WEERASOORIYA, J.—Matale AsgiriPallesiyapattu Co-op. Society v. Perera 473
Present: Weerasooriya, J., and K. D. de Silva, J.MATALE ASGIRI PALLESIYAPATTU CO-OPERATIVE SOCIETY,Appellant, and S. K. PERERA, RespondentS. C. 464—.D. C. Matale, X 460
Co-operative Societies Ordinance—Section 45 (2)—Reference to arbitration—Must bothparties to dispute consent ?
The reference of a dispute to arbitration under section 43 (2) of theCo-opeTa-tive Societies Ordinance need not be made jointly by the parties to the dispute.
/APPEAL from an order of the District Court, Matale.
T. B. Diseanayake, withN. R. M. DaluwaMe, for the petitioner-appellant.No appearance for the respondent.
January 23, 1959. Weerasooriya, J.—
In this case a dispute which arose between the petitioner-appellant, aCo-operative Society, and the respondent was referred to arbitration undersection 45 (2) of the Co-operative Societies Ordinance. An award madeby the arbitrator in favour of the petitioner was thereafter sought to beenforced under the provisions of rule 38 (13) of the rules made undersection 46 of the Ordinance. The respondent filed a number ofobjections against the application to enforce the award, of which the onlyobjections of any substance are numbers 7 and 8. Objection No. 7 isthat the award is bad inasmuch as the reference to arbitration was notmade jointly by the plaintiff-society and the debtor-defendant. Objec-tion No. 8 is that rule 38 (13) under which the award was sought to be
1 (1824) 2 Bing. 258.
Charles v. Juse Appu
enforced is ultra vires and the society cannot therefore maintain the appli-cation. On the authority of the case of S. M. Don Nereus v. Halpe KatanaStores Society Ltd.1, which was cited to the District Judge, he upheld boththese objections and dismissed with costs the application to enforcethe award. But that case can no longer be regarded as authority forupholding the two objections referred to in view of the more recent de-cision of a majority of a bench of five Judges of this Court in The Pinikaha-na Kahaduwa Co-operative Society Ltd.v. P. M. Herath2 the effect of whichdecision is that rule 38 (13) is not ultra vires and that the reference of adispute to arbitration under section 45 (1) of the Ordinance need not bemade jointly by the parties to the dispute.
The objections taken by the respondent must, therefore, be over-ruled
and the proceedings will be remitted to the Court below so that theaward may be enforced as a decree of the Court. The petitioner-appel-lant will be entitled to the costs of appeal and also the costs of theinquiry into the objections taken by the respondent to the enforcementof the award.
de Silva, J.—I agree.
MATALE ASGIRI PALLESIYAPATTU COOPERATIVE SOCIETY, Appellant, and S. K. PERERA,