SHIVCHANDRAI JHUNJHUNWALLA Vs. MUSSAMAT PANNO BIBI

JUDGEMENT

(1.) THIS is a petition to set aside an award made by the umpire, on a reference to him, in respect of a transaction in cotton made under the rules of the East India Cotton Association, Ltd. In the petition three grounds are put forth to set aside the award. The first is that the reference to arbitration was beyond the period of limitation. Secondly, that without the consent of the parties neither the Chairman of the Association nor the umpire had jurisdiction to extend time for the umpire to make his award. Lastly, that the respondent not having obtained representation to the estate of her husband was not entitled to conduct arbitration proceedings or refer the disputes to arbitration and was not entitled to apply to this Court for a decree in terms of the award.

(2.) IN support of the first contention it is alleged in the petition that the contract was in respect of May, 1938, settlement of which the due date was May 25, 1938. The application for a reference should be made within three years of that day and in this case the advocate's telegram intimating that the respondent had appointed her arbitrator and calling upon the petitioner to appoint his was dated May 26, 1941. No other facts are alleged in respect of this contention. It is pointed out for the respondent that the time would expire on May 25, 1941. That day was a Sunday and therefore the step taken on May 26, 1941, was within time. I therefore hold that the first ground fails.

(3.) IN respect of the third ground, it was the respondent who sent the notice to proceed with the arbitration. She was not one of the contracting parties. Under Section 6 of the INdian Arbitration Act, however, the arbitration agreement is not discharged by the death of a party, but could be enforced by or against the legal representative of the deceased. Section 2(d) states that a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. IN the present case I am told that the petitioner appeared under protest before the arbitrators but he nowhere contended that the respondent was not the legal representative of the deceased and therefore not entitled to enforce the agreement under Section 6 of the INdian Arbitration Act. Be that as it may, it seems to me that this is a question which has to be determined by the arbitrators. When a reference comes before the arbitrators, and a party who is not the original contracting party seeks to enforce the arbitration agreement, the arbitrators have to inquire whether the party is entitled to enforce the agreement. The award describes the respondent as the widow and sole successor to the estate of the deceased Chunilal Maheshwar. The petitioner urges that the deceased died leaving a will and the respondent as his widow and a son Purshottam. It is argued that therefore there is an illegality on the face of the award. IN my opinion this argument is unsound. It was within the competence of the arbitrators to determine whether the respondent was entitled to enforce the agreement and the petitioner's argument in substance is that the umpire came to the decision on insufficient or inadequate materials. It is unnecessary to state that an award cannot be challenged on the ground that the arbitrator had made the award without adequate materials, i.e. materials on which a Court of law would not have decided to that effect. That would amount to going behind the award which is not within the jurisdiction of the Court. Reading the petitioner's statement about the will and about two persons being left behind the deceased, and reading the award as framed, I see not illegality on the face of the award. The arbitrators have decided and must have been satisfied on the facts placed before them or the umpire that the respondent was the widow and sole successor to the estate of the deceased and as such entitled to proceed with the reference.