,' The learned Judge held that a sufficiently strong case had not been made out by the affidavits in the case and accordingly he proceeded to make the rule absolute.

10. The next case cited by Mr. Sen was' an old decision of this Court in the case of -- 'Sm. Tool-simony Dassee v. Sm. Sudevi Dassee', 3 Cal WN 361 (B). The Bench which heard the case was a Bench of three Judges Maclean C. J., and Prinsep' and Ameer Ah JJ. The facts were that the arbitrators held their first meeting on a Sunday without giving any notice of the meeting to the defendants, and then they adjourned the hearing until the next day at 6 p. m. The defendants protested through their attorney and intimated to the arbitrators that they wished to move the Court against the procedure they were adopting, but no notice whatever was taken of this protest and the arbitrators proceeded with the arbitration on the nest day, again in the absence of the defendants. On the next date thereafter the attorney for the defendants received a notice that the arbitrators would hold a meeting on the following day at 8 a. m and a meeting was held at the date and hour notified in the absence of the defendants and an award was made against them.

On those facts, the Court held that the holding of the arbitration proceedings on the first day with-out any notice to the defendants was itself sufficient to invalidate the award and that, throughout, the arbitrators had rushed the hearing of the case without paying any attention to the protests of the defendants. Referring to the meeting of the first day, the learned Chief Justice' observed that is-holding that meeting, the arbitrators did not appear to him to have acted 'with that absolute impartiality, with that sense of fairness to both sides', which was 'so essential and so preliminary an element' in cases of that class. The necessity of giving a notice of an intention to proceed ex parte in the event of the non-appearance of a party was not specifically referred to in the judgment, but the learned Chief Justice said that it was a strong, thing for the arbitrators to proceed alter the letter of the defendants' attorney without giving any further intimation that they intended to proceed. The conduct of the arbitrators, it was' held, amounted to misconduct.

11. The two other cases cited by Mr. Sen were, as I have already said, cases where the award was not set aside. The first case is that of -- 'Udai-chand Panna Lall v. Debibux Jewanram', AIR 1920 Cal 853 (C). There, the arbitration clause pre-vided that in the event of a dispute between the parties, it was to be finally settled by two European arbitrators appointed by the buyers and sellers respectively or by an umpire in case of a difference. One of the parties appointed an arbitrator and requested the other party to nominate another arbitrator of his own choice. That other' party did hot make any nomination, with the result that the arbitrator nominated by his opponent proceeded to deal with the matter in controversy,

He gave notice that he would hold the arbitration on a certain date and requested written statements to be sent in before that date, and the parties to be present with their witnesses and documents on the date of hearing. The party who had not nominated an arbitrator sent his written statement only on the date preceding the date fixed for the holding of the arbitration and then, on the date fixed, there was no appearance on his behalf. The arbitrator thereupon made an ex parte award in favour of the other party.

When the award came to be assailed on the ground that it had been made ex parte without an express notice to the effect that in the absence of appearance on the part of either party, the arbitrator would proceed in his absence, it was held by this Court that the rule of giving a notice of the kind contended for was only a rule of prudence and convenience. Their Lordships held further that it was , not the law that if an arbitrator preceeded ex parte without giving notice of his intention to proceed in that manner, the award made by him must be set aside in an cases. The true test, they added, was, had the complainant, who was taking exception to the validity of the award, been in fact prejudiced by the omission of the arbitrator to 'serve a special notice on him? If it appeared from the circumstances that, notwithstanding a notice, he would not have appeared before the arbitrator in any event, it could not possibly be said that he had suffered any prejudice by reason' of the absence of a notice and, in such a case, the award would not be set aside for the defect in procedure.

On the facts of the case, their Lordships pointed out that the appellant before them had disputed the competence of the arbitrator on the allegation that he was not a European at all but an Asiatic and they held that since he had repudiated the arbitrator in that fashion, it was clear that notice or no notice, he would not have appeared - before him. Accordingly, it was held that the appellant had not been prejudiced by the omission of the arbitrator to notify that the proceedings would be held ex parte against any party who might fail to attend and the award was upheld.

12. More or less of the same nature was the case of -- 'Bhowanidas Ramgobind v. Harsukhdas Balkishendas : AIR1924Cal524 , decided by Mookerjee and Rankin JJ. There also, no notice ' was given by the arbitrators that they would proceed ex parte against any party who would not appear and an award was made against certain parties, who were the sellers, in their absence. The principles laid down in the earlier case of AIR 1920 Cal 853 (C), were reiterated in the judgment. As to the facts, it was pointed out that on a certain date the sellers had intimated that they would not submit to the jurisdiction of the tribunal of, arbi-trators as in their view, that tribunal could not possibly have any jurisdiction over the subject-matter of the dispute. They had not also taken any part in the arbitration proceedings at any stage. In those circumstances, the Court held that the sellers could not be said to have been prejudiced by the course taken by the arbitrators and, therefore, the award, although made ex parte against them, was not liable to be set aside.

13. In addition to the four reported cases - to which I have referred above, Mr. Sen also cited an unreported decision of Gentle J., and Ormond J., in A. F. O. O. Nos. 70 and 73 of 1945, D/-5-3-1946 (Cal) (E). .The decision was not available at the time of the argument, but it has since been placed before us by the officers of the Court. It does not seem to take the law further and since the appellants had no opportunity of 'seeing this decision and making their submissions on it. I do not propose to make any reference to the observations made by die learned Judges.

14. The question as to the right of an arbitrator to proceed ex parte and the effect of his doing so when he does not issue a notice that he would proceed in the absence of any party who would fail to attend on the date of hearing has been discussed in 'Russell on Arbitration'. In the fifteenth edition of the book, the discussion is to be found at pages 144 and 145.

It appears from the four, decisions to which I have already referred and the statement of the law in Russell that the procedural rule applicable to arbitration proceedings is more tolerant than the rule followed in Courts of law. Broadly stated, the principles which govern the matter are the following. If a party to an arbitration agreement fails to appear at one of the sittings, the arbitrator can-. not or, at least, ought not to, proceed ex parte against him at, that sitting. Where in such a case it does not appear that the non-appearance was anything but accidental or casual, the arbitrator ought ordinarily to proceed in the ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting party.

If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at a specified time and place to proceed with the reference and that . if the party concerned does not attend, he will proceed in his absence. But if after making such a peremptory appointment and issuing such a notice, the arbitrator does not in fact proceed ex parte on the day fixed, but fixes another subsequent date, he cannot proceed ex parte on such, subsequent date unless he issues a similar notice in respect of that date as well.

If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside, in spite of a notice of a peremptory hearing having been given in respect of the earling date, subject, however, to the condition that prejudice was caused to the party against who is ex parte order was made. But this duty to givenotice of an intention to proceed ex parte is not'an absolute duty.

If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when he has openly repudiated either the reference itself or the particular arbitrators and has shown nodesire to recant, the arbitrators are not required 'issue a notice of an intention to proceed ex parte against such a recusant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a case is to issue a notice and give the party concerned a chance to change his mind.

15. The above is what the arbitrators are required on their own part to do. Where the question arises after an ex parte award has, in fact, been made and it appears that no notice of an intention to proceed ex parte had been given, the principle to be applied is that the award will not be upheld, unless it is shown or it appears that the omission to give a notice has not caused any prejudice to the party against whom the ex parte award- was made, because he had made it abundantly clear that he would not appear before the arbitrators in any circumstances. When there has been an omission to give a notice, there will, however, always be a presumption that prejudice has been caused. But the presumption can be rebutted by the other party or can be seen to be rebutted by circumstances appearing on the face of the record. The principle to be borne in mind in such cases is that the failure to attend is not required to be explained on satisfactory grounds in order to dislodge the ex parte award, but the ex parte , award requires to be defended by establishing that the omission to issue a notice of an intention to proceed ex parte has not caused any prejudice.

16. If these standards be applied to the facts of the present case, what is the position one comes across? There arc strong circumstances appearing against the respondents to which I have alreadyreferred. In fairness to them, it must be pointed out that there was really no default in the true and absolute sense of the term. This is not a case where a party did not attend at the hearing at all and sought to impugn the award after it had been made ex parte. This was a case where a party actually did appear at the date of hearing though he appeared after the evidence had been closed, but he still appeared before the award had been made. It was at such a stage that the respondents notified their appearance and asked for an opportunity to be heard and to adduce the evidence they wished to adduce.

The situation is analogous to a case where, in this Court, we might hear one of the parties to an appeal in the absence of the other and reserve judgment, but on that very day -and necessarily before the delivery of the judgment, the party previously absent appeared and apologised for his absence and prayed for an opportunity to be 'heard. A position like that, to my mind, is very different from a position where a party absents himself altogether from the tribunal before which his case is pending and without any further approach to that tribunal, proceeds to another to attack the decision on the ground that it had been made inhis absence. It may also be pointed out thatthe respondents were the claimants in the case before the arbitrators and it is at least difficult to think of any. interest which they could have in absenting themselves deliberately from the sittings of the arbitrators. The arbitrators did not find so.

17. The matter must, however, be decided by one or both of two tests, the presence or absence of a notice and the presence or absence of prejudice, if there was none. Was there a notice in this case, informing the respondents of the intention of the arbitrators to proceed ex parte on 15-4-1952, if the respondents failed to appear? If there was, no other question would arise. Mr. Kar contended that there had been a clear notice to that effect and he referred to the second sentence in the letter or notice issued by the arbitrators on 5-4-1952. As that sentence refers back to the earlier letter of the 3-4-1952, it would be convenient to quote the passages in the two letters on which Mr. Kar's argument turned.

18. The last paragraph in the letter of 3-4-1952,read thus:

'Please further note that should you fail to appear before them at the time and date mentioned above, the Court will hear and take into consideration whatever evidence is adduced by the opposite party,' The last sentence in the letter of 5-4-1952 readthus:

'You are requested to be present at the hearing in accordance with paragraphs 2, 3 and 4 of my letter under reference.'

19. The letter under reference was the letter of the 3rd April. Mr. Kar contended that the fourth paragraph in the letter of the 3rd April was the paragraph which contained an intimation of the intention of the arbitrators to proceed ex parte and that when the letter of the '5th April asked the respondents to be present at the hearing of the 15th 'in accordance with paragraphs 2, 3 and 4' of the earlier letter, it clearly warned them that if they did not appear, the arbitrators would proceed ex parte, as already intimated by their earlier letter.

20. I find it impossible to accept Mr. Kar's, contention. In the' first place, to refer party to a particular paragraph in an earlier letter is a very indirect and most unsatisfactory way of reminding him of the contents of that paragraph and warning him that what had been stated there was still in force and would continue to hold good. In the second place, to refer to the last paragraph in the letter of the 3rd April by describing it as paragraph 4, was not to refer to it in a clear and un-mistakable manner. To the eye, the letter of the ' 3rd April appears to contain five and not four paragraphs.

The second paragraph requests the party addressed to be present at the hearing with all the evidence he had and, in particular, to produce certain items of evidence which arc then enumerated under a number of heads appearing below and set out in half-margin. Below those items is set out what appears to be a new paragraph and there the person addressed is given the liberty to bring certain other materials and to produce oral evidence.

Mr. Kar pointed out that the last of the itemsenumerated under the second paragraph ended with a semi-colon and relying upon that punctuation, he contended that what appeared immediately below was not a separate paragraph but a part of the second paragraph.

In my view, to expect a person served with a notice to dissect and analyse the paragraphs of a previous notice in that manner and then to and out which of them was the fourth paragraph and what it contained, is not to treat him reasonably, nor to give him a clear notice of the matter contained in the paragraph intended to be brought to his notice. The paragraphs of the letter of the 3rd April are not numbered. In my view, if the arbitrators intended to give the respondents a notice of their intention to proceed ex parte at the sitting of 15-4-1952, in-case they failed to attend, they chose a most ineffective way of doing so and what they in fact issued can hardly be called a notice of the relevant intention.

21. I need not, however, decide the matter on the above ground, because. there is a stronger one. The notice contemplated by the law on the subject is a notice of an intention to proceed ex parte and to determine the matter in the absence of the party who would fail to attend. Even assuming that the last paragraph in the letter of 3-4-1952, is a fourth and not a fifth paragraph and assuming further that the letter of 5th April brought the last paragraph of the earlier letter sufficiently to the notice of the respondents', it still appears to me that what was contained in the last paragraph of the earlier of the two letters was not a notice of an intention to proceed ex parte in the sense of hearing and determining the case in the absence of the respondents.

All that the paragraph says is that 'the Court will hear and take into consideration whatever evidence is adduced by the opposite party,' What it plainly means is that even if the respondents do not appear, the arbitrators will not suspend the proceedings, but will hear the appellants in their absence. To say that is not to say that the proceedings would be closed altogether, that the matter would be heard and finally determined in the absence of the respondents and that they would have no further opportunity of presenting their case at all. One may usefully compare the language used by the Legislature in the form prescribed for writs of summons. The language in Form 12 of Appendix B to the Civil Procedure Code is; 'in default of your. appearance on the day last mentioned, the suit will be heard and determined in your absence.' The language used in the form prescribed by the Rules of the Original Side, is: 'and you are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.'

The language used in the last paragraph of the letter of the 3rd April is materially different from the language of the writs of summons which I have just read and which embodies a proper notice of an intention to proceed ex parte and to hear and determine the matter in the absence of any of the parties who would fail to attend. In my view the last paragraph of the letter of the 3rd April did not contain or embody a notice of the requisite nature and consequently the case must be treatedas one where no-notice of an intention to proceedex parte in the sense of hearing and determiningthe whole case in the absence of the respondentswas given. ' .

22. If no notice of the requisite nature was given,. can it be said that by the omission to give such notice, no prejudice was caused to the respondents? In my view, the answer must be in the negative. The respondents had been, throughout the proceedings, most vigilant in attending to the case and if any dilatoriness occurred at all, it was all on the part of the appellants. There is nothing whatever to show that the respondents had ever repudiated the arbitrators to whom they themselves had gone, far less anything to show that they would not have appeared before the arbitrators in any circumstances. In fact, it will be recalled that they did appear on the date of hearing fixed, but were only late by a few minutes.

It appears from the notice dated the 5th of April that the hour of the sitting was notified as 11-30' a. m. According to the minutes of the' arbitrators, the representative of the respondents appeared not later than 11.55 a.m. and not only apologised for the delay, but also gave the reason for it, although whether the reason was a good or a bad one, is a different matter and was not even considered by the arbitrators. In that state of the facts, I find it wholly impossible to hold that the omission to give a proper notice did not cause any prejudice to the respondents and that they would not have made it their special concern to attend precisely in time if a notice had been given.

23. For die reasons given above, it appears to me that S.R. Das Gupta, J., took the right view of the matter, although he proceeded on somewhat broad lines and on consideration of a general nature. Even assuming that the arbitrators were entitled to hear the evidence of the appellants in the absence of the respondents, they were not: entitled to close the proceedings and refuse the respondents an opportunity to present their case at a further sitting, when they appeared only 23, minutes later and made their prayer before the. award had been made.

24. The appeal is accordingly dismissed, but in view of the circumstances of the case, there will be no order for costs, either in this Court or before the learned trial Judge.

Lahiri, J.

25. I agree.


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