011-NLR-NLR-V-67-ST.-JOACHIM’S-CO-OPERATIVE-STORES-SOCIETY-LTD.-Appellant-and-W.-L.-SOVIS-and-.pdf
1960 Present:. H. N. G. Fernando. J., and SInnetamby, J.ST. JOACHIM’S CO-OPERATIVE STORES SOCIETY, LTD.,Appellant, and W. L. SOVTS and others, Respondents
S. C. 404—D. C. Negombo, 16702
Co-operative Societies Ordinance-Arbitrator appointed thereunder—Application
to enforce award—Time limit—Inapplicability of s. 596 of Civil Procedure Code—Misconduct of arbitrator—Remedy of aggrieved party.
Section 696 of the Civil Procedure Code which imposes the time limit of sixmonths for making an application to file an arbitrator’s award in court doesnot apply to awards made under the Co-operative Societies Ordinance.
If an arbitrator appointed under the Co-operative Societies Ordinance isguilty of misconduct or acts contrary to the principles of natural justice, theremedy, if any, is to apply to the Supreme Court for special relief. If thatremedy is not sought, and an award is made by a person with duly vestedjurisdiction, the District Court must necessarily enforce it.
.A.PPEAL from a judgment of the District Court, Negombo.
E. R. S. R. Coomaraswamy, with E. B. Vannitamby, for Creditor-Appellant.
S. W. Jayasuriya, for 1st and 2nd Respondents.
N. Abeysinghe, for 3rd Respondent.
December 2, 1960. H. N. G. Fernando, J.—
The application by the appellant Co-operative Society to enforce asa decree of Court an award made in its favour by an Arbitrator appointedunder the Co-operative Societies Ordinance was refused by the DistrictJudge on two grounds. One ground was that the application was notmade to the District Court within six months of the making of theaward. Following the decision in 60 N. L. R. at page 45, we thinkthis objection was unsound for the reason that Section 696 of the CivilProcedure Code does not apply to awards made under the Co-operativeSocieties Ordinance. The other ground relied on by the District Judgewas that, according to his finding, the arbitrator did not administeran oath to one of the witnesses, and in the case of the same witness,did not permit cross-examination. In regard to the failure to administerthe oath, the District Judge himself realised that even if there had beensuch a failure it was not fatal to the validity of the proceedings, and Idoubt whether he would have relied on this ground if it was the onlyalleged irregularity. We also find ourselves unable to concur with theDistrict Judge’s finding that the Arbitrator did not permit a witnessto be cross-examined. In regard to that matter, the District Judgepreferred to accept the oral evidence of one of the respondents in pre-ference to the evidence of the person, who (it is alleged) was not permittedto be cross-examined when he gave his testimony before the arbitrator.The learned District Judge failed to take into account the presumption,though rebuttable, that a person acting officially would normally do soin the proper legal manner. The fact that no evidence was elicited incross-examination does not suffice to show that there was a refusal onthe part of the tribunal to permit cross-examination. The least thatthe District Judge should have done before reaching such a decisionwas to have summoned the arbitrator and questioned him on the matterbefore deciding that he had acted in an improper manner. In anyevent, we do not think that the District Judge had the power to decidethat the arbitrator acted improperly. In the case recently decided bya Bench of seven Judges, it was not, according to my recollection, arguedthat a District Court could refuse to enforce an award on such groundsas have been taken in this case. We think that if an arbitrator is guiltyof misconduct or acts contrary to the principles of natural justice, theremedy, if any, is to apply to this Court for special relief. If that remedyis not sought, and an award is made by a person with duly vestedjurisdiction, the District Court must necessarily enforce it.
We direct that the record be remitted to the District Court for theaward to be enforced in like manner as a decree. The appellant societywill be entitled to costs in both courts.
Sinnbtamby, J.—I agree.
Appeal allowed.