HARAN CHANDRA LAHKAR Vs. KRISHNA KANTA DAS

JUDGEMENT

(1.) THE petitioner instituted a suit on 2 -8 -50 in the Court of the Subordinate Judge, L.A.D. at Gauhati for recovery of a sum of Rs. 4,185/8/ - on the basis of two promissory notes executed by the defendant -opposite party in his favour and the defendant pleaded liability only to the extent of Rs. 600/ - stating inter alia that the promissory note for Rs. 600/ - was executed on an adjustment of accounts between the parties, they having carried on a joint business between themselves. On 19 -9 -1951, both the parties filed a joint petition in the Court of the Subordinate Judge praying that the matter might be referred to arbitration of three members, one to be nominated by each of the parties and the third to be nominated by the Court and accordingly, two persons, Ganga Narayan Dev Sarma and Chakrapani Das were nominated by the two contending parties and the Subordinate Judge nominated Mr. Iswar Chandra Medhi as the third arbitrator in terms of the petition filed by the parties and the date for submission of the award was fixed for 20 -11 -1951 which was subsequently extended upto 29 -2 -52.

(2.) THE learned Subordinate Judge interfered with the award on the ground of misconduct of the arbitrators as well as on the ground of irregularity, inasmuch as there was no joint consultation among the arbitrators as was the intention of the Court as well as of the parties. The learned District Judge, however, did not consider that there was any misconduct on the part of the arbitrators but held that the arbitrators did not act strictly in pursuance of the Court's order and there being admittedly no joint consultation amongst the parties with a view to come to the final decision, there was no valid award and he set aside the same as, in his opinion, the final act of arbitration was not done by all the three arbitrators, but the third arbitrator, Mr. Iswar Chandra Medhi who misdescribed himself as an umpire and misconceived his position in law. Under these circumstances, the only point for consideration is whether the reference of the matter back to the three arbitrators for arbitration once again is valid and could be upheld or this Court should interfere in its exercise of powers under Section 115, Civil P.C.

(3.) ON consideration of the facts involved, we find that the learned Judge was correct in holding that the award as submitted by the three arbitrators was invalid and not in pursuance of the Court's order. We have now to consider whether the order setting aside the award came under the operation of Section 30, Arbitration Act or under Section 16 of the Act which allows remittance of the award under certain circumstances. Section 16 provides three conditions on which to remit the award or any order referred to Arbitration for reconsideration, and these are -