NATHMULL TOLARAM Vs. KILLA AND CO

JUDGEMENT

(1.) THIS is an application for determination of the validity of an award dated 13-2-1958 and for declaration that the award is null and void and also for setting aside of the said award.

(2.) THE petitioner's case is that it had various dealings and transactions with the respondents and in respect of certain dealings disputes and differences arose between the parties. By an agreement dated 16-12-1957, the petitioner and the respondent referred all their disputes and differences to the arbitration of two named arbitrators, namely, Sri Kishorilal Dhandhania and Sri Madanlal Pandya. THE said agreement was submitted to the arbitrators on the very next day but the arbitrators did not call upon the parties to submit any statement before them and no meeting was called nor any reference was held by the arbitrators during the whole of January 1958. In or about 1-2-1958, the petitioner received a notice from the arbitrators which did not bear any date but which intimated that a meeting of the reference would be held by the arbitrators on 4-2-1958. THE petitioner being unable to attend the meeting to be held on 4th of February, intimated the arbitrators its inability to attend the same but the petitioner sent its representative Ganpatlal Mandhani to Calcutta on 9-2-1958 and this Representative attended the meeting of the said reference held on 10-2-1958 and he also attended another meeting alleged to have been held on 15-2-1958 when the arbitrators closed the reference and stated that they would make their award after some time. On or about 17-3-1958, the petitioner received a letter from the arbitrators dated 14-3-1958 along with which a copy of the award made by the arbitrators had been enclosed. This award directed the petitioner to pay a total sum of Rs. 72,000/- to the respondent with interest at 9 per cent, per annum from 14-2-1958 until realisation and it also provided that, if the said amount was paid by the petitioner within two months, the respondent would accept the said sum in full settlement and would not be entitled to charge any interest. It is alleged in the petition that after receipt of the copy of the award the petitioner did not inadvertently notice the date of the award and a payment of a sum of Rs. 12,000/-was made to the respondent a few days thereafter by mistake. Subsequently, in September 1958, the petitioner made the discovery that the award had been made beyond time and as such was void and inoperative and that the arbitrators had back-dated the award as having been made on 13-2-1958. It is further alleged in the petition that although it was incumbent upon the arbitrators to appoint an umpire before proceeding with the reference and the appointment of the umpire was a condition precedent to the arbitrators entering on the reference, no such appointment of umpire had in fact been made and therefore the proceedings before the arbitrators were vitiated inasmuch as the alleged tribunal which purported to determine the disputes and make the award had not been properly constituted.

(3.) MOREOVER, beyond a bare allegation in the petition that on 17-12-1957 the copy of the arbitration agreement was served on the arbitrators no document or any peon book entry or letter is forthcoming to show that the arbitration agreement was in fact served on the arbitrators on 17-12-1957. If, in fact, the arbitration agreement had been served on the arbitrators on 17-12-1957, it is improbable that the arbitrators would keep quiet and would not take steps to eater on the reference till 1-2-1958 knowing full well that speedy determination of the dispute was required under the arbitration agreement and one month's time had been fixed as the time for making the award. So I am inclined to accept the case of the respondent as true. It appears to me that the arbitrators were served with the arbitration agreement on or about 14-2-1958.