SHIV OMKAR MAHESHWARI Vs. BANSIDHAR JAGANNATH

JUDGEMENT

(1.) ON 26-4-1951 the appellant had applied to the City Civil Court for setting aside an award No. 19 of 1951 made against him. Pending the said application, the respondent had applied on 10-9-1951 for extension of time to make the award. The two proceedings were consolidated and on 20-6-1955 the learned trial Judge allowed the respondent's application for extension of time and dismissed the petitioner's application for setting aside the award. It is against this order that the present appeal has been preferred.

(2.) BOTH the appellant and the respondent were and are members of the East India Chamber of Commerce. It appears that this association had established a market or Exchange for effecting forward transactions inter alia in silver pieces. Consistently with the Articles of Association, Bye-laws were framed to regulate the transactions effected by members of the association in the said Exchange in respect of several commodities including silver pieces. In about January 1945 a Syndicate of live persons was formed for dealing in silver pieces. On or about 5-2-1948, according to the respondent one Lawjibhai as representing the said Syndicate had instructed the respondent to purchase 6,615 tukdas of silver from the market and accordingly the respondent did make the said purchase for and on behalf and as an agent of the said Syndicate. Thereafter one Chandulal Ravjibhai and one Kishan Gopal Bagdi instructed the respondent to allot and assign the said 6,615 pieces of silver to four parties in the proportion mentioned by them. 3,000 pieces were allotted to Messrs Radhakishan Shivkisan; 1,208 pieces to Messrs Jotram Kedar-nath; 1,817 pieces to Messrs M. Gulamali Abdullhusein; and 500 pieces to the appellant. The rate at which these 600 pieces were allotted to the appellant was Rs. 160/14/6 per 100 tolas. It would appear that on 7-3-1948 an emergency was declared by the authorities of the Association and on 10-2-1948 the Board of Directors issued instructions for squaring up all transactions at Rs. 154 per 100 tolas. In respect of this transaction the respondent claimed from the appellant Rs. 24, 226-9-0 and on 15-4-1948 the respondent applied for reference of this dispute to arbitration under the relevant Articles of Association and Bye-laws. The Lavad Committee to whom this dispute was referred by the Association held several meetings and in the end on 20-9-1950 the Committee made an award. It may be mentioned at this stage that in the meanwhile three Lavad Committees came to be appointed, as under the Articles of Association the life of a Lavad Committee appointed by the Association is only a year. The first Lavad Committee was appointed on 24-10-1947, the second on 27-10-1948 and the third on 2440-1949. It was the third Lavad Committee that made the award in the present dispute. The award was filed on 27-2-1951 and the appellant was given notice of the filing of the award on 3-4-1951. Thereafter the appellant filed his petition to set asidte the award and his petition was followed by the respondent's petition for extension of time to make the award. Ultimately the appellant's petition was dismissed and the respondent's petition was allowed.

(3.) IN the present appeal Mr. K. T. Desai for the appellant has argued that even a superficial examination of the irregular procedure adopted by the Lavad Committees in dealing with the dispute would show that the Committees were guilty of enormous delay and he contended, that, if ever there was a case where a request for extension of time should not be granted, it would be in the present case. It is true that the proceedings before the Arbitrators have taken place in a very leisurely manner; and the constitution of the Committees that actually heard these disputes from time to time shows that the Committees were fluctuating bodies. It appears that under the Bye-laws of the Association two Lavad Committees are nominated from year to year and pending disputes are assigned to these two Committees respectively. Mr. K. T. Desai had taken us through the details of the several meetings held by the Lavad Committees and has emphasized the fact that the members of the Committee have changed from time to time. But the change of personnel of the Lavad Committees is inevitable and unless the Bye-laws framed by the Association in regard to the constitution of the Lavad Committee are themselves invalid or ultra vires, no serious or valid grievance can be made against the changing constitution of the Lavad Committees themselves. At one stage Mr. K. T. Desai seemed to suggest that the quorum of two members prescribed by the Bye-laws was itself not satisfied; but he conceded that this argument was based upon a misconception and that the rule as to quorum has been complied with in all the meetings held by the Lavad Committees in dealing with the present dispute. Whether or not the Bye-laws prescribing the constitution of the Lavad Committees and their procedure are ultra vires, the contention that extension of time should not have been allowed by the learned Judge cannot, in our opinion, be made by the appellant because under Section 39, Arbitration Act, an order passed by the trial Judge extending time is not appealable. Legislature has clearly contemplated that the question as to whether time should be extended should be left entirely to the discretion of the trial Judge and the order that the trial Judge may pass in the exercise of his discretion should be regarded as final. It is true that the application made by the respondent for extending time was consolidated with the appellant's application for setting aside the award'. But this consolidation cannot give the appellant a right to challenge an order which, under the law, is not appealable. Therefore, in our opinion. It is unnecessary for us to consider whether the learned Judge was right or not in extending time for making the award.