VINAYAK VISHNU SAHASRABUDHE Vs. B G GADRE

JUDGEMENT

(1.) THIS is a plaintiff's appeal from the judgment made in pursuance of an award given by the arbitrators who had been appointed by the parties to arbitrate into their dispute.

(2.) IT is common ground that the plaintiff Sahasrabudhe agreed to construct a building for the respondent No. 1 according to an agreed plan at a cost of Rs. 60,000/ -. Subsequent to this agreement, certain variations were effected in the original plan by reason of which the appellant was required to deviate from his original work.

(3.) IN pursuance of a clause in the agreement between the parties, the dispute was referred for arbitration to the respondents 2 and 3. One of the clauses in the arbitration agreement was as follows : "you arbitrators are authorised to nominate a third person to act as a final arbitrator or umpire in case there is difference of opinion between you and such nomination of an umpire should be made by you both before you proceed to start inquiry. " The Court below has held that no such umpire was appointed by the arbitrators though there were proposals before them for appointing Mr. D. S. Gadre or Mr. B. P. Choudhari as an umpire. The arbitrators then gave notices to the parties that they will take up the matter on 13-7-1951. On that date, both the parties appeared before the arbitrators. A meeting was held in the house of the respondent No. 1. On that date, remuneration of the arbitrators was fixed. The arbitrators then examined the building, made preliminary enquiries from the parties regarding the outstanding issues, and perused the original agreement between the parties along with the estimates and plans for the construction of the building which were in the possession of the respondent No. 1. The arbitrators directed the parties to file detailed statements of their claims along with necessary documents and account-books within 15 days from this date. They also directed the respective parties to submit their replies within ten days from the date of receipt of the statements of claims made by the opposite party. They then fixed sittings for the 11th and the 12th of August, 1951. The arbitrators accordingly sat on those days. Both the parties were present on each of those days. On the first of those days certain measurements were taken. On the next day, the arbitrators made certain calculations on the basis of these measurements and explained those calculations to the parties. After discussion between the parties, they agreed upon a certain method of calculating the costs of the work which had been done up to that date. The arbitrators then fixed sittings for 1st and 2nd of September, 1951. In point of tact, however, they did not sit on either of these dates. They sat instead on the 6th and the 7th of October, 1951. According to the appellant, he had no notice of these sittings. It may be mentioned that the sittings on the 6th and the 7th were admittedly attended by the respondent No. 1, but according to the appellant they were not so attended by him. After these sittings were over no further date was fixed by the arbitrators. It is said that the arbitrators met on the 22nd of October, 1951 and drafted a tentative award which was signed by one of the arbitrators, the respondent No. 2, on that very day but it was not signed by the other arbitrator, the respondent No. 3 on that day. It is further said that he signed it on 1-11-1951.