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Manindra Nath Mandal and anr. Vs. Mohanunda Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.161
AppellantManindra Nath Mandal and anr.
RespondentMohanunda Roy and ors.
Cases ReferredRamji Ram v. Salig Ram
Excerpt:
arbitration - award--insertion of name as arbitrator without knowledge of one party--submission to proceedings by that party--whether party can object subsequently--arbitrator not deciding certain matter--matter ought to have been brought to arbitrator's notice--blanks and omissions in award--rules for calculation given without giving result--arbitrator--judicial acts to be jointly done--ministerial act reception of written statement--one arbitrator receiving written statement, whether irregular--arbitrator refusing to take evidence evidence ought to be distinctly tendered--award not signed at same time and place, whether void--umpire--appointment of umpire when difference of opinion among arbitrators--no provision as to umpire--whether award bad--death of party, effect of. - .....and eighthly, that the award was void, because it had been made after the death of one of the parties to the submission.2. in support of the first ground, it has been contended that the agreement between the parties was that the matters in difference between them should be referred to the arbitration of one person only, namely, babu benode behary mondal, and that after this had been settled, the plaintiffs-respondents fraudulently inserted in the instrument of submission without the knowledge of the appellants, the name of babu kuloda prosad mukerjee. the subordinate judge has examined the evidence on this part of the case, and has come to the conclusion that the allegation of the appellants has not been established. he has relied upon one very material circumstance; namely, that.....
Judgment:

1. This is an appeal under Section 104 of the Code of Civil Procedure of 1908, against an order made under Clause 3 of the second Schedule of the Code. It appears that the parties to this proceeding made a submission to arbitration on the 2nd August 1907. The arbitrators gave their award on the 21st March 1908. On the 15th May following, the respondents before us applied to the Court under Clause 20 of the second Schedule of the Code to file the award. Objections were taken by the appellants, and were of all conceivable descriptions. The Subordinate Judge has considered these in detail and overruled every one of them. The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed substantially on eight grounds; namely, first, that there was no valid submission to arbitration, because by the fraud of the respondents, the name of Babu Kuloda Prosad Mukerjee was inserted in the submission, whereas it had been agreed upon between the parties that the matters in difference between them should be referred to the arbitration of one gentleman only; secondly, that the arbitrators had decided matters not included in the submission; thirdly, that the award is vague and uncertain and also defective, because the arbitrators had left undecided matters included in the submission; fourthly, that the arbitrators were guilty of misconduct, inasmuch as one of them received a document in the absence of his colleague and of the opposite party; fifthly, that the arbitrators have improperly refused to take important evidence; sixthly, that the award was void, because it was not signed by both the arbitrators at the same time and place; seventhly, that the reference to arbitration was void, because there was no provision made therein for the appointment of an umpire, and eighthly, that the award was void, because it had been made after the death of one of the parties to the submission.

2. In support of the first ground, it has been contended that the agreement between the parties was that the matters in difference between them should be referred to the arbitration of one person only, namely, Babu Benode Behary Mondal, and that after this had been settled, the plaintiffs-respondents fraudulently inserted in the instrument of submission without the knowledge of the appellants, the name of Babu Kuloda Prosad Mukerjee. The Subordinate Judge has examined the evidence on this part of the case, and has come to the conclusion that the allegation of the appellants has not been established. He has relied upon one very material circumstance; namely, that the appellants, without any objection, submitted to the arbitration of both the gentlemen named. This circumstance shows conclusively that the allegation of the plaintiffs is not true. The conduct of the appellant further shows that if there was any fraud on the part of the respondent, the appellant waived all objections on this ground even after they had been apprised of what had happened. The explanation submitted by the learned Vakil for the appellants is that after the defendants became aware that the name of Babu Kuloda Prosad Mukerjee had been entered in the deed of submission, they did not think it wise to make any protest and accepted the position that he was a validly appointed arbitrator. In our opinion, if the facts are such as stated by the learned Vakil for the appellants, it is no longer open to them to repudiate the position they deliberately took up before the arbitrator Sheonath v. Ramnath 10 M.I.A. 413 at p. 433 : 5 W.R. (P.C.) 21 : 1 Ind. Jur. (N.S.) 161. The first ground is, therefore, unsustainable.

2. In so far as the second objection taken by the appellants is concerned, it is in fact contradictory in part to the third objection urged on their behalf. It has been argued that the parties agreed to refer to the arbitrators the question of the disputes in respect of certain conveyances and it was never their intention to submit to the arbitrators all disputes between them relating to the estate of Kartik Prosad and Krishna Prosad. The terms of the submission, however, negative this contention. The document of submission states clearly that the arbitrators were appointed to settle the dispute between the parties regarding the properties left by Kartik Prosad and Krishna Prosad, and, in the schedule to the instrument, the whole of the properties left by these two persons is described as the subject-matter of the arbitration. There is no substance, therefore, in the second objection.

3. In so far as the third objection is concerned, the argument is divisible into two branches. It has been contended, in the first place, that the award is defective, because the arbitrators have omitted to decide the matter in controversy between the parties in respect of the three specified properties. In so far as one of these properties is concerned, namely, the homestead and the adjacent lands, the matter has been decided by the arbitrators, but apparently in respect of the other two properties, namely Baymora and some jungle lands, the matter has not been expressly decided by the arbitrators. On this footing1 it has been argued by the learned Vakil for the appellants, that the award is bad in its entirety, because the arbitrators have left undecided the question relating to a portion of the matters in difference. But, it must be observed in this connection that it does not appear to have been brought to the notice of the arbitrators that there was any dispute between the parties with regard to these properties. The objection, undoubtedly, was not taken before the Subordinate Judge in the Court below, when the award was assailed on numerous other grounds. Consequently, the principle laid down in the cases of Middleton v. Weeks (1613) Cro. Jac. 200 and Elson v. Rolfe (1805) 2 Smith 459 is applicable. That principle is that no objection can be made to the award if the arbitrator determines allegations brought before his notice, though there are other matters within the scope of the submission to which his attention has not been drawn. In other words, as stated in the case of Rees v. Waters (1847) 16 M. & W. 263 : 4 D. & L. 567 in order to invalidate an award for not deciding a particular question, it must be established that the point was specifically stated and brought to the notice of the arbitrators. The first branch of the third contention, therefore, fails.

4. In so far as the second branch of the third contention is concerned, our attention has been invited to the fact that there are blanks in two places in the award. It has also been pointed out that in two other places the arbitrators have decided that certain lands are to be held under tenancy right, in respect whereof the reitt is left unascertained. Finally, it has been observed that, in another instance, the rent is assessed at one rupee; but it is not specifically stated to whom that rent is payable. It may be conceded that, at first sight, it does appear that the award is open to the objection of vagueness and uncertainty by reason of the defects mentioned. But upon closer examination, it appears that there is no substance in any of these alleged defects.

5. With regard to the first item, the arbitrators have laid down the principle Upon which the sum payable has to be ascertained. The arbitrators have overruled the contention that the dorputnidars under the document executed by Brahmomoyee and Umamoyee on the 2nd September 1902 had made payment of the rent alleged by them. The amount of rent payable by the darputnidar to the zemindar can be ascertained without any difficulty from the durputni lease. The arbitrators have also laid down in detail the principle upon which the particular set off has to be allowed, though they have not made out the actual calculation and have left a blank where a particular figure ought to have been inserted in their award. Under such circumstances, we are not prepared to hold that there is any real uncertainty in the award Higgins v. Willes (1828) 3 M. & R. 382; Hopcraft v. Hickman (1824) 2 S. & S. 130 : 3 L.J. Ch. (O.S.) 43 and Beale v. Beale (1635) Cro. Car. 383. The principle is that if the arbitrator has given rules for calculating the amount of money to be paid, without stating the result of such calculation, the award is sufficiently certain, on the principle that that is sufficiently certain which can be made certain [Broom on Legal Maxims, 1911, page 478]. As an illustration of this rule, reference may be made to the case of Beale v. Beale (1635) Cro. Car. 383 in which an award was made that one party should pay to the other all such money as he had expended in the prosecution of a suit. The award was held to be sufficiently certain, because the amount could be ascertained from the attorney's bill. The principle applicable to cases of this description was lucidly stated by Mr. Justice Gushing in the case of Strong v. Strong (1852) 9 Cushing 560: 'Where it is laid down as a principle of law that an award should be final, the meaning is not that nothing shall remain to be done to complete the execution of the award, but that the thing to be done shall have been determined and defined to a reasonable certainty.' The division in that case was to be of certain chattels, the property of a partnership, and the learned Judge in applying the above view of the law observed as follows: It is true that the arbitrators did not themselves actually sever the things to be divided, whether hay, grain, utensils or the like. There is nothing in the submission which requires them to effect such actual severance and mechanical distribution of those things. They adjudged in the award that the things should be divided and they decided in what proportion. In many cases, no more is possible to be done, as in an award for the division of partnership effects, which may happen at the time to be abroad or otherwise not in the personal possession of either party, and of which the quantity or value is not known; or, as in the case of an award concerning objects not in their nature presently divisible or susceptible of division, such as the yet immature crop or fruit of trees; or, as in the case of joint interests not in their nature capable at any time of a material severance, like the property in a ship. All these and many other examples, which readily suggest themselves, would seem to show that an award which purports to divide a property between two persons by prescribing a rule of division may well be final, though the property in question be not actually divided, nay, though it be incapable of division, if the award gives a definite and certain rule for the division, there is no want of power in the laws to apply the rule and enforce its application. Though possible doubt may attach to the doctrine by reason of the dicta in some English cases, yet on the whole, it is admitted in those very cases that if the arbitrator makes some regulation upon matters of difference,' to use the words of Baron Parke or 'gives direction' as to what is to be done, according to the language of Lord Abinger, 'it is decisive in favour of the award.' Again, in the case of Thorp v. Cole 2 C.M. & R. 367 : 4 Daul. 437 : 5 L.J. Ex. 24 reference to extrinsic documents was allowed for the purpose of explaining or determining an amount not named or ascertained in the award otherwise than by reference to such document. The award was that the defendant should pay to the plaintiff's Attorney a certain sum which was paid by him: the bill included charges relating to the plaintiff as well as to another man; the award was sufficiently certain, though it had not determined specifically the plaintiff's share of the bill, for since it was stated that the bill had already been delivered, it could be ascertained by a reference to it.

6. In so far as the second item is concerned, it has been pointed out that the amount of rent has not been assessed in respect of two properties. It is manifest, however, that the substantial point in controversy between the parties was, whether those lands were to be allowed to be held under tenancy right. The question of the assessment of rent was of a wholly subordinate character and the arbitrators very properly left the amount of rent to be adjusted hereinafter by a proper tribunal.

7. In so far as the third item is concerned, namely, the patty to whom the rent of one rupee was payable, it is clear that the intention of the arbitrators was that the amount should be paid to the holder of the superior interest, that is, the representative of Kartik Prosad and Krishna Prosad. It follows, consequently, that the second branch of the third contention must fail.

8. In support of the fourth ground urged by the appellants, our attention has been drawn to the circumstance that one of the arbitrators received the written statement of the defendants, now appellants before us, at a time when his colleague and the plaintiffs-respondents were absent. It has been suggested that this was a grave irregularity on the part of the arbitrators, sufficient by itself to invalidate the entire proceeding. In support of this contention, reliance has been placed upon the cases of Khelut Chundsr Ghose v. Tara Chand Koondoo 6 W.R. 269; Nandram v. Fakir Chand 7 A. 523 and Thammiraju v. Bapiraju 12 M. 113. Reference has also been made to the observations in the case of Harvey v. Shelton 7 Beav. 455 at p. 462 : 13 L.J. Ch. 466. The cases relied upon are clearly distinguishable and are of no assistance to the appellants. They lay down the proposition that judicial acts, in order that, they may be valid, must be jointly performed Sreenath v. Raj Chunder 8 W.R. 171. But the question remains whether the mere execution of a written statement by one of the arbitrators is a judicial act within the meaning of this rule. There can be no question, as pointed out by this Court in the case of Moti Lal Ghosh v. Girish Chandra Ghosh 12 C.L.J. 346 : 6 Ind. Cas. 109 that arbitrators have power to do singly acts of a ministerial nature. In the case before us, it is difficult to see how it can be seriously contended that the mere reception of a written statement by one of the arbitrators was a judicial act. The case of Harvey v. Shelton 7 Beav. 455 at p. 462 : 13 L.J. Ch. 466 upon which reliance has been placed, was obviously of an entirely different character. In that case, one of the parties to the reference interviewed one of the arbitrators, and discussed the matters in difference between him and his opponents, and the ultimate result of the interview was that the arbitrator in question altered the view he had previously expressed. This was manifestly an improper act on the part of the arbitrator and was by itself sufficient to invalidate the proceeding. The present case is of an entirely different description. In our opinion, there is no substance in the fourth objection taken by the appellants.

9. In support of the fifth ground, it has been contended that the arbitrators improperly refused to take important evidence. Our intention has been invited to a statement by the arbitrators themselves that they declined to examine Brahmomoyee, although it was suggested by both the parties that she should be examined as a witness. It is clear, however, upon the evidence that the witness in question was not tendered for examination. The arbitrators were invited to go to the house where Brahmomoyee resided and to examine her. In our opinion, they very properly declined to examine the pardanashin lady as a witness under these conditions. The principle applicable to a case of this description is perfectly well settled. In order to make out a case entitling a party to impeach the award, the witness must be distinctly tendered to the arbitrators. It is not enough to put an abstract proposition to an arbitrator and upon his answer, to decline to give evidence or ;prefer a claim. The party should tender a specific case and specific evidence Craven v. Craven 7 Taunt 644 : 1 Moor. 403 : 18 R.R. 623 and Grazebrook v. Davis 5 B. & C. 534 : 4 L.J. (O.S.) R.R. 321 : 8 D. & R. 295. There is no substance, therefore, in the fifth ground urged by the appellants.

10. In support of the sixth ground, which is of a highly technical character, it has been argued that the award is void, because it was not signed by the arbitrators at the same time and place. In support of this argument, it has been contended that the signing of an award is a judicial act and like other judicial acts it must be performed jointly by the arbitrators concerned; and reference has been made to the cases of Wade v. Bowling 4 Ellis. & Bl. 44 : 2 C.L.R. 1642 : 23 L.J.Q.B. 302 : 18 Jur. 728 : 2 W.R. 567; Wright v. Graham 3 Exch. 131 : 18 L.R. Ex. 29; Anning v. Hartley 27 L.J. Ex. 145; In re Jai Mangal Singh 11 W.R. 433 : 3 B.L.R. A.C. 82; Jai Mangal Singh v. Mohanram Marwari 12 W.R. 397 : 8 B.L.R 319 n and Benode Lal Pakrashi v. Pran Chandra Pakrashi 14 C.L.J. 143 : 11 Ind. Cas. 898. In so far as the case of Wade v. Bowling 4 Ellis. & Bl. 44 : 2 C.L.R. 1642 : 23 L.J.Q.B. 302 : 18 Jur. 728 : 2 W.R. 567 is concerned, no doubt, it supports the contention of the appellants. But we observe that, so far back as 1871, Mr. Justice Phear, in the case of Bhobosundari v. Makhun Lal Dey 8 B.L.R. 128 declined to adopt the English rule on the subject, as not founded upon principles of justice, equity and good conscience. The view taken in the case last mentioned has been adopted by the Madras High Court in Muthukutti Nayakan v. Acha Nayakan 18 M. 22. The case of In re Jai Mangal Singh 11 W.R. 433 : 3 B.L.R. A.C. 82, the head-note to the report whereof is misleading, is really not an authority in support of the contention of the appellant; while, so far as the decision in Jai Mangal Singh v. Mohan Ram Marwari 12 W.R. 397 : 8 B.L.R 319 n is concerned, the learned Judges W6re upon this point equally divided in opinion. With regard to the case of Benode Lal Pakrarhi v. Pran Chandra Pakrashi 14 C.L.J. 143 : 11 Ind. Cas. 898 it is sufficient to observe that the award there was invalidated on the ground that one of the arbitrators had not attended all the sittings and had subsequently signed blank papers upon which the award was drawn up and written out by his colleagues. The position, therefore, is, so far as this Court is concerned, that the opinion expressed by Mr. Justice Norman in Jai Mangal Singh v. Mohan Ram Marwari 12 W.R. 397 : 8 B.L.R 319 n is in favour of the appellants, whereas the opinion expressed by Mr. Justice Jackson in the same case and the view adopted by Mr. Justice Phear in Bhobosundari Dasi v. Makhun Lal Dey 8 B.L.R. 128 is opposed to their contention. Ardesar v. Secretary of State 9 B.H.C.R. 177. Under these circumstances, we are free to decide the matter as one of principle and we are clearly of opinion that the rule laid down in Wade v. Dowling 4 Ellis. & Bl. 44 : 2 C.L.R. 1642 : 23 L.J.Q.B. 302 : 18 Jur. 728 : 2 W.R. 567 ought not to be adopted in this country. We may add that even in England the contrary view has some times been maintained. See, for instance, the cases of Little v. Newton 9 Dowling 437 : C.L.J. C.P. 88 : 5 Jur. 246 : 2 Man. & G. 351 : 2 Scott. N.R. 165 and In re Hopper 2 Q.B. 367 at p. 376 : 36 L.J.Q.B. 97 : 8 B & S. 100 : 15 L.T. 566 : 15 W.R. 443. We may further observe that the English rule Stulworth v. Inns 13 M. & W. 466 : 2 D. & L. 428 : 14 L.J. Ex. 81 : 9 Jur. 285; Eads v. Williams 24 L.J. Ch. 531 : 4 De G.M. & G. 674 : 1 Jur (N.S.) 193 : 5 W.R. 98 has not been adopted in the American Courts, on the ground that it is of a highly technical character and not conducive to the ends of justice Maynard v. Fredrick (1851) 7 Cushing 247. It has rightly been remarked that the rule that an award is invalid unless it has been signed by all the arbitrators at the same sitting, is certainly a rule carried to a point beyond what reason would seem to require, and it is more than probable that so rigid a doctrine would throw out many awards which justice would require should be upheld. In the case before us, it is conclusively established that the actual decision is the joint adjudication of all the arbitrators. That decision was subsequently engrossed by one of the clerks and the document in its final form was signed by the different arbitrators on different occasions. That, in our opinion, does not invalidate the award. The sixth ground, therefore, completely fails.

11. In support of the seventh ground, it has been contended that the submission to arbitration was bad, because no provision had been made therein for the appointment of an umpire in the event of difference of opinion between the arbitrators. In support of this view, reliance has been placed upon the cases of Futteh Singh v. Gango 4 W.R. 4; Haradhan Dutt v. Radhanath Shaha 10 W.R. 398 : 2 B.L.R. (S.N.) 14. The learned Vakil for the appellant has. however, conceded that the contrary view was adopted by this Court in the cape of Gour Chunder Buttacharjee v. Sodoy Chunder Nundee 17 W.R. 30. The first two cases, it may be mentioned, were decided under the Code of 1859 and related to references to arbitration by Courts. In this connection, it is worthy of note that, under Section 509 of the Code of 1882, it was expressly provided that in cases of reference to arbitration in pending suits, provision had to be made for the appointment of an umpire in the event of a difference of opinion between the arbitrators. There was, however, no such legislative provision in respect of private submissions by parties. We are unable to hold nor can we discover any intelligible principle upon which we may be reasonably invited to h Id that the award is void, though there has been no difference of opinion between the arbitrators, merely because no provision was made for a contingency which has not actually happened. The seventh ground cannot be supported.

12. With reference to the eighth and last objection taken by the appellant, it has been argued that as one of the parties died before the arbitrators delivered their award, their authority terminated, and the award subsequently delivered was void and inoperative in law. In our opinion, there is no foundation for this contention. The cases of Harakrishna Milter v. Ram. Gopal Mitter 6 Ind. Cas. 170 : 14 C.W.N. 759 and Perumalla Satyanarayana v. Perumalla Venkata 27 M. 112 show that the principle of nunc pro tunc is applicable to proceedings before arbitrators. The learned Vakil for the appellant has, however, contended that these cases are distinguishable, because in each of them, the reference to arbitration had been filed in Court, whereas in the case before us the whole of the proceedings before the arbitrator was upon a private submission. But, clearly, there is no substantial difference in principle between the cases mentioned and the cases before us. As pointed out by the learned Judge of the Madras High Court in Perumalla Satya Narayana v. Perumulla Venkata 27 M. 112 the rule of the English Common law that a submission to arbitration stands revoked by the death of one of the parties, is not applicable to this country. The test to be applied here is what is the true nature of the submission? Were the matters in difference personal questions in respect whereof it was not intended that the succession in interest of the parties should be affected by the decision of the arbitrators? If the intention of the parties was that not merely themselves but their representatives-in-interest should be bound by the decision of the arbitrators, the reference plainly does not stand revoked merely by the death of one of the parties. Ramji Ram v. Salig Ram 14 C.L.J. 188 : 11 Ind. Cas. 481. If this view is maintained, the only other question that arises, is, whether after the death of one of the parties, any judicial act, such as the hearing of the case, was undertaken by the arbitrators. If the hearing had not been completed it would have been necessary to bring the representatives of the deceased party on the record and to make them parties to the submission. Here, however, the hearing had terminated and nothing remained for the arbitrators to do but to deliver their award. We are of opinion, that the award so delivered is binding upon the parties and their representatives-in-interest. There is no substance, therefore, in the eighth ground urged by the appellant.

13. The result is, that all the grounds upon which the decision of the Subordinate Judge has been assailed fail, and must be overruled, The appeal is, therefore, dismissed with costs. We assess the hearing fee at ten gold mohurs.


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