020-NLR-NLR-V-14-PITCHE-TAMBY-et-al-v.-FERNANDO-et-al.pdf
( 73 )
Present: Wood Renton J. and Grenier J.
12, mo
PITCHE TAMBY et at. v. FERNANDO et at.
394—D. C. Putialam, 1,990.
Arbitration—Fifteen day*? notice of th& filing of the award must be givento the parties—Notice to the proctors insufficient—Doctrine, ofestoppel, how far it applies to arbitration proceedings—Vi oilProcedure Code, ss. 670. 687.
Fifteen days1 notice of the filing of the award by an arbitratorshould be given to the parties to the case prior to the confirmationof the award by the Court. The notice should be to the partiesthemselves and not to the proctors.
The provisions of the Civil Procedure Code in regard to arbitra-tion should be rigorously and literally complied with.
rpHE facts appear sufficiently from the judgment.
Sampayo, K.C., for the first defendant, appellant.—The applica-tion for reference to arbitration was not signed by all the partiesto the case. The award is therefore invalid.
The appellant did not receive fifteen days’ notice of the filing ofthe award prior to its confirmation by the Court, as required bysection 687 of the Civil Procedure Code. The decree of Court wastherefore irregularly entered.
Authorities cited : Bykuntnath Chatterjee v. Nuzuroodeen,1 InciurSubbarami v. Kandada RajamanmrHira Singh v. Ganga Sahai?D. C. Kurunegala 2,493, 24 Cal. 469.
Chitty9 for plaintiffs, respondents.—The appellant is estoppedfrom questioning the validity of the award, as he took part in thearbitration proceedings without protest.
The appellant had signed the application for reference, and istherefore bound by the award.
The proctor for the- appellants had no objection to offer againstthe award being made a decree of Court; notice to the proctor wassufficient notice to the appellant.
Counsel cited the following authorities : Biswas v. Mookerjee,*Dasia v. Pani? Tyerman v.. Smithf Sundram Aiyar v. • Abdul LatiJ?. Abdul Hamid v. Raizuddin,8 Joy Prokash Lall v. Sheo Golam Singh?
Sampayo, K.C., in reply.
Cur. adv. vult.
■ 10 W. 11. 171* 26 Mad. 47.
3 il8S3) 6 AU. 322.
A (I860) 6 W. M. 130
•’ (1879) 1 Cal. 66.
(1866) 25 L. J. Q. B. 359.
(1899) 27 Cal. 61, 64, 65.* (1907) 30 AU. 32.
8 (1884) 11 Cal. 37.
D 2
( 74 )
July 12, luw
Pitcke Tamhytf. Fernando
July 12,1910. Wood Renton J.—
In my opinion this appeal must be allowed. It appears, first,that there was no special authority given by the parties or any ofthem to their respective proctors to consent to a reference of thecase to arbitration as required by section 676 of the Civil ProcedureCode, and the decisions of the Supreme Court interpreting thatsection (sec Gonsales v. Holsingerl) : in the next place, that theapplication for a reference to arbitration, was, in fact, not signed byall the plaintiffs-respondents to this appeal, although it was signedby the first defendant-appellant; and in the last place, that the firstdefendant-appellant did not receive the fifteen days’ notice of thefiling of the award prior to its confirmation by the Court, to whichsection 687 of the Civil Procedure Code entitled him. It is notnecessary for the purposes of the present case to decide—and I donot decide—that there may not be circumstances in which a partyto an arbitration, who has either duly authorized his proctor toapply for an order of reference, or has himself made in person andsigned such an application, and has thereafter appeared before thearbitrator without objection, taken part in arbitration proceedings,and raised no objection to the award in the court of first instance,may not fairly be held to be estopped from challenging the awardfor the first time in the Appeal Court, on the ground that the appli-cation for an order of reference had not been signed by all the partiesto the case, provided that what is decreed to do by the award issomething that can be fulfilled in favour of the parties who have,irrespective of those who have not signed- the application for areference. I do not think that that point is covered by the decisionsof Stewart J. and Dias J. in Ramasamy Kangany v. Aiya CuttyKangany'1 and of the Collective Court in Bimbarahami v. KiribandaMuhandiram? where the ratio decidendi was that there had beenno application in writing at all for the order of reference, and nofoundation for the proceedings, except a minute by the DistrictJudge. Here, however, the first defendant-appellant has had judg-ment given against him in favour of all the plaintiffs-respondents,both those who did, and those who did not, sign the applicationfor the reference jointly and severally. The plaintilfs-respondentwho did not sign that application would not have been bound bythe award if it had been adverse to them, and they cannot takeadvantage of it when it is in their favour (see Hira Singh v. GangaSahai4). I think that the award in the present case cannot beupheld on the ground that the appellant is.estopped from disputingit (see also No. 266—D. C. Final Kuruncgala No. 2,493). Whetherthe doctrine of estoppel can ever be applied so as to cure irregu-larities in arbitration proceedings is a question in regard to whichthere has been considerable difference of judicial opinion both in
> U98o) 7 S. C. C. 101..*11886)7 8.0.0.99.
* {1879) 2 S. C. C. 59.4 {1883) /. L. R. 0 AU. 322.
( 75 )
India and in Ceylon, and which may some day have to be definitelydecided. Moreover, in my opinion, the omission to give the firstdefendant-appellant due notice of the filing of the award is a fatalobjection to the proceedings. The case was fixed for the considera-tion of the award on September 22, 1909; it was only on September15 that notice of the filing of the award was given to him ; he hadnot, therefore, the period of fifteen days allowed by section 687 ofthe Code of Civil Procedure for the filing of any objections to theaward that he might have to offer. On the day fixed for the hearingboth he and his proctor appeared before the District .Court; theproctor stated that he had no objections to offer to the award. Thefirst defendant-appellant himself, however, at once informed theCourt that he had cause to show against the award. The learnedDistrict Judge thereupon said that no petition to set aside theaward had been filed ; that the award was filed on August 31 ; andthat parties had taken notice of it on that date. It appears, andcounsel for the respondents admitted at the argument before us,that on August 31, when the date was fixed for the consideration ofthe award, the parties were absent, although their proctors werepresent. There is no entry in the record showing that the proctorstook r:lice on behalf of the parties. Section 685 of the CivilProcedure Code requires that notice of the filing of an award shouldbe given to the parties themselves, and the affidavit of the processserver shows that this was not done till September 15.
I would set aside the decree under appeal and all the arbitrationproceedings and send the case back for trial on issues in the usualway. The appellant is entitled to the costs of this appeal as againstthe respondents. I would leave the costs of the original and of thesubsequent proceedings to the District Judge.
I desire once more to point out how vitally important it is thatthe courts of first instance in all cases of this kind should see that theprovisions of the Civil Procedure Code in regard to arbitrations arerigorously and literally complied with.
Grenier J.—I agree.
Sent back.
♦
July 12, tfilOWood
UlSXTOJT J.
Pitrfi* Twilhtfi Fcriwntlo