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Rani Shasimukhi Debi and ors. Vs. Parbaty Sunkar Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.879
AppellantRani Shasimukhi Debi and ors.
RespondentParbaty Sunkar Roy Chowdhury and ors.
Excerpt:
civil procedure code (act v of 1908), schedule ii, para. 18 - arbitration, reference to--stay of suit--refusal of arbitrator to act--stay order, whether can be set aside--procedure--minor, whether bound by agreement executed by predecessor. - .....to by all the parties subsequent to the date of the achalnama. thirdly, if there was such an agreement subsequent to the date of the achalnama, was that agreement before or subsequent to the institution of the present suit. on the question as to whether or not the minor would be bound, it seems to me that the minor would be bound by any agreement entered into by his predecessor-in-title and the question, therefore, depends upon the issue to which i have referred, namely, whether or not the agreement to pay remuneration must be taken to have been implied in the original terms of the achalnama or whether such agreement was subsequently entered into and if subsequently entered into, was it binding upon the minor. it is necessary to consider whether the alleged agreement to pay.....
Judgment:

John Woodroffe, J.

1. In my opinion Section 18, Schedule II, of the Civil Procedure Code, is not applicable to the circumstances of the present case. The question which is here raised is one which should be determined in the suit itself on an issue whether the arbitration agreement arid proceedings had thereunder constitute a bar to the prosecution of the suit.

2. The reply by the respondents is that it is not so barred, because the arbitration proceedings have practically come to an end and cannot any further be carried out. It is said that they cannot be carried out because the arbitrator demands remuneration for his work and that some of the parties refused to pay such remuneration. To determine this question several issues have to be considered. The first is whether the Achalnama contained an implied agreement to pay such remuneration to the arbitrator. If that question is answered in the negative, the next question that arises is, was there or was there not an agreement to pay such remuneration consented to by all the parties subsequent to the date of the Achalnama. Thirdly, if there was such an agreement subsequent to the date of the Achalnama, was that agreement before or subsequent to the institution of the present suit. On the question as to whether or not the minor would be bound, it seems to me that the minor would be bound by any agreement entered into by his predecessor-in-title and the question, therefore, depends upon the issue to which I have referred, namely, whether or not the agreement to pay remuneration must be taken to have been implied in the original terms of the Achalnama or whether such agreement was subsequently entered into and if subsequently entered into, was it binding upon the minor. It is necessary to consider whether the alleged agreement to pay remuneration was subsequent to the suit, because the question may arise as to whether an agreement, that was come to after the institution of the suit can be a bar to its continuance.

3. In the result, therefore, we must set aside the order of the Subordinate Judge and decree this appeal.

4. Under the circumstances of the case whilst assessing the hearing fee at five gold mohurs, we direct that the coats of this appeal do abide the result of the determination of the issue in the suit to which I have referred. If it be held that the arbitration agreement is a bar to the suit, then the appellants will be entitled to the costs of this appeal. Otherwise the respondents who claim that the suit can go on will be entitled.

5. In conclusion we may observe that this is a matter in which the parties will be well advised if they come to some mutual arrangement instead of further litigating it.

Shamsul Huda, J.

6. I agree.


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