075-NLR-NLR-V-28-ASIA-UMMA-v.-ABDULLA-et-al.pdf
( S91 )
Present:, Maartenaz A.J.
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ASIA UMMA v. ABBtiLLA et 'al.
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188-^C. R. Pnttaldm, 11,002
Arbitration—Action against two defendants—Reference signea by one—Illegality—Estoppel.
Where an action, in 4vhich tWo’ defendants were jointly sued, "Wasreferred to arbitration on a motion signed by the plaintiff – andfirst defendant,—
Held, that the arbitration proceedings' were invalid; although theaward was against the first defendant only.
A
PPEAL from an order of the Commissioner of Requests,Puttalam. Plaintiff sued the defendants for the recovery
of certain jewellery, or in the alternative a sum of Rs. 177. Thedefendants filed answer, denying liability. By a' motion signed bythe plaintiff and the first defendant the dispute was referred to theArbitration of Mr. Strong' who made: his award on May 7, 1926.Under the award the plaintiff whs entitled to judgment againsttile first defendant only. The defendants moved'’to set aside theaward on the ground that the reference to arbitration was notsigned by the second defendant. The Commissioner of Requestsheld against them. .
' H. V. Perera, for defendants, appellants.
' K. S. Atyar, for plaintiff, respondent.
October 28, 1926. Maartensz A.J.—
The defendarits-appellants were' sued by' the plaintiff for therecovery of two pieces of jewellery, or in the alternative their valueRs. 177. The defendants denied liability, and by a motion datedFebruary 26, 1926, signed by the plaintiff and the first defendantthe dispute was referred to the arbitration of Mr. Strong.
' Mr. Strong made his award on> May 7, 1926. Under the awardthe plaintiff was entitled • to judgment against first defendant only.
. The defendants moved to set aside the award on the groundthat the motion agreeing to refer the' .matter in dispute to thearbitration of Mr. Strong had not been signed by the seconddefendant, and appeal from the Commissioner’s order against them.
1 entirely agree with the learned Commissioner’s observationsregarding the character of’ the application, blit I im unable to agreeWith' his reasons for rejecting it. : He holds that his predecessorappointed first defendant second defendant’s agent by grantingthe first defendant’s application on behalf .of himself and seconddefendant for time to file answer.
( 392 )
irn.
Maabkbrsz
A.J.
Asia Vmmav, Abdulla
The terms of sub-section (e) of section 25 of the Civil Procedure.Code, 1889, preclude an inference of that nature being drawn fromsuch an entry in the record. According to the terms of the sectionthere must be an application and cause shown for an order undersub-section (e) and the application must be specially allowed.
The respondent-, however, contends that the order can be sup-ported on other grounds, namely, (1) that the defendants by takingpart in the proceedings are estopped from attacking the validity ofthe reference, and (2) that the award being against first defendantonly the objection that second defendant did not sign the motiondoes not arise. I regret that I do not see my way to accept eitherof these reasons.
In the case of Satvrjit Pertap Bahadoor Sahi v. Dulhin GulakKaor 1 cited in support of the first ground it was held that the defen-dant had tacitly ratified his agent’s application for a reference toarbitration. The agent’s authority as a matter of fact did not extendto the making of such an application. It does not proceed on theground of estoppel but on the ground of agency, and does notapply in this case as first defendant was not second defendant’sagent.
In the Ceylon case of Pitche Tamtby et al v. Fernando et al.2 WoodRenton J. said that “it is not necessary for the purposes of thepresent case to decide—and I do not decide—that there may not becircumstances in which a party to an arbitration who has eitherduly authorized his proctor to apply for an order of reference, orhas himself made in person and signed such an application, and has■ thereafter appeared before the arbitrator without objection, takenpart in arbitration proceedings, and raised no objection to theaward in the court of first instance, may not fairly be held to beestopped from challenging the award for the first time in .theAppeal Court, on the ground that the application for an order ofreference had not been signed by all the parties to the case, providedthat what he is decreed to do by the award is something that can befulfilled in favour of the parties who have, irrespective of those whohave not signed the application for a reference.’’ The ground onwhich he said the plea of estoppel can be raised does not arise inthis case, as the objection was taken in the court of trial. At theend of his judgment Wood Renton J. observed—
“ Whether the doctrine of estoppel can ever be applied so as tocure irregularities in arbitration proceedings is a questionof judicial opinion both in India and in Ceylon, and which mayin regard to which there has been considerable differencesome day have to be definitely decided.’’
That was in 1910, and the point has not been decided yet.
» (1891) 24 Cal. 469.2 (1910) 14 N. L. R. 73.
( 893 )
On the contrary, in the case o£ Arachchi Appti vl Mohotti Appu 1 *Bertram C.J. followed the decision in the case of Pitche Tamby et al.v. Fernando et al. (supra), remarking that if the matter had been resintegra he would have followed the principle of Andrews v. EUis,*where it was held that the parties to a cause, having consented thata case should be tried without a Jury by a Judge who only hadjurisdiction so to toy it by the written consent of the parties, oneof those parties could not be heard, after verbally consenting andafter taking part in the trial to insist upon the statutory require-ment of a written consent.
The plea of estoppel might have been considered in either of thecases I have referred to, but it was not. I do not see how the pleacould now be raised in view of the cases I have referred to.
The second ground is based on a quotation in Sarkar fromthe case of Bishoka Dasia et a/. t>. Anunto halt Pant et a?.3 Inthat case A sued B and two of his tenants for possession ofcertain lands, and the dispute between A and B was referred toarbitration; it was held that the award not affecting the rightsof the tenants should be enforced between A and B.. Apparentlythe dispute between A and B was distinct from the dispute betweenA and the tenants, and so far as the dispute between A and B wasconcerned all the parties had signed the reference to arbitration.That case is not an authority applicable to this case, where rightly orwrongly the defendants were sued jointly and the issues referred toarbitration were issues arising between plaintiff and both defendants.The fact that an award was made against first defendant only makes* no difference, for plaintiff, if he was dissatisfied with it, could haveobjected to the award on the ground that second defendant hadnot signed the reference. This was the precise reason why theobjection was upheld in the case of Pitche Tamby et al v, Fernandoet al. (supra). The plaintiffs there had not signed the referencewhich the defendants had signed, and it was held, that they couldnot take advantage of an award which they might have objectedto if it was adverse to them.
I accordingly allow the appeal, but without costs, and remit thecase for trial on the issues in due course. The costs of the proceed-ings already had and the costs of the subsequent proceedings willbe in the discretion of the Commissioner.
Appeal allowed.
(1922) 23 N. L. B. 500
» (1879) 4 Cal. L. R. 65.
Maabsbnss
AJ.
Asia Utnmav. Abdulla
* 25 Jj* J. Q. B, 1.