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Akshoy Kumar Nandi Vs. S.C. Dass and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal359
AppellantAkshoy Kumar Nandi
RespondentS.C. Dass and Co.
Cases ReferredShephard v. Brand
Excerpt:
- ordercestello, j.1. this is an application to set aside an award which was filed on 12th may 1933. the application is made by a firm named s.c. dass & co., who were the defendants in the suit (being suit no. 421 of 1932) out of which the matter arises. that suit was instituted by the plaintiff akshoy kumar nandi on 27th february 1932 to recover from the defendant firm the sum of rs. 9969-9-0 being monies alleged to have been lent to the defendant firm on 27th february 1929 and 10th june 1929.2. the present applicants as the defendants in that suit by their defence denied that sum was due to the plaintiff, and to their written statement they annexed statements of account which purported to show that after giving credit for the sums of rs. 2951-7-0 and rs. 5000 which were sums alleged to.....
Judgment:
ORDER

Cestello, J.

1. This is an application to set aside an award which was filed on 12th May 1933. The application is made by a firm named S.C. Dass & Co., who were the defendants in the suit (being Suit No. 421 of 1932) out of which the matter arises. That suit was instituted by the plaintiff Akshoy Kumar Nandi on 27th February 1932 to recover from the defendant firm the sum of Rs. 9969-9-0 being monies alleged to have been lent to the defendant firm on 27th February 1929 and 10th June 1929.

2. The present applicants as the defendants in that suit by their defence denied that sum was due to the plaintiff, and to their written statement they annexed statements of account which purported to show that after giving credit for the sums of Rs. 2951-7-0 and Rs. 5000 which were sums alleged to have been advanced by way of principal, a sum of Rs. 21,016-4-0 was still due by the plaintiff to the defendant firm in respect of certain dealings and transactions between them and the plaintiff. The defendant firm in their written statement claimed that an account should be taken of those dealings and transactions including the amounts paid by the plaintiff to the defendant firm and that a decree should be made awarding to the defendant firm such sums as might be found due to them on the taking of the account.

3. In answer to the defendant's written statement which in effect was a counter-claim the plaintiff filed a written statement denying that any sum of money had been advanced to him by the defendant firm, but at the same time admitting that he had paid to the defendant the sum of Rs. 14,426-15-0 which sum however with the exception of Rs. 345 which had been paid to the defendant firm for the price of a Remington Typewriter supplied by them to the plaintiff was stated to represent the sums of money advanced by the plaintiff to the defendant firm from time to time. The plaintiff further said that some of these loans had been repaid by the defendant with interest leaving outstanding the sums of Rs. 2,951-7-0 and Rs. 5,000. The plaintiff further stated in his written statement that the statements of account put forward by the defendant, and the particulars set out therein were not correct. That the alleged payments on the debit side of the statement between the 10th May and 14th. July 1932 represented monies paid by the defendant firm for the purchase of various goods from Messrs. Birkmyre Bros., in the benami of the plaintiff for facilitating transactions between the partners and that those sums had been paid into the plaintiff's account in the Allahabad Bank by the defendant firm and again drawn out by payments to Messrs. Birkmyre Bros. The plaintiff further stated that the sum of Rs. 3,391-8-0 under date 2nd April 1928 represented the sale proceeds less commission of 200 shares in the Calcutta Industrial Bank belonging to the plaintiff and made over to the defendant firm for collection of dividend on the same.

4. It is to be observed, that at this stage the position was, there was a suit by Akshoy Kumar Nandi against S.C. Dass & Co., and to all intents and purposes a regular counter-claim, by S.C. Dass & Co., against Akshoy Kumar Nandi. Incidentally, this matter in my opinion emphasises once more the desirability of having proper rules framed by this Court for dealing with the question of counterclaims. I make that observation because the defendants in the original suit were not content with having set up what was in effect a counter-claim in their written statement; they proceeded on or about 7th June 1932 to institute a cross suit against the plaintiff Akshoy Kumar Nandi. That suit was No. 1291 of 1932. The plaint in that suit is practically a replica of or, at any rate, is based upon the written statement in the first suit, that is: to say, Suit No. 421 of 1932. To the plaint was annexed the same statement of account that had been annexed to the written statement in the first suit. For some reason or other which is not apparent the two suits were not formally consolidated which I should have thought would have been an obvious and reasonable course to have been pursued. However, that was not done and on 1st December 1932, by an order made in Suit No. 421 of 1932 by Buckland J. to whose Court the suit had been assigned by consent of the parties all matters in dispute in the suit between the parties thereto including the question of costs of the suit and of the arbitration proceedings were referred to the decision of Mr. Aroon Kumer Roy and Mr. Satyenda Kumar Basu, members of the Bar who were to make their award in writing and submit the same to the Court, together with all proceedings had before them, by the month of February 1933. The order provided that in case of difference of opinion between those arbitrators the matters in dispute between the parties should be referred to the final decision of Mr. H.D. Bose as umpire.

5. Subsequently by another order made in the same suit on 28th February 1933, which was also made by the consent of the said parties the time limited by the order of 1st December 1932, that is to say, the time granted to the arbitrators to make and submit their award was extended until 6th May 1933. Further, on 1st December 1932 an order was made by Buckland J,, in Suit No. 1291 of 1932. That order also was made with the consent of both parties, and by the terms of it all matters in dispute in Suit No. 1291 of 1932 including the question of costs in the suit and the arbitration proceedings were referred to the decision of the same two members of the Bar who were to make their award in writing and submit their award to the Court together with all proceedings had before them by the month of February 1933. And again, in case of difference of opinion between the arbitrators the matter was to be referred to the final decision of Mr. H.D. Bose as umpire. Just as in the case of Suit No. 421 of 1932, so in the case of Suit No. 1291 of 1932 another order was made on 28th February also with the consent of both parties and the time granted by the order of 1st December 1932, made in Suit No. 1291 of 1932, was extended until 29th April 1933.

6. Pursuant to the order of 1st December 1932 made in Suit No. 421 of 1932 the arbitrators entered upon the arbitration. Certain issues were settled by the arbitrators and accepted by the parties.

7. Those issues were as follows:

1. Did the plaintiff lend and advance to the defendants the sums of Rupees 2951 and the sum of Rs. 5000 which the defendant promised to pay the plaintiff on demand with interest @ 9 per cent per annum, or the said sums of money were paid by the plaintiff to the defendant towards payment of the defendant's dues from the plaintiff in respect of various dealings and transactions between the parties mentioned in the statement of account annexed to the defendant's written statement?

2. If latter what sum is due by the plaintiff to the defendant?

8. It is to be observed therefore that so far as the arbitration in connexion with Suit No. 421 of 1932 is concerned the matter was simple and precise, namely, whether the defendant was indebted in the two sums I have mentioned to the plaintiff or not. Subsequently however the arbitrators decided to proceed with the arbitration of the matters in dispute in Suit No. 1291 of 1932, and in that connexion a series of issues were settled by the arbitrators and accepted by the parties. I do not think it necessary to enumerate those issues in detail; they are set out in para. 8 of the petition: on which the present proceedings are founded. There were altogether fourteen issues so settled and accepted by the parties.

9. It appears that those arbitration proceedings like so many other similar proceedings unfortunately-be it said-were protracted and occupied altogether something like thirty sittings. This seems to be another instance illustrative of the fact that an arbitration so far from being an expeditious and economical method of settling business disputes is only too often exactly the reverse. However the arbitration held in connexion with Suit No. 1291 of 1932 was finally concluded on 28th April 1933 and thereupon the parties on both sides agreed that the evidence adduced on their behalf on each side respectively in the arbitration proceedings in Suit No. 1291 of 1932 should be treated as evidence for the purposes of arbitration in connexion with Suit No. 421 of 1932.

10. On 29th April 1933 the arbitrators signed their award in the proceedings in connexion with Suit No. 1291 of 1932. By that award they found that nothing was due to the, plaintiff from the defendant firm in that suit but on the other hand a sum of Rs. 9750 was due from the plaintiff to the defendant firm in that suit, that is to say, the arbitrators held that the firm of S.C. Dass & Co. were indebted to Akshoy Kumar Nandi to the extent of Rs. 9750. But in that award the arbitrators, said that as the amount found by them to be due to the defendant by the plaintiff in that suit was by an award made that same day in Suit No. 421 of 1932 being directed to be paid by the plaintiff to the defendants in that suit they did not make any award for the said sum in favour of the defendant in Suit No. 1291 of 1932. The award which they actually made in connexion with Suit No. 1291 of 1932 was in these terms:

1. That the suit be dismissed.

2. That the plaintiff do pay to the defendant his costs of this suit and of the arbitration proceedings with interest at 6 per cent per annum from the date of taxation including Rs. 5900 being the fees of the arbitrators and of their clerks.

11. On the same day, that is to say, 29th April 1933, the arbitrators had signed as award in Suit No. 421 of 1932 whereby they awarded as follows:

1. That the defendants pay to the plaintiff the sum of Rs. 9750.

2. That the defendant do pay to the plaintiff the costs of the suit and the costs of the arbitration proceedings with interest at 6 per cent per annum from the date of taxation including Rs. 202 being the fees of the arbitrators and their clerks.

3. That the said sum to carry interest at the rate of 6 per cent per annum from the date of the decree to be made herein.

12. Then on 16th May 1933 the attorney for S.C. Dass & Co., received a notice from the Registrar of this Court to the effect that the award of the arbitrators appointed in Suit No. 421 of 1932 under the order dated 1st December 1932 had been filed on 12th May 1932 and that the Court would proceed to pass judgment on that award on 22nd May 1933.

13. It is as an outcome of those arbitration proceedings that the present proceedings were instituted and S.C. Dass & Co. now seek to have the award made against them in Suit No. 421 of 1932 set aside on certain grounds which are set out in paras. 13 and 14 of their petition. The first ground is of a somewhat technical character and the other grounds relate to the conduct of the arbitrators themselves in connexion with the arbitration. The first ground is stated in this way:

'That the said award as filed as aforesaid is invalid as the same was filed after 6th May 1933 being the time extended to file the same under the said order of 28th January 1933.

14. In other words, so far as the first ground is concerned the present applicants say, that the award made in Suit No. 421 of 1932 is an invalid award in that it was not filed in time. They say it ought to have been filed by 6th May 1933, but in fact it was not filed until 12th May 1933. What actually happened was that the award was, as I have stated, signed on 29th April 1933 and on that same day or a day or so later the two arbitrators sent the award to the Registrar, Original Side, of this Court with a covering letter in these terms:

Suit No. 421 of 1932.

Akshoy Kumar Nandi

v.

Sris Chandra Dass

Dear Sir

By an order dated 1st December 1932 we were appointed arbitrators in the above suit and toy a subsequent order directed to file this award on or before 6th May 1933. We are sending an award herewith the following papers and re quest that it may be filed.

Yours faithfully

Enclosures: Sd. S.K. Basu.

Minutes: Sd. A.K. Roy.

Arbitrators.

15. It is not entirely clear on what date that letter was actually sent because the date at the head of it is given in type as 29th April and in manuscript '1st May', which seems to suggest that they intended to send it on the 29th April but in fact put upon it the date '1st May' when they signed the letter and added in manuscript the concluding words of the letter containing the request that the award should be filed. The question of date however is of no importance because there is an endorsement of the Registrar of this Court,'execution department, Inform the attorneys concerned' and that endorsement is dated 1st May 1933.

16. Mr. Isaacs who appeared for the applicants in these proceedings contended that as that award was not actually filed until the 12th May it was invalid by reason of the provisions of para. 15, Schedule 2, Civil P.C.

17. The material part of that paragraph (para. 15) says: 'No award shall be set aside except on one of the following grounds, namely:

(c) The award having been made after the issue of an order by the Court superseding the arbitration and proceeding with the suit or after the expiration of the period allowed by the Court or being otherwise invalid.

18. So, we get this proposition:

No award shall be set aside except on the ground of the award having been made after the expiration of the period allowed by the Court.

19. Mr. Isaacs argued that the effect of that provision in the Code was to require that the award would not only be made but also filed before the expiration of the period allowed by the Court. It is true that by consent of parties it was ordered:

The arbitrators are to make their award and submit the same before this Court together with all the proceedings had and depositions recorded and exhibits filed before them on or before the 28th day of February 1933.

20. As I have already said that date was extended until 6th May 1933. The important point is, as regards that part of the order, that they were to make and submit their award before the stipulated date.

21. Mr. Isaacs then referred to the Rules of this Court, Ch. 23, Rule 1. It says:

Where an award in a suit has been made and the, persons who made have signed it, they shall cause it to be filed in Court together with any depositions and documents which have been taken and proved before them in accordance with Rule 10, Schedule 2 of the Code by forwarding the same (together with the necessary court-fees for filing) in a sealed cover addressed to the Registrar with a letter requesting that the award be filed.

Where the provisions of Rule 10, Schedule 2 to the Code and of Rule 1 have been duly complied with the Registrar shall forthwith file the award and give notice thereof to the parties which notice shall be in form No.(1) informing the parties that the Court will proceed to pass judgment on such award on a date to be fixed in the notice which notice shall not be less than 10 days from the date of the filing of the said award.

No award shall be submitted to the Court otherwise than by being filed in accordance with these Rules.

22. In the present case, the arbitrators did not fully comply with the terms of that Rule as they failed to send with their application to the Registrar the necessary court-fees. No doubt they are responsible for this omission but the award was actually filed on 1st May 1933. Mr. Isaacs, in support of his contention, relied upon a case decided in the Allahabad High Court in Behari Das v. Kalian Das (1886) 8 All 543. There it was held:

Under Section 521, Civil P.C., the rule that no award shall be valid unless 'made' within the period fixed by the Court, is equivalent to a rule that the award must be 'delivered' within that period.

23. Mr. Isaacs has apparently overlooked the fact that case was subsequently expressly dissented from in another case in the same High Court, namely, Asadullah v. Muhammad Nur (1905) 27 All 459. In that case it was held, that where an arbitration takes place the order of a Court is sufficient if the award be made, that is, completed and signed by the

arbitrators, within the period limited under Section 508, Civil P.C., it is not necessary to the validity of such award that it should actually reach the hands of the Court within such period.

24. In the judgment in that case the learned Judges said:

Obviously the word 'made' is used in the untechnical sense, because the award cannot be considered as made unless it is authenticated by the signature of the person who made it. 'Made' means that the mind of the arbitrator has been declared, and such declaration requires an authentication by signature. Section 521 seems to us to be the came section which governs the case before us. It provides that no award shall be set aside except on one of the grounds mentioned in the section, one being that the award was 'made' after the issue by the Court of an order superseding the arbitration. It is manifest that the word 'made' used here does not mean delivery because 'making' and 'delivery' indicate different stages.

25. Apart from any authorities, at the very outset of the argument before me in the present case, I was disposed to hold that the words of para. 15 itself show that paragraph, reproducing as it does Section 521 of the old Code, was only intended to mean that an award might be set aside if it was not made in time. There is nothing in the paragraph to indicate, in my opinion that there is any necessity for the award being submitted or delivered or filed in time in order to maintain its validity. There is moreover a decision of this Court on this matter which is directly to the point. I refer to the case of Debendra Nath Chatterjee v. Sarbamongola Debi (1904) 8 CWN 916 where it was held that an award made and signed but not submitted to the Court within 'the time allowed for delivering the same in Court is valid in law.' The facts of the case were that an award was made on 21st November which was within the period allowed but was not 'delivered' till 26th November. The Court held that it could not be impeached upon that ground. There is another case of this Court which supports that view of the matter in Sewdatrai Narsaria v. Tata Son(SIC) Ltd. 1921 Cal 576 Mr. Isaacs relied strongly upon the provisions of Rule 1, High Court Rules. He pointed out to me in the course of the argument that Rule does not provide any sanction for its enforcement or rather does not impose any disability on the parties to the arbitration, if it is not fully complied with by the arbitrators. In my judgment however in order to ascertain whether an award can be set aside or not, it is necessary to refer not to a Rule of that kind but to the substantive provisions of the Civil Procedure Code.

26. I am, accordingly, clearly of opinion that the award made in connexion with Suit No. 421 of 1932 is not rendered invalid by reason of the fact that it was filed on 24th May inspite of 6th May. That disposes of the first point put forward in support of the present application.

27. Now, the other objections to the award raised by the present applicants relate, as already mentioned, to matters in connexion with the conduct of the arbitration itself. The first of them is stated in these terms:

That the findings of the arbitrators in the said award is based on the findings of the arbitrators in their award in the said Suit No. 1291 of 1932 and the arbitrators arrived at the said findings without deciding the above-mentioned issues settled in this suit (that is to say, Suit No. 421 of 1932) or in the said Suit No. 1291 of 1932.

28. Regarding that objection Mr. Isaacs has stated that although all the matters of account in dispute between the parties had been settled in the arbitration held in connexion with Suit No. 1291 of 1932, nevertheless the arbitrators before proceeding to make an award in the arbitration in Suit No. 421 of 1932 ought to have set out in their award the issues settled by them in the other arbitration with categorical answers to each of those issues. We are not concerned, upon this, application with anything in Suit No. 1291 of 1932 or the award made in that connexion. That is not a matter which I have before me in any shape or form. All that need be said upon this point is that admittedly the parties themselves agreed that the proceedings in the Suit No. 1291 of 1932 should be used to determine the questions which had to be determined in Suit No. 421 of 1932. Therefore, it cannot be said that the arbitrators acted improperly or misconducted themselves because they acted upon the basis that the one arbitration determined the other. It is obvious that in Suit No. 1291 of 1932 the arbitrators found that S.C. Das & Co., owed the plaintiff the sum of Rs. 9,750/-(nine thousand seven hundred and fifty rupees). If their award in that arbitration did not, in fact, direct that sum should be paid by S.C. Das & Co. to Akhoy Kumar Nandy, then it necessarily followed that in the other award they should make an order directing that sum should be paid by S.C. Das & Co. to Akhoy Kumar Nandy. By the time the arbitration with which we are now concerned came to be determined, there was nothing left to be done excepting the making of an order that the sum of Rs. 9,750/-should be paid. It cannot therefore be contended that the arbitrators, in connexion with the award now under discussion, acted improperly in not setting out the issues which they may or may not have decided one by one in the previous arbitration.

29. The next objection taken by Mr. Isaacs on behalf of the present applicant is of a rather more serious nature. It is in these terms:

'That the arbitrators on 28th April 1933 before making the award improperly obtained an undertaking from the plaintiffs' attorney Mr. R.C. Deb that the plaintiff would pay the fees due to the arbitrators and their clerks even if the plaintiff did not get a decree in his favour in this suit, (that is to say, Suit No. 421 of 1932).

30. The petition then proceeds:

That your petitioner believes that the arbitrators were biased in favour of the plaintiff on account of the said undertaking.

31. What took place appears to be accurately stated in an affidavit made on behalf of the respondent to the present application, that is to say, the plaintiff, which affidavit was made by one Sham Chand Nandy, who was described as the grandson of the plaintiff and he was apparently looking after the suit on his behalf. In para. 9, the deponent says:

I deny that the arbitrators before making the award obtained any undertaking from Mr. R.C. Deb improperly or otherwise as alleged or at all. The true facts will appear from extract of the minutes of the meeting held in Suit No. 1219 of 1932 on 28th April 1933 which is as follows:

'The defendant has paid the sum of Rs. 1000 on account of the fees of arbitrators and their clerks.

The plaintiff also gave two cheques for Rs. 500 each on the same account, but Mr. Das states that till no he has not been able to arrange for their encashment.

There have been altogether thirty sittings, and a sum of Rs. 4,950 is payable for the balance of such fees. The award must be filed by tomorrow if it is to be in time. The award should in the first instance, pay the fees of the arbitration, but Mr. Banerjee states that his client is not in a position to pay anything or for encashment of those two cheques.

Mr. Deb on behalf of his client offers to pay the balance of the said fees and asked for direction that when paid his client will be entitled to add the same as well as the amount previously paid to his claim which may be allowed by the arbitrators. If however the arbitrators do not allow my client's claim suitable directions might be given to set off these payments against his liabilities. If the arbitrators are of opinion that a separate award should be given in the other suit suitable directions might be given accordingly.

Mr. Banerjee states that these directions are unnecessary.

Mr. Deb states that suitable directions providing protecting interest of his client should be given.

The arbitrators: The matter will be considered in our award.

Mr. Banerji did not take any exception to the offer made by Mr. Deb.

32. Now, the first thing that strikes one in connexion with this point is that as I have previously stated, the method of deciding the dispute between the parties was inordinately expensive. Some idea of the total cost of this arbitration is to be gathered from the amount of the fees claimed by the arbitrators. However, it would appear that the arbitrators were entitled to the fees they were asking for and I am bound to say that the arbitrators were entitled to payment of their fees in connexion with the award they made. The matter would of course have been beyond any criticizm if, in fact, each party had paid half the costs of the arbitration.

33. When it was found that Mr. Das was not in a position to pay his share it would have been wiser on the part of the arbitrators if they had proceeded to complete their award and then retain it until such time as their fees were paid by the party in whose favour it was in fact made.

34. Mr. Isaacs sought to bring the present case within the four corners of an old case decided in England in the year 1734 the case of Shephard v. Brand, 2 Barnard 463. In that case, arbitrators to whom disputes between A and B had been referred, before making their award, demanded three guineas from each of the parties in respect of their charges and expenses. A paid the money but B did not. On a motion to set aside the award it was held that where arbitrators take money from one of the parties singly, whether for charges or anything else, before making their award, that is sufficient cause to set aside the award. No doubt the principle there enunciated is sound and correct and it is therefore generally speaking undesirable not to say improper for arbitrators to take money from one side only before the award is actually made. The decision in the case just referred to was made upon the footing that the arbitrators were or, at any rate, might have been biased in favour of the party who in fact, had paid their charges. In a much later case, In re Kenworthy and the Queen Insurance Co. (1893) 9 TLR 181, however the Court refused to set aside an award on the ground that an undertaking had been given by one side to take up the award in any event. In that case, disputes arising out of a policy of insurance were referred to two arbitrators and an umpire under an arbitration clause in the policy at the end of the hearing met before the making of the award. The arbitrator for the company asked the solicitor for the company whether the company would undertake to take up the award in any event. The company gave this undertaking. On a motion to set aside the award on the ground that the undertaking to take up the award amounted practically to a payment of money by the company to the arbitrator, it was held, distinguishing 2 Barnard 463(5) (supra) that the arbitrators had not been guilty of such misconduct as would require that the award should be set aside.

35. All the same however, in my judgment, the principles underlying the decision in 2 Barnard 463(5) still hold good and it is imperative that arbitrators should always scrupulously avoid any course of action which even remotely bears the complexion of their having put themselves into a position where it might be said against them that they had received a pecuniary inducement which might have had some effect on their determination of the matters submitted to their adjudication. In the present instance. I do not think it can be rightly contended that the circumstances attending the payment of the fees of the arbitrators brings the case between the ambit of the decision in 2 Barnard 463(5) (supra). I should be very reluctant to hold that the arbitrators in the present case were influenced in their decision by the manner in which their fees came into their hands. It is true that the whole of the sum of Rs. 2,000 was paid in the first instance by Akshoy Kumar Nandy but half that sum was provided by him by way of accommodating Mr. Das of the plaintiff firm S.C. Das & Co., when Mr. Das found himself in the position of not been able to arrange for the two cheques for Rs. 500 each to be met on presentation, and what was done by Mr. Deb, the solicitor acting on behalf of the defendant was not objected to by Mr. Banerjee, the solicitor for the plaintiff firm. The whole matter of the payment of the arbitrators' fees was one of mutual arrangement between the contending parties as appears from the minutes the correctness of which has not been disputed. Moreover from the very outset of his argument Mr. Isaacs partly stated he was not in a position to substantiate nor did he intend even to put forward the allegation contained in para. 14(3) of the petition of S.C. Das & Co., on which the present proceedings were founded. That attitude on the part of the learned Counsel appearing for S.C. Das & Co., puts the present case outside the mischief aimed at in 2 Barnard 463(5). Having said that however I feel bound to emphasise that the arbitrators would have been wiser had they avoided altogether a method of collecting their fees which laid them open to imputations of corruption-or at any rate prejudice-however unfounded such imputations might prove to be upon close examination.

36. The last point taken by Mr. Isaacs on behalf of the applicant is that set forth in para. 14(4) of the petition. It is stated in these terms:

That the plaintiff fraudulently withheld the inspection to the defendant of the Khatian or ledger books for the years 1923 and 1924 although the same were disclosed by the plaintiff in letter dated 24th June 1932 written by the plaintiff's solicitors to the defendant's solicitors and tendered and marked Ex. 10 in the arbitration proceedings in Suit No. 1291 of 1932. If the said ledger books were produced by the plaintiff the same would have disclosed the real state of affairs regarding the items on the debit side of the statement of account filed with the written statement between 28th April 1923 and 14th June 1923 and also between 8th March 1924 and 20th October 1924 involving large sums of money advanced by the defendant, to the plaintiff and the arbitrators could have come to the true findings in their award. (5) The arbitrators should have directed the plaintiff to produce the said ledger books but they did not do so.

37. Once more I would point out that what we are here concerned with is the award made in the arbitration in Suit No. 421 of 1932. It is therefore not open to the present applicants to hark back, as it were, to anything that might have occurred in the course of the arbitration proceedings in Suit No. 1291 of 1932. In any event however Mr. Isaacs was not able to say that in fact any application was made to the arbitrators for the production of the books the absence of which if they were absent is not complained of. If in fact Counsel or whoever was appearing on behalf of S.C. Das & Co. had made an application for an order that the other side should be directed to produce these books and that order had been refused then perhaps there might have been something to be said of that position. As far as I can see however there is no evidence whatever to show that any attempt was made to compel the other side to disclose these books. On this point Shamchahd Nandi in the affidavit made by him on behalf of Akshoy Kumar Nandi deposes as follows:

38. Para. 11:

I deny that the plaintiff withheld inspection of ledger books of the years 1923 or 1924 fraudulently or otherwise. The said ledgers were not disclosed in the affidavits of document of the plaintiff. The said books were lost and could not be found. The plaintiff disclosed and gave inspection of the Jabda books (cash books) for the years 1923 and 1924. The entries in the ledger are made up from the Jabda. I deny that the said ledger books if produced would have disclosed anything which could not be found in the Jabda books or that would have disclosed that any sum of money were ever advanced by the defendant to the plaintiff or they would have disclosed the real state of the items on the debit side of the statement of account between 28th April 1923 and 14th June 1923 and between 8th March 1924 and 20th October 1924. The plaintiff disclosed all books and documents in his possession and power relating to the matters in dispute in the two suits. The said ledgers for 1923-1924 were referred to by mistake in the letter dated 24th June 1924. The said letter was written before any search for the books was made by me under my instructions. A search for other books was made by me before the list of documents disclosed in the affidavit and I found that they were missing having been destroyed by white ants long ago or lost.

39. In para. 12 he said:

Before the evidence began Mr. Banerji wanted inspection of the ledger books of 1923 and 1924. He was then told that those books were lost and could not be found. Thereupon Mr. Banerji proceeded with the reference. No complaint was made to the arbitrators that the said books had been fraudulently or at all suppressed or any direction was asked for on proper materials for the production of the said books. The arbitrators could not have given any direction for the production of the said ledgers in view of the statements that they were lost and could not be found.

40. That account of what transpired before the arbitrators has not been seriously challenged. All that Mr. Das in his affidavit in reply says about it so far as is really material is this:

With reference to para. 12 of the said affidavit (i.e. the affidavit of Sham Chand Nandi) I state that the arbitrators did not direct the plaintiff to produce the ledger book for the years 1923 and 1924 but allowed Mr. P.N. Banerji to cross-examine the plaintiff regarding the said letter as will appear from the following extract from the deposition of the plaintiff before the arbitrators.

41. And the questions are set out.

42. Nowhere does he say that a formal application was made to the arbitrators and that such application was refused. There is therefore nothing in this last point made by Mr. Isaacs on behalf of the applicants which would justify me in interfering with the award of the arbitrators. As previously stated, the second, third and fourth points set up by the applicants were in effect charge of misconduct against the arbitrators, misconduct of course in the technical sense. Those charges have not been made out, and subject to the observations I have thought fit to make with regard to the method in which the fees were paid it would seem so far as one can Judge upon the materials now before me that the arbitrators conducted the arbitration in a satisfactory manner. This application must accordingly be dismissed with costs.


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