MANINDRA NATH MANDAL Vs. MOHANUNDA ROY

JUDGEMENT

(1.) This is an appeal under Section 104 of the Code of Civil Procedure of 1908, against an order made under Clause 3 of the second Schedule of the Code. It appears that the parties to this proceeding made a submission to arbitration on the 2nd August 1907. The arbitrators gave their award on the 21st March 1908. On the 15th May following, the respondents before us applied to the Court under Clause 20 of the second Schedule of the Code to file the award. Objections were taken by the appellants, and were of all conceivable descriptions. The Subordinate Judge has considered these in detail and overruled every one of them. The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed substantially on eight grounds; namely, first, that there was no valid submission to arbitration, because by the fraud of the respondents, the name of Babu Kuloda Prosad Mukerjee was inserted in the submission, whereas it had been agreed upon between the parties that the matters in difference between them should be referred to the arbitration of one gentleman only; secondly, that the arbitrators had decided matters not included in the submission; thirdly, that the award is vague and uncertain and also defective, because the arbitrators had left undecided matters included in the submission; fourthly, that the arbitrators were guilty of misconduct, inasmuch as one of them received a document in the absence of his colleague and of the opposite party; fifthly, that the arbitrators have improperly refused to take important evidence; sixthly, that the award was void, because it was not signed by both the arbitrators at the same time and place; seventhly, that the reference to arbitration was void, because there was no provision made therein for the appointment of an umpire, and eighthly, that the award was void, because it had been made after the death of one of the parties to the submission.

(2.) In support of the first ground, it has been contended that the agreement between the parties was that the matters in difference between them should be referred to the arbitration of one person only, namely, Babu Benode Behary Mondal, and that after this had been settled, the plaintiffs-respondents fraudulently inserted in the instrument of submission without the knowledge of the appellants, the name of Babu Kuloda Prosad Mukerjee. The Subordinate Judge has examined the evidence on this part of the case, and has come to the conclusion that the allegation of the appellants has not been established. He has relied upon one very material circumstance; namely, that the appellants, without any objection, submitted to the arbitration of both the gentlemen named. This circumstance shows conclusively that the allegation of the plaintiffs is not true. The conduct of the appellant further shows that if there was any fraud on the part of the respondent, the appellant waived all objections on this ground even after they had been apprised of what had happened. The explanation submitted by the learned Vakil for the appellants is that after the defendants became aware that the name of Babu Kuloda Prosad Mukerjee had been entered in the deed of submission, they did not think it wise to make any protest and accepted the position that he was a validly appointed arbitrator. In our opinion, if the facts are such as stated by the learned Vakil for the appellants, it is no longer open to them to repudiate the position they deliberately took up before the arbitrator Sheonath v. Ramnath 10 M.I.A. 413 at p. 433 : 5 W.R. (P.C.) 21 : 1 Ind. Jur. (N.S.) 161. The first ground is, therefore, unsustainable. 2. In so far as the second objection taken by the appellants is concerned, it is in fact contradictory in part to the third objection urged on their behalf. It has been argued that the parties agreed to refer to the arbitrators the question of the disputes in respect of certain conveyances and it was never their intention to submit to the arbitrators all disputes between them relating to the estate of Kartik Prosad and Krishna Prosad. The terms of the submission, however, negative this contention. The document of submission states clearly that the arbitrators were appointed to settle the dispute between the parties regarding the properties left by Kartik Prosad and Krishna Prosad, and, in the schedule to the instrument, the whole of the properties left by these two persons is described as the subject- matter of the arbitration. There is no substance, therefore, in the second objection.

(3.) In so far as the third objection is concerned, the argument is divisible into two branches. It has been contended, in the first place, that the award is defective, because the arbitrators have omitted to decide the matter in controversy between the parties in respect of the three specified properties. In so far as one of these properties is concerned, namely, the homestead and the adjacent lands, the matter has been decided by the arbitrators, but apparently in respect of the other two properties, namely Baymora and some jungle lands, the matter has not been expressly decided by the arbitrators. On this footing1 it has been argued by the learned Vakil for the appellants, that the award is bad in its entirety, because the arbitrators have left undecided the question relating to a portion of the matters in difference. But, it must be observed in this connection that it does not appear to have been brought to the notice of the arbitrators that there was any dispute between the parties with regard to these properties. The objection, undoubtedly, was not taken before the Subordinate Judge in the Court below, when the award was assailed on numerous other grounds. Consequently, the principle laid down in the cases of Middleton v. Weeks (1613) Cro. Jac. 200 and Elson v. Rolfe (1805) 2 Smith 459 is applicable. That principle is that no objection can be made to the award if the arbitrator determines allegations brought before his notice, though there are other matters within the scope of the submission to which his attention has not been drawn. In other words, as stated in the case of Rees v. Waters (1847) 16 M. & W. 263 : 4 D. & L. 567 in order to invalidate an award for not deciding a particular question, it must be established that the point was specifically stated and brought to the notice of the arbitrators. The first branch of the third contention, therefore, fails.