VULSON Vs. KELUKUTTY

JUDGEMENT

(1.) THESE two appeals are by the common defendant in two connected suits O. S. Nos. 50 and 53 of 1954 on the file of the Subordinate Judge of Kozhikode and are directed against two similar orders passed by the court below, refusing his motion to set aside the award made in favour of the plaintiffs by the sole arbitrator in the case.

(2.) O. S. 50 of 1954 was instituted by two plaintiffs, viz. , (I) K. Kelukutty -- a partnership firm and (II) K. Kelukutty one of the; partners of the 1st plaintiff-firm. The plaintiffs in O. S. 53 of 1954 were similarly the firm of U. K. Sankunny and u. K. Sankunny a partner thereof. O. S. 50 of 1954 was for recovery of Rs. 6300 with interest and costs from the sole defendant C. C. Vulson, on the basis of a pro-note dated 27-5-1951 executed by the latter, in favour of the 2nd plaintiff, K. Kelukutty. O. S. 53 of 1954 was based on a pro-note, of same date and for same amount and executed by the same defendant but in favour of Sankunny the 2nd plaintiff in that suit. In both suits, the plaintiffs averred that the consideration for the pro-notes concerned, moved from the respective 1st plaintiff-firms, though the 2nd plaintiff in each actually paid the same. Decrees were accordingly prayed for in both the suits, in favour of the respective 1st plaintiff-firms and only alternatively in favour of the 2nd plaintiffs. In view to the single origin of the transactions in the two suits and same contention raised by the common defendant, the two suits were being jointly tried together. While so, the disputes in both were referred to Mr. P. S. Bharatha Iyer, sole arbitrator of the parties' choice. The plaintiffs in the two cases were represented by two separate advocates before the arbitrator, who finally submitted his award to court on 10-91956. The 1st defendant thereupon filed the objection herein questioning the validity of the award on various grounds. It is the order rejecting these objections that forms the subject-matter of the appeals and we are concerned with some only of the grounds so raised and disallowed. We will deal with these grounds in the order in which they were raised before us.

(3.) NEXT as regards the costs of the suit. In regard to this matter, the arbitrator allowed costs in both the suits in favour of the respective plaintiffs and fixed for himself a fee of Rs. 1500 payable in equal thirds by the respective 2nd plaintiffs in the two suits and the common defendant. The defendant did not dispute the fees of Rs. 500 ordered as against himself in favour of the arbitrator. But he questioned his liability to pay anything towards the cost of the suit. The court below accepting this contention to certain extent, directed that the costs incurred by the parties under the award shall not be made part of the costs of the suit. The plaintiffs in the respective suits were accordingly allowed only the schedule fees as vakil's fee, along with the rest of their costs of the suit. Before us the contention is raised that there is no authority for the arbitrator to grant costs of the suit at all. Now Rule 8 of Schedule I of the Act (which deals with the implied conditions of Arbitration agreements) which is the relevant provision says: