008-NLR-NLR-V-22-KONAR-v.-GOVINDAN.pdf
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[In Revision.]
Present: Loos A.J.
KONAR v. GO VEND AN.
C. R. Colombo, 71,836.
Arbitrator refusing to act at the outset—Motion by Court to fix case
for trial—Appointment of another'person as arbitrator by Court;
Civil Procedure Code, ss. 676 and 679.
By agreement of parties the matter in dispute in this case wasreferred to the arbitration of A. A refused to act as arbitratorat the outset, and the parties asked that the case be fixed.for trial.The Commissioner without the consent of the parties referred thematter to the arbitration of B.
Held, that the order was irregular. Section 679 of the CivilProcedure Code applies only in cases where, in .fact, an arbitratorhas assumed the duties of arbitrator and has subsequently died orrefused to act or become incapable of acting, and not to a casewhere the arbitrator, nominated, has at the outset refused to act.
rpflE facts appear from the judgment.
Nagalingam, in support.—In appointing a new arbitrator againstthe wishes of the defendant, the learned Commissioner purportsto act under section 679, Civil Procedure Code. This section onlyapplies where the arbitrator has once begun to act and then refuses,and not to a case where the arbitrator refuses to act from the veryoutset. See Pugardin Ravutan v. Modinsa Ravulan1 and RepinBehari Chowdbhoy v. Annoda Prosad Mullick.2 The same principleis to be found in the English law. See Crawshaw v. Collins2
March 16, 1920. Loos A.J.—
In this action the parties agreed to refer the matter in disputeto the arbitration of Mr. Advocate Retnam and, when a referenoewas accordingly made to him, Mr. Retnam appears to have beenunwilling to act as arbitrator, having, it is stated, appeared againstone of the parties to the action. The parties then informed theCourt that Mr. Retnam refused to act, and apparently asked thatthe case be fixed for trial. The learned Commissioner has refusedto fix the case for trial, as the parties had already agreed to refer
1 /. L. R. 6 Mad. 414.* I. L. R. IS Gal. 324.
3 3 Swanst. 90.
1920.
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1920.
Loos A.J.
Konar v.^.Oovindan
the matter to arbitration, and, purporting to aftt under section 679of the Civil Procedure Code^ he appointed Mr. J. Obeysekera,Advocate, arbitrator, apparently without any reference to or theconsent of, the parties.
The defendant has brought the order up in revision, and asksthat the order be set aside, and the' case remitted to triaL by theCourt. Section 679 of the Civil Procedure Code would appear toapply only in cases where; in fact, an arbitrator has assumed the •duties of arbitrator and has subsequently died or refused to act orbecomes incapable of acting, and not to a case where the arbitrator,nominated, has at the outset refused to act So that the learnedCommissioner was not justified in making the appointment undersection 679. of the Code in this case. Section 676 of the Codeprovides, inter alia, that the Court shall nominate an arbitrator,if the parties cannot agree with regard to the person to be nominated,or if the person nominated refuses to accept the arbitration, butonly in the event of the parties desiring the Court to make thenomination. In this-case, so far'from the parties desiring theCourt to make the nomination, the parties have declined to acceptthe nomination made by the Court and have asked that the casebe fixed for trial. I think the order of the Commissioner must beset aside, and the case remitted for trial in due course by the Court.
Set aside.
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