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V.A. Dacosta Vs. O.E. Coley - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal200
AppellantV.A. Dacosta
RespondentO.E. Coley
Cases ReferredPeatonjee Nussurwanjee v. Manockjee
Excerpt:
arbitration - long and unreasonable delay in the conduct of the proceedings--revocation--civil procedure code (act xiv of 1882), section 523--appointment of arbitrator by the court. - .....stated to us that he was instructed that a meeting, or an attempt to hold a meeting, did take place in december, shortly before the appellant sent his letter of revocation. this is denied by the appellant; and as there is no proof of it, it cannot, of course, be taken into consideration. it is most probably incorrect: there is nothing said of such a meeting in the respondent's petition of december 21st. as the case stands, therefore, we have * only these facts: (1) a submission to arbitration in march; (2) a suspension of the arbitration soon after, by reason of the incapacity of the arbitrator nominated by the respondent; (3) a proposal by the respondent for the substitution of another person in his place, assented to by the appellant in june, but not carried out; (4) the lapse of.....
Judgment:

Pigot and Beverley, JJ.

1. The award in this case is impeached in appeal on two main grounds; one, that the submission to arbitration was duly revoked before the order of the Court was made under which the agreement for reference was ordered to be filed under Section 523; and the other, that the proceedings had in the Court of the Subordinate Judge were irregular, and such that the arbitrators who made the award, upon which the decree is based, were not a properly-constituted body of arbitrators at all, and that the award for that reason is bad. The first question is as to the right of the appellant to revoke the submission to arbitration which, it is clear, can only be on good grounds.

2. The submission was in March 1886. We have nothing before us to enable us to determine whether anything was done by the arbitrators, though it is stated that two or three meetings were held. But, after the submission, the arbitrator appointed by the respondent went to Darjeeling for the benefit of his health, and the proceedings, if any had taken place, were suspended. A suggestion was made on the part of the respondent in June, that a fresh arbitrator should be appointed in his place: this was assented to by the appellant. This was admitted before us; it does not appear to have been proved before the Subordinate Judge. Nothing, however, was done from that time until the following December, and there is no evidence that, until after the letter of December 8th revoking his submission was sent by the appellant, any attempt to re-open or continue the proceedings was made. In answer to a question by us, the respondent's pleader stated to us that he was instructed that a meeting, or an attempt to hold a meeting, did take place in December, shortly before the appellant sent his letter of revocation. This is denied by the appellant; and as there is no proof of it, it cannot, of course, be taken into consideration. It is most probably incorrect: there is nothing said of such a meeting in the respondent's petition of December 21st. As the case stands, therefore, we have * only these facts: (1) a submission to arbitration in March; (2) a suspension of the arbitration soon after, by reason of the incapacity of the arbitrator nominated by the respondent; (3) a proposal by the respondent for the substitution of another person in his place, assented to by the appellant in June, but not carried out; (4) the lapse of six months, during which nothing is done; (5) the fact that the respondent, being the claimant as against the appellant, was the person on whom, caeteris paribus, it was incumbent to promote the conduct of the proceedings.

3. It appears to us that, under these circumstances, unexplained by any act of the appellant either conducing to this long delay, or consenting to or waiving it, the appellant was, prima facie, entitled to decline to go on with the reference.

4. Had the Subordinate Judge thought fit to enquire into the circumstances, it is possible, of course, that facts might have been proved, which would have shown that the appellant was not entitled to revoke. But we have only to deal with what is before us; and must assume, for the purposes of our decision, that there was nothing more in the case than appears.

5. It is true that the appellant did not verify his written statement. But the delay mentioned in it was an admitted fact before the Subordinate Judge as before us.

6. We think that, on these facts, there appears such an unreasonable neglect in the prosecution of the arbitration as entitled the appellant to put an end to it. In the case of Pestonjee Nussurwanjce v. Manockjee 12 Moore's I.A. 112 the subject was considered as to whether or not the appellant was justified in revoking in that case; and we think that the circumstances of the present case are not wholly dissimilar to those which, in the case supposed by their Lordships in the decision of that case that page 131, would have justified, or might have justified, the appellant in that case in declining to proceed; no doubt, as we pointed out during the argument yesterday, the period in that Base between the submission to arbitration and the attempt to revoke was longer than that in the present case. But here we have a period of nine months elapsing during which, so far as the case before us shows, nothing was done to make any change in the state of things between the appellant and the respondent. In the case of Peatonjee Nussurwanjee v. Manockjee 12 Moore's I.A. 112 almost immediately after the reference the partnership was dissolved, and the appointment of the person, who was to have the business in future, had been, as their Lordships point out, speedily determined, and, subsequently to that, several important decisions in the arbitration had been arrived at. We agree with the argument of the learned Counsel for the appellant that, if anything, the observations of their Lordships are rather an authority in his favour on the question at issue here. The powers conferred by the Code upon arbitrators are very great; and we think that a party has a right, if he chooses, to insist upon it that, once an arbitration is decided upon, it shall be proceeded with reasonable speed. There is no doubt in the present case the delay that took place was in itself unreasonable, and, being unexplained and not justified by any acts of the appellant, we hold that he had good cause under the circumstances for revoking this agreement. That being so, it was no longer competent to the Court to order the agreement to be filed under Section 523, and the proceedings were therefore invalid.

7. Having determined the appeal on this point, it is not necessary to go into the question elaborately argued before us as to the character of the proceedings taken by the Subordinate Judge; but we may say that, under no circumstances, could we have allowed the award arrived at, as it was, to stand. A proper opportunity ought, we think, to have been given to the appellant to come in before the appointment of the arbitrator in place of Baboo Shib Chunder, whose letter, declining to continue as arbitrator, was received apparently by the Subordinate Judge on the 4th April; and, on that day, on his receiving that intimation, he appointed a fresh arbitrator. We think that the Court ought to have allowed the parties an opportunity of being heard as to the selection of an arbitrator. It is not necessary, however, for us to base our decision upon this ground, and the less so, because, were we to determine the case with reference to the validity of the proceedings taken, and apart from the question of the power of the appellant to revoke on the 8th of December, we should be obliged to send back the case again for the appointment of fresh arbitrators. But inasmuch as, in our judgment, the submission had been on that date validly revoked, that order was inoperative, and the proceedings had under it were likewise inoperative.

8. We, therefore, allow the appeal, reverse the order of the Subordinate Judge made under Section 523 directing that the reference be filed, and set aside his decree on the award, with costs throughout.


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