DAWOODBHAI ABDULKADER Vs. ABDULKADER ISMAILJI

JUDGEMENT

(1.) This is a chamber summons taken out by the defendant for an order that all further proceedings in the suit may be stayed in order to enable the parties to refer the matter in dispute to arbitration according to their agreement. The plaintiff was the sub partner of the defendant in a certain business of manufacturing matches under the terms of a deed of sub- partnership dated 25 May 1925 and the said deed incorporated all. The articles, covenants, conditions and obligations contained in the principal partnership agreement between the defendant and his partner, which were not inconsistent with the terms of the agreement, The agreement between the defendant and his partner was executed immediately before the deed of sub-partnership on the same day, i.e. 25 May 1925 Clause 20 of the agreement provides inter alia that any dispute or difference arising between the partners in regard to the construction of any of the articles contained in the agreement or to any division, act or things relating to the said partnership or the affairs thereof shall be referred to arbitration in the manner therein mentioned. The period of duration under the agreement as well as the sub- partnership deed was from 1 April 1925 to 31 March 1927.

(2.) On 17 April 1930, the plaintiff through his solicitors wrote to the defendant stating that the accounts of the partnership which had been made up to 31 January 1928, showed that a large sum was due by the defendant to the plaintiff, but that defendant had failed to render an account to the plaintiff. The plaintiff called upon the defendant to make up the accounts and to pay to him the amount found due at the foot thereof. The defendant neither sent any reply to the said letter nor made up the account, and the plaintiff thereupon filed this suit on 20 June 1928, praying that the defendant may be ordered to render a true and complete account of the profits earned by the partnership business and of the amount due to the plaintiff, and to pay the same to him. Nearly two months later the defendant by his attorneys letter dated 18th August 1930, called upon the plaintiffs not to proceed with the suit, and "to refer the matter in dispute to arbitration" in terms of Clause 20 of the agreement. What the matter in dispute between the parties was has not bean sat out by the defendant; but he took out the chamber summons on 19 August 1930, for the stay of the suit. Even in the affidavit in support of the summons the matter in dispute has not been 19 out, nor explained.

(3.) It is laid down in Halsbury's Laws of England, Vol. 1, para. 945(at p. 444) that the subject matter of every reference to arbitration by consent out of Court must be some difference or dispute arising between the parties. Section 4, Arbitration Act 1899, defines submission as a written agreement to submit present or future differences to arbitration; and the forms of submission given in Schedule 2 to the Act begin by saying: "Whereas differences have arisen and are still, subsisting" bet wean the parties. The existence of a difference, or dispute is therefore an essential condition for the arbitrator's jurisdiction: sea the case of Uttam Chand, Saligram V/s. Jewa Mamooji [1919] 45 Cal. 534. If there is no dispute, there can be no right to demand arbitration. The Court must therefore be satisfied that there is some rail point of difference which has to be submitted to arbitration. In each case the arbitration must be on a point of real difference. In a decision of the House of Lords in L. & N.W. and G.W. Joint Ry. Co. V/s. J.H. Billington, Ltd. (2) the Railway Act empowered the company to charge a reasonable sum for services rendered to a trader, and enacted that "any difference arising under this section shill be determined by an arbitrator to be appointed any the lord of Trade."