VISHWAS BALWANT DAVARE Vs. BHALOHANDRA GANESH THAKAR

JUDGEMENT

(1.) The applicant V. B. Davare was a gumasta in a shop belonging to the opponent B. G. Thakar, They had a dispute about account, and on April 13, 1923, they both signed a submission paper referring the dispute to the arbitration of two persons, M. G. Thakar, the opponent's brother, and M. G. Sathe, a friend of the applicant. The submission paper provided that in the event of difference of opinion between the arbitrators the final decision was to be given by Mr. N. C. Kelkar. It appears that the arbitrators never met and no steps were taken to carry out the arbitration, until on March 18, 1926, Thakar made an application to the First Class Subordinate Judge Poona under para 17 of Schedule II of the Civil Procedure Code to have the agreement to refer filed in Court. Davare opposed this on various grounds, alleging inter alia that the reference had lapsed owing to Thakar's laches in not acting upon it, and that the arbitrators had informed theparties of their unwillingness to act. The Subordinate Judge disallowed the objections and decided that the reference should be filed. As M. G. Sathe, one of the arbitrators named in the agreement, stated that he was unwilling to act and the other was the plaintiff's brother the Court appointed Mr. Kelkar (the umpire named in the agreement) sole arbitrator to decide the dispute. This order was confirmed on appeal by the Assistant Judge. The defendant Davare has applied to this Court in revision.

(2.) Mr. Desai who appears for him contends that the Subordinate Judge acted without jurisdiction in two respects, firstly, in appointing Mr. Kelkar sole arbitrator, and, secondly, in ordering the agreement to refer to be filed when it was no longer subsisting.

(3.) Neither the judgment of the trial Court nor that of the Assistant Judge make it clear under what provision of Schedule II of the Code the appointment of Mr. Kelkar purports to have been made. The Assistant Judge has referred to para 9, which states the circumstances in which an umpire may arbitrate in lieu of the arbitrators, and he appears to have thought that it would have been open to Mr. Kelkar to settle the dispute without any order from the Court. That is very doubtful, however, because the agreement to refer did not fix any time for making the award, and the arbitrators had not given the notice referred to in para 9. Anyhow this paragraph has nothing to do with the powers of the Court to appoint an arbitrator. It seems that the appointment could only be made either under para. 17, Clause (4), or under para, 5, Clause (1)(b). Para. 17, Clause (4), is as follows: Where no sufficient cause is shown, the Court shall order the aggrement to be filed, and shall make an order of reference to the arbitrator appointed in accordance with the provisions of the agreement or, if there is no such provision and the parties cannot agree, the Court may appoint an arbitrator.