069-NLR-NLR-V-47-PARIKKIYA-et-al-Appellants-and-KADIRAVEL-Respondent.pdf
Parikldya v. JCadiravel.
201
1946
Present: de Silva J.PARIKKIYA et al., Appellants, and KADIRAVEL., Respondent.
330—C. R. Mcitale, 7,271.
Arbitration—Application to set aside award—Requirement of petition—Postponement of inquiry by arbitrator—Misconduct—Civil ProcedureCode, as. 687, 691.
11—a 18702 (8/68)
202
DE SILVA J.—Parikkiya v. Kadi ravel.
Where the Court, in calling for objections to an award filed by anarbitrator, appeared to have indicated that the procedure by petitionwas not obligatory and that objections to the award would be sufficient—
'Held, that, in the circumstances, the Court might have treated theobjections filed by a party as a petition under section 687 of the CivilProcedure Code.
Where an arbitrator allowed, for good reasons, a postponement of hisinquiry—
Held, that there was no misconduct on the part of the arbitrator withinthe meaning of section 691 of the Civil Procedure Code.
^ PPEALi from an order of the Commissioner of Requests, Matale.
N.E. Weerasooria, K.C. (with him S. R. Wijayatilake), for thedefendants, appellants.
H. W. Jayevoardene for the plaintiff, respondent.
February 21, 1946. db Silva J.—
The matters in dispute in this case were referred by the parties to thearbitration of Mr. Sallay. 'Mr. Sallay after inquiring into the mattermade his award and it was filed in Court on March 3,1945. Section 685of the Civil Procedure Code provides that after the award has beenfiled notice of the filing Bhall be given to the parties. Instead of orderingthis notice the learned Commissioner had on this day minuted as follows :“ Award received. Objections if any on March 27, 1945.” On the 27th,apparently no objections were filed and the Court ordered notice on theparties for April 19, 1945. On the 16th April Mr. Fdirimanasinghamfiled revocation of proxy, and proxy from both defendants and objectionsand moved that the case be called on April 19, 1945, to be fixed forinquiry. When the matter came up for inquiry on the 19th June, Mr.Silva for the plaintiff stated that the objections should be taken by way ofpetition under section 687 of the Civil Procedure Code. Mr. Edirimana-singham asked that the affidavit filed be treated as a petition. TheCourt upheld the objection, rejected the affidavit and stated that theaward would be made a rule of Court on the 3rd July and ordered noticeon the parties for that date. The defendants appeal from this order.It is obvious that the procedure laid down in the Code had not beenstrictly followed. The Court in calling for objections appears to haveindicated that the procedure by petition was not obligatory and thatobjections to the award would be sufficient. In the circumstances, Ithink the Court might have treated these objections as a petition undersection 687 of the Civil Procedure Code for setting aside the award andproceeded to inquire into the matter.
However, on reference to the objections themselves, I find that thegrounds for setting aside the award are not such as would justify theaward being set aside even if the allegations are accepted.
Section 691 of the Code provides that no award shall be set asideexcept on one of the following grounds, namely :
(o) corruption or misconduct of the arbitrator or umpire ;
(6) either party having been guilty of fraudulent concealment of anymatter which he ought to have disclosed, or of wilfullymisleading or deceiving the arbitrator or umpire ;
27le Jting V. i'unoAf Manila.
203
(c) the award having been made after the issue of an order by the courtsuperseding the arbitration and restoring the action ;
Objections 1 and 2 do not refer to any of the grounds on which anaward may be set aside. Objection 3 states that on February 2, 1945,when the defendants were ready for inquiry, the arbitrator put off theinquiry at 11.30 a.m. and that this amounts to legal misconduct on thepart of the arbitrator and therefore the award is bad in law.
Reference to the proceedings before the arbitrator on that date showsthat both parties were not ready when the arbitrator came as the witnesseshad not turned up, and though the defendants’ witnesses came at 11.30the plaintiff applied for a date as the principal witness, the ex-arachchiewho was warned by Court on a previous occasion, had not come. In thecircumstances the arbitrator refixed the inquiry for the 23rd February asboth parties wished to summon witnesses afresh. He also ordered theplaintiffs to pay the defendants the costs of the day. The circumstancesclearly show that there was no misconduct on the part of the arbitratorin allowing the postponement. In the circumstances, I do not think anyuseful purpose would be served by remitting these proceedings for furtherinquiry.
I would, therefore, dismiss the appeal, but in view of the irregularprocedure which has been adopted, I would allow no costs for either side.The application in revision is also dismissed.
Appeal dismissed.