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Mukundalal Pakrashi Vs. Prokash Chandra Pakrashi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal739
AppellantMukundalal Pakrashi
RespondentProkash Chandra Pakrashi and anr.
Excerpt:
- .....of schedule 2); (3) that the award was bad as it left undetermined some of the matters which were referred to arbitration; and (4) that it determined some matters not referred to arbitration (rule 14(a) of schedule 2). the argument in support of the first point is twofold: (1) that the appellant was not allowed to cross-examine in full the wife of the plaintiff who was examined as a witness before the arbitrators on behalf of the plaintiff; and (2) that one of the arbitrators, viz. chandu baboo, did not consider the last statement of defendant 2. as regards the first branch of the argument it appears that this objection was not taken in the written statement. it is not to be found in the grounds of appeal to this court. the only evidence in support of this ground is that of the.....
Judgment:

Nasim Ali, J.

1. This is an appeal by defendant 1 against an order made by the Subordinate Judge, First Court, Alipur, dated 15th September 1937 directing an award to be filed under Schedule 2, Rule 21, Civil P.C. Four points were urged by Mr. Chakravarty on behalf of the appellant in support of this appeal: (1) that there had been misconduct on the part of the arbitrators within the meaning of Rule 15 (1)(a) of Schedule 2 of the Code (2) that the illegality of the award is apparent on the face of it (Rule 14(c) of Schedule 2); (3) that the award was bad as it left undetermined some of the matters which were referred to arbitration; and (4) that it determined some matters not referred to arbitration (Rule 14(a) of Schedule 2). The argument in support of the first point is twofold: (1) that the appellant was not allowed to cross-examine in full the wife of the plaintiff who was examined as a witness before the arbitrators on behalf of the plaintiff; and (2) that one of the arbitrators, viz. Chandu Baboo, did not consider the last statement of defendant 2. As regards the first branch of the argument it appears that this objection was not taken in the written statement. It is not to be found in the grounds of appeal to this Court. The only evidence in support of this ground is that of the appellant himself, but his evidence is inconsistent with the evidence of two of the arbitrators, Chandra Kishore Chakravarty and Rai Sahib Ananda Chandra Ganguly. The learned Judge has believed their evidence and has disbelieved the evidence of the appellant. I see no reason to differ from the conclusion of the learned Judge on this point. This contention therefore is overruled.

2. As regards the second branch of the argument the complaint of the appellant is that Chandra Babu did not consider the last statement of defendant 2 at all. This contention has no force as the letters Exs. 15 and 16 clearly indicate that ha did so. There has been therefore no misconduct on the part of the arbitrators as contemplated by Rule 15(1)(a) of Schedule 2 of the Code. As regards the second point urged in support of the appeal, the first) argument of the appellant is that the award is illegal on the face of it as the supplementary award which has been directed to be filed was passed by the arbitrators at a time when they were functus office. It was argued by the learned advocate that after the first award was published the arbitrators had no power to issue a second award, and, consequently, the second award is illegal on the face of it. This contention has no substance. The first award shows that all the matters referred to arbitration were not and could not be decided by the first award as the parties were not prepared with their statements regarding some of the matters in controversy. The first award definitely states that there will be a supplementary award. In pursuance of this reservation in the first award, the second award was given. The two awards taken together therefore make the complete, award disposing of all the disputes referred to arbitration.

3. The next argument of the learned advocate is that the award is illegal on the face of it as all the arbitrators did not sign the award on the same date. It appears however that the decision of the arbitrators was arrived at after joint deliberation and that the award was prepared in accordance with the said decision. The mere fact that one of the arbitrators signed one day later cannot make the award illegal. As regards the third point raised in support of this appeal it appears that this is covered by ground No. 39 of the grounds of appeal. It appears however from the paper book of this case that this ground was abandoned by the appellant after the filing of the appeal. It is no longer therefore open to the appellant to raise this ground now before us.

4. The last point urged is that the arbitrators decided some matters which were not referred to their arbitration. It was argued that although the assets and liabilities of the parties in the business called the All India Engineering and Trading Business were not referred to arbitration the arbitrators dealt with this matter in their award. The deed of reference however clearly indicates that the dispute relating to this business and to all assets and liabilities of the parties was expressly referred to arbitration. This contention therefore must be overruled. All the points taken by the appellant in support of this appeal therefore fail. The appeal is accordingly dismissed with costs, the hearing-fee in this Court being assessed at two gold mohurs. The cross-objection is not pressed and is therefore dismissed without costs.

Derbyshire, C.J.

5. I agree.


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