056-NLR-NLR-V-51-WIJETUNGA-Appellant-and-WEERASINGHE-Respondent.pdf
WINDHAM J.— Wijetunya v. Y ee.rusinghr221)
1949Present: Nagalingam J. and Windham J.WIJETUNGA, Appellant, and WEERASINCHE, Respondent
8. C. 115—D. C. (Inty.) Avismwella, 5,235
Co-operative Societies Ordinance—Submi&siwi to arbitration-—Reference underrule 29—Rule not applical>le—Can reference be deemed to be undersection 45 of Ordinance ?—Chapter 107—Ordinance No. 34 of 1922—Rule29.
Whore under the Co-operative Societies Ordinance a dispute isreferred to arbitration undor rule 29 of the rules framed under OrdinanceNo. 34 of 1921, in a matter which does not fall within the scope of thatrule, such reference) cannot be deornod to have been made under section45 of the Ordinance (Chapter 107.)
A.PPEAL from a judgment of the District Judge, Avissawella.
N.E. Weerasooria, K.C., with E. B. Wikramanayake, K.C., andV. Kandasamy, for plaintiff appollant.
H. W. 'faycuxirdene, for defendant respondent.
Cur. adv. vail.
March 21), 1949. Windham J.~
The plaint,ifT-appollants, a co-operative society registered under Un-Co-operative Societies Ordinance (Cap. 107), appeal against an orderof the District Court dismissing their application for a writ cf executionfor the recovery of Its. 341 • 16. which sum was decreed to be due to themfrom the defendant-respondent by an award or purported award datedNovember 16, 1947. The learned District Judge dismissed the appli-cation on the ground that the award was ultra vires in that the disputewas not one that the Registrar had power to refer to arbitration underrule 29 of the Rules framed under the Co-operative Societies Ordinance.No. 34 of 1921, under which he purported to refer it and under whichtho award purported to be made, or under section 45 of tbc Co-operativeSocieties Ordinance.
The dispute referred to arbitration was between the plaintiff Societyand the defendant. The defendant had been the Treasurcr of the Societ since Juno, 1946. On November 17, 1946, by reason of an audit inquiry,he was ordered by the committee of the Society to stop his work asTreasurer as from that date, and a temporary Treasurer was appointed.On July 7, 1947, the committee resolved to recover the araotmt said U>be due from the defendant in a court of law. On July 27, the committeeappointed a new permanent Treasurer in the place of the defendant.On August 5, the Registrar referred tho dispute to arbitration.
On these facts I think the learned District Judge was correct in holdingthat when tho dispute was referred to arbitration the defendant hadceased to be the Treasurer of the Society, and had thuB ceased to be anofficer. The dofondant ceased tQ be Treasurer on July 27, 1947, whenthe new permanent Treasurer was appointed. It remains to see whetherin these circumstances the Registrar had power to refer the dispute toarbitration. Now, it has not been seriously contested that the Registrarhad no power to make the reference under rule 29 of the Rules, sinceparagraph fn) of lhat rule, which defines the kind of dispute which mav
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WINDHAM i'—'Wijetuaga v. Wteruninght
be referred under the rule, does not cover a dispute to which the Societyitself is one of the parties, as it was in the present case. It is contendedfor the plaintiff Society, however, («) that the Registrar did have powerto rofor the dispute to arbitration under section 45 of the Co-operativeSocieties Ordinance (Cap. 107), and (b) that although the reference andthe award itself purported to be made under rule 29, they must be deemedto have boen made under section 45.
With regard to tho first contention, soction 45 (1) (c) provides that*’ if any dispute touching the business of a registered society arises….(c) between tho society or its committee and any officer of
the society, such dispute shall be referred to the Registrar for decision ” ;and soction 45 (2) (6) goos on to provide that the Registrar may thereuponrefer it for disposal to an arbitrator. The proper construction of thisprovision in section 45 (1), in my viow, is that if the dispute, when itarose, was a dispute between the society and an officer, then it becomesa dispute referable to tho Registrar and by him to an arbitrator, not-withstanding that, before it is referred, the officer has ceased to be anofficer. For the section provides that “ such dispute ” may bo referredto the Registrar, and by him to an arbitrator ; and the words “ suchdispute ” rofor back to the dispute which has arisen between the societyand its officer. Thus it is this particular dispute which is referred, andit remains the same dispute even after ono of the parties to it, an officer,has ceased to be an officer. Accordingly in tho present case, if thedispute arose boforo July 27, 1947, while tho defendant was still an officerof the Society, it was a dispute properly reforablo under section 45 (1) (c)on August 5, although on that date ho was no longer an officer but anox-officer, which term has been held in lllangakoon v. Bogollagama1 tobe not included in the word “ officer ” in section 45 (1) (c).
A point was ratsod before us that on August 5, when tho reference toarbitration was made, there was not yet any “dispute” at all whichwas capable of being referred, whether under rule 29 or under section 45,since the defendant had not yot disputed hjs liability to pay to the Societythe sum which was stated to be the subject matter of the dispute, namelyRs. 70(1*16. Certainly there was nothing in the oral evidence (whichincluded that of the defendant himself) or the documentary evidenceIndore the learned District Judge to show that the defendant had eitheradmitted or denied his liability to pay the sum claimed. And since theburden was on the plaintiff to show that a dispute had arisen at the timewhen it purported to bo referred to arbitration, he would appear to havefailed to discharge that burden. I refer to Wijayarayana v. GeneralInsurance Co. Ltd.2 where the necessity of proving that the claim hadbeen disputed heforo being referred to arbitration as a “dispute” wasemphasized. Rut since this point was not raised or argued below, I donot propose to base a decision upon it, but will turn to consider thesecond question which the plaintiff Society must also answer satis-factorily if they are to succeed in this appeal, namely whether it is opento them to argue that the reference to arbitration, and the award, musthe deemed to have been made under powers conferred by section 45 of theOrdinance, when the Registrar purported to refer the dispute, and thearbitrator to make his award, under rule 29 of the Rules and not undersection 45.
» (194*) 49 N. L. R. 401.
• (IMS) 47 N. L. If. 2*9.
2:54
The King v. (?'. If. Fernando
In Dakshinn Ranjan G'hofih r. Omar Cfotnd Osteal 1 Sanderson C.J.said,—
“The decision of the learned Sob-ordinate Judge implies theimportation of words into the section which cannot be found there.He would read the section as if it were ‘ in resect of any act purportingto be done by such public officer bona fide in his official capacity In ray judgment it is not legitimate to construe the section by importinginto the section words which do not appear in the sectionIn Abdul Rahim v. Abdul Rahim – there occurs the following passage inthe judgment of Daniels and Ncavo JJ. :—
“ The contention urged on behalf of the respondent in this Courtis that which was adopted by the Court below, namely, that section80 has no application unless the act complained of was done in goodfaith. On the language of this section the question seems to us toadmit of no doubt. The section does not require that the act shouldhavo been done in good faith. It merely requires that it shouldpurport to be done by the Officer in his official capacity. Tf the actwas one such as is ordinarily done by the Officer in the course of hisofficial duties and he considered himself to lie acting as a Public Officerand desired other persons to consider that he was so acting, the actclearly purports to be (lone in his official capacity within the ordinarymeaning of the term ‘ purport The motives with which the actwas done do not enteT into the question at all ”.
These cases were followed in Muhammad Sharif r. Xasir AH 3 winchwas an action for malicious prosecution.
For tho reasons given by me earlier in the judgment I would dismissthe appeal with costs.
Pclle J.—I agree.
Appeal dismissed.