GOPAL DINKAR NAGARKAR Vs. GANESH NARAYAN NAGARKAR

JUDGEMENT

(1.) The matters in dispute in this suit were referred to arbitrators at the request of the parties who agreed to abide by the decision of the arbitrators, who were- two in number, on the points on which they agreed, and by; the decision of the umpire on point or points on which they differed. The arbitrators agreed on certain points and they filed their award on the 19th of February 1915, and on the points oh which they differed the umpire gave his decision on the 9th of August 1918. Both parties tiled objections to the arbitrators award. The Court passed an order on an application made by the parties to amend the award on the ground that there were certain clerical errors made by the arbitrators. The order was, "Notice to arbitrators to rectify the award under Rule 12 of the Second Schedule of the Civil Procedure Coda and notice to the plaintiff to show cause why the award should not be amended as proposed by the defendants." On the 28th of July the plaintiffs made an application to the Court pointing out certain clerical errors made by the arbitrators and the Court passed an order forwarding the application to the arbitrators for consideration. The arbitrators considered the objections of the parties, and submitted their opinion regarding the alleged errors on the 31st of August 1915, Notice was then issued to the parties, and an order was passed, after hearing them, appointing two Commissioners to examine the accounts made by the arbitrators with a view to ascertain whether they really involved any arithmetical or clerical error. The Commissioners were directed to examine the accounts and also the parties, if necessary. Thereupon the Commissioners asked the opinion of the Court on certain points on which the Court passed the following order: "The Commissioner should confine himself to three items (double entries as stated in the Purshis Exhibit 120 by Mr. Patwardhan). Even if the parties may ask to reopen the whole account, he should not be guided by their views, for the arbitrators award cannot be challenged except for clerical errors. Mr. Patwardhan has pointed out only three errors and plaintiff has pointed out none". The Commissioner made his report which supported the opinion of the arbitrators. The Court then considered any objections taken by the parties with regard to the three disputed items, apparently the same as those which were referred to the Commissioner by the previous order, and the Court reversed the report of the Commissioner on these three items and directed that the Commissioner already appointed should make calculations in the light of the judgment and find out what amount was really due and by whom to whom. The Commissioner then reported and eventually a decree was passed in favour of the defendants for Rs. 2,027-10- 0.

(2.) It appears to us that an absolutely wrong procedure has been followed by the Court from the commencement of these proceedings. The Court professed to act under para 12 of the Second Schedule. All questions of misconduct against the arbitrators had been dropped, and the only suggestions that could be made against the award should have been made under sub-paras (6) and (c) of para 12. But the Court in effect directed the Commissioner to sit in appeal on the award of the arbitrators with regard to the three disputed items; and when the Commissioner supported the decision of the arbitrators, the Court itself sat in appeal on the decision of the Commissioner. But the only powers the Court had under para 12(b) and (c) -were either to amend an obvious error which could be amended without affecting the decision, or to rectify a clerical mistake or an error arising from an accidental slip or omission. It cannot be said that the Court has amended an obvious error which could be amended without affecting such decision, because the decree of the Court was entirely different from the award of the arbitrators. Nor can it be said that the Court has rectified a clerical mistake or an error arisen from an accidental slip or omission. The Court went into the merits of the dispute as regards those three items and came to a conclusion of its own, with the result that a very distinct alteration was made in the award. When the parties agreed to have their disputes decided by their arbitrators, they agreed to accept the decision of the arbitrators whether it might be right or wrong, and the Court can only alter the award within the limits laid down by the Second Schedule. There is a recent decision-Shiam Lal v. Parshottam Das (1920) I.L.R. 42 All. 277, - where it was decided that "it is not a ground for remitting an award on matter referred to arbitration or for setting aside an award that the arbitrator has made a mistake in arithmetic, and apparently unintentionally has awarded a larger sum of money to be paid by one party to the other than he would have awarded if his attention had been directed to the mistake . This is a stronger case, because the arbitrators attention was directly drawn to the objections made to their award and they finally decided what their award should be after hearing those objections. In my opinion, therefore, the procedure followed by the trial Court was wrong

(3.) The decree must be set aside and a decree must be passed in terms of the award.