HARBANS SINGH Vs. PUNJAB STATE

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Subordinate Judge, 1st Class, amritsar, dated 17-5-1958, dismissing the application of Shri Harbans Singh Petitioner under S. 33 of the Indian Arbitration Act.

(2.) ON 19-4-1954 an agreement was entered into at Amritsar between Shri Harbans Singh petitioner and the State of Punjab for the construction of grain storage bin at Batala and contingent works. In the agreement, provision was made in clause 25-A for arbitration by superintending Engineer of Jullundur Circle. This clause in brief provided that if any question, difference or objection whatsoever arose in any way connected with or arising out of this instrument or the meaning or operation of any part thereof * * * * *every such matter shall be referred for arbitration to the Superintending Engineer of Jullundur Circle and his decision shall be final and binding * * * * *. Disputes having arisen between the parties, Shri Harbans Singh by his letter dated 20-9-1954 moved for a reference to be amde to the Superintending Engineer, Jullundur Circle, P. W. D. (B and R branch), Jullundur Cantonment. The matter came up before S. Hukam Singh, the then superintending Engineer, who issued notices to the parties to appear before him on 19-11-1954 (Exhibit R. 12 ). On 5-11-1954, S. Hukam Singh, Superintending Engineer (Arbitrator), informed both Shri Harbans Singh and the Executive Engineer that the Executive Engineer, Amritsar provincial Division, had represented that for want of certain information, permission of the government was not likely to come in time and the date for hearing fixed for 19-11-1954 might be postponed; the parties were thus informed that the date of hearing was being postponed to 2-12-1954 at 10-30 A. M. in his office at Jullundur Cantonment (Exhibit R. 13 ). On 9-11-1954, Harbans Singh wrote a letter to the Superintending Engineer, Jullundur Circle, acknowledging receipt of his letter dated 21-10-1954 and intimating that the date as contained in the above letter was not clear. If it was 10-11-1954, then he could not attend but if it was the 19th, then the same may be confirmed. He also enquired from the Superintending Engineer, if the Executive Engineer had obtained the sanction of the Chief Engineer so that if the sanction of the Chief Engineer so that if the sanction had not been obtained, he (Harbans Singh) may be saved of the expenses because he had to come from Allahabad (Exhibit R. 14 ). On 18-11-1954, a letter was issued from Shri D. C. Sharma, Superintending Engineer (Arbitrator) to Shri Harbans singh stating that perhaps the registered letter issued from his office on 5-11-1954 to Shri harbans Singh's address had not been received by him in which it had been notified that the date of hearing had been postponed to 2-12-1954 in his office at Jullundur Cantonment. The change of date was stressed in this letter of 18-11-1954. Shir Harbans Singh was also informed that the Executive Engineer, Amritsar Provincial Division, was being sounded if he was desirous of a change in the date for want of the Chief Engineer's sanction (Exhibit R. 8 ). On 22-11-1954, the Executive Engineer wrote a letter to the Superintending Engineer requesting for a change in the date as sanction from the Chief Engineer was not likely to be received by 2-12-1954 (Exhibit R. 10 ). On 30-11-1954, another letter had been addressed by Harbans Singh, from Allahabad as usual, to the Superintending Engineer, Jullundur Cantonment, intimating that since he had not heard about the sanction of the Chief Engineer having been received by the Executive Engineer, he would not be coming on 2-12-1954, the date of hearing (Exhibit R. 15 ). By means of a letter dated 7-12-1954, Shri D. C. Sharma informed both Shri Harbans Singh and the Executive engineer that the date of hearing had been postponed 30-12-1954 at 10-30 A. M. in his office at jullundur (Exhibit R. 16 ). On 7-12-1954, the Executive Engineer concerned again sought adjournment of the date of hearing to be extended and fixed on or about 11-1-1955 (Exhibit R. 11 ). Shri D. C. Sharna thereupon postponed the date to 11-1-1955 and informed both Shri Harbans singh and the Executive Engineer (Exhibit R. 17 ). This date appears again to have been postponed to 24-1-1955, with information to both the parties (Exhibit R. 18), which date was again adjourned to 25-1-1955 (Exhibit R. 19 ). On 16-1-1955, a registered letter was sent by Shri harbans Singh from Allahabad to the Superintending Engineer, requesting for a copy of the pleading and defence filed by the Executive Engineer. On 20-1-1955, Shri D. C. Sharma wrote to shri Harbans Singh reminding him of the date fixed for 25-1-1955. On 2-2-1955, Shri Harbans Singh wrote another letter to the Superintending Engineer stating that the could not attend the Arbitrator's office on 25th and asked for information about the next date of hearing (Exhibit R. 20 ). It appears that Shri D. C. Sharma also wrote to the Senior subordinate Judge, Gurdaspur, for extension of time under S. 28 of the Indian Arbitration Act and the Executive Engineer on 22-3-1955 informed the Superintending Engineer that the Court had given 24-3-1955 as the next date because the contractor was not present in the Court at the previous hearing. On 17-4-1955, again the Executive Engineer wrote to the Superintending Engineer that as Shri harbans Singh had not turned up, the hearing of the case stood adjourned to 25-4-1955. It appears that on 26-4-1955 the Executive Engineer informed the Superintending Engineer that on 25-4-1955 he (Executive Engineer) had attended the Court in connection with the extension of time. The contractor, however, again did not appear but the Court granted extension up to 30-6-1955. Shri D. C. Sharma thereupon informed both Shri Harbans Singh and the Executive engineer by means of letter No. SE/1156263/g dated 7-5-1955 that the Court had granted extension of time for giving the award up to 30-6-1955. The parties were informed that he would hold the hearing on 6th of June 1955 and they were requested to attend with all their connected papers (Exhibit R. 22 ). This letter was acknowledged by Shri Harbans Singh on 19-5-1955 stating that he had another engagement with the superintending Engineer, Jodhpur Circle in Rajasthan, in the first week of June 1955 and that if that other engagement was postponed, he would be attending the hearing at Jullundur on 6th june, otherwise a request for adjournment to the second week of June would have to be made by him. He also requested the Arbitrator to get produced from the Executive Engineer some documents mentioned in that letter (Exhibit R. 6 ). Siri D. C. Sharma in reply to Exhibit R. 6 informed Shri Harbans Singh that it would not be possible to change the date fixed for 6-6-1955. It was expressly stated in this letter that the Court of the Senior Subordinate Judge at Gurdaspur had to be approached for extension of time which had been granted up to 30-6-1955 before which the award had to be given (Exhibit P. 7) before which the award had to be given (Exhibit P. 7 ). On 26-5-1955, Shri Harbans Singh again wrote a letter to the Superintending Engineer stating that he would be definitely reaching Jullundur on 6th of June (Exhibit P. 23 ). It appears that on 6th of June the parties conducted their case before the arbitrator and after the hearing, Shri D. C. Sharma gave his award on that very day and in the end of the award it is clearly stated that both parties having nothing more to say, the hearing was concluded which apparently means that the award was given in the presence of the parties. The arbitrator by means of his decision allowed a sum of Rs. 1,182/3/- as against Rs. 26,175/1/- as claimed by Shri harbans Singh.

(3.) THE counsel next relied on East Indian Film Studios v. P. K. Mukherjee, AIR 1954 Cal. 41 for the proposition that another arbitrator in place of one already appointed could only be appointed when the first appointed arbitrator had neglected or refused to Act or was incapable of acting or had died. This was a case of reference under the Defence of Indian Act and the person who was appointed as an arbitrator was still readily available. The observations in this case, in my opinion, are similarly to be confined to the facts and circumstances of that particular case. Reliance is next placed on Jai Dayal Pearey Lal v. Chunnilal Parshotam Das, AIR 1951 All 359. In this case each party to the dispute had appointed its own arbitrator. One of the arbitrators subsequently ceased to be qualified to be an arbitrator, with the result that the arbitration proceedings were thus carried on before the remaining sole arbitrator and the award was given. The bye-laws of the Association, in accordance with which, the reference had been made did not provide in express terms that an arbitrator was to cease to have authority as such by ceasing to be representative of a member of the Association as was the case in the reported decision. The Court came to the conclusion that no steps having been taken to move the Court for revocation of the authority of the said arbitrator under S. 5 of the Arbitration Act, he did not cease to have authority as an arbitrator and therefore the award given by the remaining arbitrator was invalid. This again is of practically no relevance to the case before me. Ismail v. Hansraj, air 1955 Raj 153 has been merely cited in support of the proposition that authority of arbitrators cannot be revoked except with the leave of the Court and that where no such leave is granted, the mere fact that the party has applied for revocation of the reference and has also served a notice on the arbitrators, does not make the award invalid. In Ram Protap Chamaria v. Durga Prasad Chamaria, AIR 1925 PC 293 the Judicial Committee held that an award not contemplated or authorised by the order of reference of the Court is invalid. The suggestion that one and the same arbitration could be held as to matters within the jurisdiction of the Court and matters without jurisdiction of the Court between the parties to the suit and between them and other persons and partly upon an order of reference and partly under an agreement was repelled. This proposition of law has also nothing to do with the question that i am called upon to decide.