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UKKU NAIDE v. SUREN DRA.
C. B., Kurunegala, 5,203.
Arbitration—Extension of time for making award—Civil Procedure Code,
ss. 683 and 691—Conduct of parties—Estoppel.
Where parties consent to refer their disputes to an arbitrator, theyought to be bound by the award, unless there are any reasons which,according to the Civil Procedure Code, justify the award being remittedfor correction or set aside altogether.
When the time for making the award has expired, the Court mayenlarge the time on cause shown.
Where an arbitrator, not having filed his award within the due date,applied in the presence of the parties for further time to make hisaward, and no objection was made to such application, so that thearbitrator filed his award and the case was allowed to stand over for theparties to show cause, if any, against the award, and the defendant’sonly objection to the award was that it was not filed within the periodoriginally fixed by the Court,—
Held, that the defendant was estopped by his conduct from raisingsuch an objection.
HE facts pertinent to the present appeal in this case are
these. On the 8th March, 1898, the parties referred allmatters in dispute between them in an action pending in Courtto the sole arbitration of one Manapage Korala. The time fixedfor filing the award was the 19th of the following month, April.On that day, the parties appeared before the Commissioner andthe case was ordered to be “ laid over ” for the 13th May, 1898,in consequence of the arbitrator not having sent in his award, andit was noted in the journal entry of that date that attention ofthe arbitrator should be called to the delay. On the 13th May theparties came to Court, but the Commissioner was absent on dutyat Puttalam. According to a minute made by the Secretary of theCourt in the absence of the Commissioner, it appeared that thearbitrator also w’as present and asked for further time to makehis award, naming the 27th of May. The case was “ laid over ”for the 20th May. On that day no one appeared in Court, andthe Commissioner ordered,' the case to be “ laid over ” for the27th May, 1898.
On the 27th May, 1898, according to the journal entry, the partiesappeared in Court, the awrard was filed, and the case “ laid overfor the parties to show cause, if any, against the award. On the13th June, 1898, the parties appeared in Court, and according to theproceedings of that day the defendants only had cause to show
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against the award, and their one reason was that it was not filedwithin the period originally fixed by the Court, i.e., the 19thApril. The objection was not discussed on that day. TheCommissioner, after referring to the formal entries above-mentioned, intimated that he would call on the arbitrator toexplain the delay in making the award and why on the 13thMay he applied for further time. The matter was postponedto the 23rd June following, on which day thq parties and thearbitrator appeared. .The arbitrator accounted for the delay byhis illness and inability to report his illness to the Court.
The defendants by their proctor again stated that they had nocause to show against the award except that it was not filed on theday fixed.
The Commissioner made the award final, and entered judgmentin terms thereof.
The first defendant appealed against this order.
Bawa, for appellant.
Domhorst, for respondent.
Cur. adi>. vult.
12th January, 1899. Withers, J.—
This was a reference to an arbitrator under the Civil ProcedureCode, and the sections pertinent to the case are the 683rd and 691st.The 683rd section enacts that—
“ If from the want of the necessary evidence or information, or“ from any other cause, the arbitrators cannot complete the“ award within the period specified in the order, the Court may,“ if it think fit, either grant a further time, and from time to time“ enlarge the period for the delivery of the award, or make an“ order superseding the arbitration, and in such case shall“ proceed with the action.”
The 691st section provides, “ no award should be valid unlessmade within the period allowed by the Court.”
In my opinion the defendants are estopped by their conductfrom raising this objection. When they had the opportunity,they made no protest against the application of the arbitrator forfurther time. The Court has eventually allowed that application,so that the award has been filed within the enlarged time.
In the case of Punchirala v. Sudehamy (I N. L. R. 38), Mr.Lawtrie, A.C.J., and Mr. Browne, A.J., decided that the 683rdsection of our Code permitted the Court to enlarge the time oncause shown when the time for making the award had expired.In the case of Warner & Powed’s Arbitration (L. R. 3 Equity,261). the parties entered into an agreement for the submission of
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1899.their disputes to arbitration. This was in June, 1861. The
January IS.reference was made a rule of Court on the 18th January, 1866.
WmiEM, J. The deed provided that the award should be made within threecalendar months next after the third of the arbitrators for thetime should have been named. But the instrument contained nopower to enlarge the time for making the award under it. Anaward was eventually made after the time limited by the deed,and for that reason one of the parties refused to be bound by theaward. There was a mistake in the award admittedly of easycorrection, and the parties who wished the order to stand askedthe Court to enlarge the time for making the award, so that itmight be remitted to the arbitrators to correct the mistake.
The Vice-Chancellor, Sir John Steuart, had no doubt that hecould enlarge the time and granted the relief asked for, becausein his opinion the 39th section of the Act 3 and 4, William TV.,chapter 42, embraced the Superior Courts of Equity, and by thatsection it was enacted that “ the Court or any judge thereof may” from time to time enlarge the term for any such arbitrator“ making the award.” That case is not unlike the present one.
The only difficulty I feel is with reference to the journal entryof the 27th May, in which appears the words “ Award filed.”
This journal entry was not apparently signed by the Commis-sioner, and I consider the entry was merely a record of the factthat the arbitrator had produced his report and the connected docu-ments on the day to which he had asked the time to be extended.When parties consent to refer their disputes to an_arbitrator theyought to be bound by the award, unless there are any reasonswhich, according to the Code, justify the award being remitted forcorrection or set aside altogether. Not that I impute any blame tothe defendants’ proctor in this case for taking the legal objectionthat the award was not valid.
Giving my best judgement to the case, I think the award oughtto be sustained.