SHIVJI POONJA KOTHARI Vs. RAMJIMAL BABULAL

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Mirza. The matter has got into a considerable state of confusion owing to the parties not having complied with the rules as to procedure. The rules of procedure are made in the long run for the convenience and benefit of litigants. Occasionally expense and delay may be involved in complying with the rules, but if the parties do not comply with the rules, they must take the consequences.

(2.) The material facts are these. The appellants and respondents are both members of the Marwari Chamber of Commerce, and as such they are bound under the rules to submit all disputes between them to arbitration. They had a dispute, and the matter was referred to the arbitration of two arbitrators. The arbitrators were unable to make their award within the fifteen days required under the rules, and they applied to the chairman on January 18, 1929, to extend the time. The time was in fact extended by the vice-chairman. On January 27, there was a further application to the chairman to extend the time, and again an extension was given by the vice-chairman. On February 1, within the extended time, they made an award. On August 2, the award was filed in Court under the Indian Arbitration Act, and on the 16 notice was given to the appellants of the filing. On August 26, the appellants presented a petition to set aside the award, that petition being based mainly on the ground that there was in fact no dispute which was properly referable to the arbitrators, and they did not take the point in the petition that the time had been extended by the vice-chairman whereas it ought to have been extended by the chairman, and therefore the award was out of time and on its face bad. On October 7, however, the appellants solicitors wrote a letter to the respondents solicitors in which in the last paragraph they gave notice that their clients would, at the hearing of the petition, contend that the award was bad as having been made after the time limited for the same under the by-law of the Marwari Chamber of Commerce Ltd., and that the arbitrators were functus officio on the expiry of fifteen days from the date of their appointment. Then they say : " If necessary, we shall apply to Court for the amendment of the petition so as to include such ground therein ". In fact they did not apply to Court for the amendment of the petition, and that was the first irregularity. The respondents did not reply to that letter, but on the next day the matter came on for hearing, and a direction was given that it should stand over to the following Tuesday, respondents to furnish a copy of affidavit by noon on the Saturday. That certainly looks as if the respondents were asking to put in an affidavit in answer to the point raised in the letter written to them on the previous day. The matter was again adjourned on October 15 until November 18 and on November 16 the respondents put in an affidavit by the Secretary of the Marwari Chamber of Commerce stating that the vice-chairman had given an extension of time because the chairman was absent from Bombay. The matter then came on for hearing on November 18, and counsel for the respondents apparently asked the Court itself to extend the time, if in fact the award was out of time and the order of the learned Judge was : " I do enlarge the time for making the award till the 1 day of February 1929, and I do further order that the petition be and it is hereby dismissed". Now, there was no substantive application to the learned Judge to extend the time, and the appellants say that they were taken by surprise.

(3.) Rule S73 of the rules of this Court provides that all applications under the Indian Arbitration Act, other than under Section 19, shall be made by petition except as thereinafter otherwise provided; and Rule 877 provides that every petition or a copy thereof shall specify the persons affected thereby, and upon whom notice has to be served as thereinafter provided. Then Rule 378 provides for the service of the notice on persons specified in the petition. In my view if an application was to be made to the learned Judge to extend the time for making the award, particularly us the application was long after the award had in fact been made, there ought to have been a substantive application by petition which should have bean setved on the other side, and the matter could then have been argued.