Skip to content


Hrishikesh Das and anr. Vs. Lal Mohan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.890
AppellantHrishikesh Das and anr.
RespondentLal Mohan Das and ors.
Excerpt:
civil procedure code (act v of 1908), schedule ii, para. 8 - arbitration--failure of arbitrators to submit award within time specified, effect of--order superseding arbitration, validity of. - .....is mainly that in the orders made in the case the learned subordinate judge or judges who had from time to time to deal with this suit did not follow the procedure laid down in article 5 to the 2nd schedule of the code of civil procedure. that may be so; but the order is one made not so much under article 5 as under rule or article 8 of that schedule. the time for completion and submission of the award had been extended from time to time up to the 9th november. when the arbitrators failed to submit their award on or before that date, article 8 clearly became applicable, and it was within the discretion of the subordinate judge after hearing both parties, as in fact he did, to make an order under that article superseding the arbitration and proceeding with the suit. we can see no reason.....
Judgment:

1. This Rule arises out of a suit brought by the plaintiff opposite party in the year 1917 for dissolution of partnership and for amounts. In that suit the plaintiff made an application for the appointment of a Receiver. The Subordinate Judge, in whose Court the suit was then pending, declined to appoint a Receiver but made an order directing the defendant to furnish security in the sum of ten thousand rupees. Against that order both parties applied to this Court and obtained Rules. At the hearing of the rules the parties same to terms and agreed that all matters in dispute in the suit should be referred to the arbitration of two arbitrators, one to be nominated by the plaintiff and the other by the defendants, and in that petition they further proceeded to nominate their respective Pleaders as their appointed arbitrators. The arrangement that they entered into, there being minors concerned, recieved the sanction of the Court on the 13th March 1918, and it was directed that a copy of the petition should be forwarded with the record to the Court of the Subordinate Judge in order that he should take necessary action thereon. The records were received in his Court on or about the 3rd April 1918. Thereafter on the 6th June 1918 the nominated arbitrators took possession of the records of the suit in order that they might proceed with the proposed arbitration. For the filing of their report or award the following dates were fixed in succession, the 13th July, 6th August, 20th September and the 9th November. On neither of these dates did the arbitrators submit any award. On the 2nd November 1918 the plaintiff made an application praying that the arbitration should be superseded. Thereafter on the 19th November the arbitrators submitted to the Court a joint petition, in which they stated that on account of pressure of work they had been unable to some to a decision or complete their award and they further prayed that they should be relieved from the duty that had been placed upon them. This report was considered in the presence of the defendants on the 21st November, and after hearing the defendants the learned Subordinate Judge made an order superseding the reference, discharging the arbitrators, and directing the hearing of the suit by the Court. On the 3rd January the defendants next made an application for the appointment of a fresh arbitrator in place of the one they had originally nominated and for re-consideration of the order of the 21st November. On the 25th June the Subordinate Judge refused to re consider the order of the 21st November 1918 and confirmed the same. On the 28th August it next appears that the defendants made a further application for review of the order of the 21st November or for re-consideration of that order and of the subsequent order made on the 25th June. That was disposed of on the 17th January 1920, when the learned Subordinate Judge again confirmed the order superseding the arbitration.

2. The application on which the present Rule was issued was made to this Court on the 23rd February of this year. In support of the Rule the contention advanced by the petitioner is mainly that in the orders made in the case the learned Subordinate Judge or Judges who had from time to time to deal with this suit did not follow the procedure laid down in Article 5 to the 2nd Schedule of the Code of Civil Procedure. That may be so; but the order is one made not so much under Article 5 as under rule or Article 8 of that Schedule. The time for completion and submission of the award had been extended from time to time up to the 9th November. When the arbitrators failed to submit their award on or before that date, Article 8 clearly became applicable, and it was within the discretion of the Subordinate Judge after hearing both parties, as in fact he did, to make an order under that article superseding the arbitration and proceeding with the suit. We can see no reason for supposing that, he exercised an unsound discretion in the matter, and the long delay that the defendants made in coming to this Court and the further fact that from time to time between the 1st December and the 25th June they made applications for process upon their witnesses confirms us in the opinion that this in a matter in which we ought not to interfere.

3. This Rule is accordingly discharged with costs, three gold mohurs.

4. Let the records be returned without delay.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //