Present: Hutchinson CJ. and Grenier J.
CRONING v. THE ATTORNEY-GENERAL.171—D. C. Badulla, 2,420.
Ordinance No. 1,5 of 1866,8* 8—Action on contract—Provision in contractfor reference to arbitration—Application by defendant to refermatters in dispute to arbitration—Application made after takingtime to file answer.
Plaintiff sued defendant on a contract whereby it. was agreed,inter alia, that any matter in dispute should be referred to thearbitration of the Director of Public Works. The defendantappeared and obtained time to file answer on three occasions, andon the fourth date, withont- filing answer, applied to have thematter referred to arbitration.
Held, over-ruling plaintiffs objection, that the application wasnot too late.
Under section 8 of Ordinance No. 15 of 1866 the applicationneed hot necessarily be made before taking any steps in theproceedings.
*JpHE facts appear in the judgment of Hutchinson C. J.
De Sampqyo, Af.C., for appellant.
Van Langenberg, A. S.-G.> for respondent.
Cur. qcJv. vw/r.
December 16, 1910. Hutchinson C.J.—
~ This is an appeal by the plaintiff against an order made undersection 8 of the Arbitration Ordinance, No. 15 of 1866, stayingproceedings in the action and referring the matters in dispute to thearbitration of the Director of Public Works.
The plaintiff sues on a contract made between him and theProvincial Engineer of Uva, on behalf of the Government, for theconstruction of a road by him. He claims (I) the balance of moneydue to him for payment of work done ; (2) to recover the depositwhich he made as security for his due fulfilment of the contract ;(3) money retained by the Provincial Engineer in accordance with aclause in the specification which forms part of the contract ; (4)damages for wrongful detention of money due to him ; (5> damagesfor the wrongful termination of the contract.
The contract is on a printed form, and is headed 44 Contract C,dated May 21, 1908,” and refers to1.a specification, plans, anddrawings signed by both parties. The specification is also on aprinted form headed 44 Contract No. C,” signed by both parties onthe same date. Clause 25|of it provides that “ in case any dispute,
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question, or difference should arise as to the value of any particularwork not clearly stated in the bill of quantities or schedules, or withregard to any other matter of account, or as to the proper completionof the work, or the payment therefor, or the construction to be put
any part of the plans or specification, or any other question whichcan or may arise as to the execution of this contract, such question,construction, or dispute shall be decided by the Director of PublicWorks, whose decision and award shall be final and binding upon allparties, and from which there can be no appeal.
The defendant on April 27, May 25, and June 15 obtained time tofile answer, and then on June 27, without filing answer, applied tohave the matter referred to the arbitration of the Director of PublicWorks and filed an affidavit by the defendant setting out clause 25of the specification, and alleging that all the causes of action arequestions covered by that clause, and that there is no sufficientreason why they should not be referred and that he was at the timeof the bringing of the action, and still is, ready and willing to concurin all acts necessary and proper for causing the said matter to bedecided by arbitration.
Mr. de Sampayo contended that the specification is not part ofthe contract ; that clause 25 of the specification is not an agreementto refer to arbitration within the meaning of section 8 of theOrdinance; and that clause 25 does not cover these causes of action.
think that none of these contentions is tenable. He also urgedthat if the Court had power to make the order, it had a discretion,and exercised it wrongly, and that the defendant’s application wasmade so late that it ought to have been refused. The plaintiff agreedthat the Director of Public Works should be the person to decide onall questions to arise as to the execution of the contract, and that thedecision and award should be final and binding on all parties, andhe cannot now, without any evidence to show that the Director isnot a suitable person, be heard to say that he is not so. And Ithink that there is nothing in the objection that the defendant’sapplication was too late ; the English decisions on similar objectionswere given on the English Act, which contains the words which areomitted from our Ordinance : “ at any time after appearance andbefore delivering any pleadings or taking any other steps in theproceedings.”
The appeal should be dismissed with costs.
Grenier J.—1 agree.
CRONING v. THE ATTONEY GENERAL