HAJI AHMED HAJI HASSAM Vs. ESSAJI TAJBHOY

JUDGEMENT

(1.) This suit was filed on the nth of October 1910 as a Short Cause. The plaintiff is the mortgagee of several immoveable properties belonging to the defendant and he seeks to recover in this suit Rs. 5,69,166-8-9 with further interest from the 6th of October 1910. In his plaint the plaintiff relies on an alleged adjustment of account which he says took place on the 31st of August 1910 whereby a sum of Rs. 5,71,770-2-0 was found to be due by the defendant to the plaintiff. The defendant has put in a long written statement whereby he disputes the genuineness of the accounts of the plaintiff and states that the adjustment was obtained from him by false and fraudulent representations and is not binding on him and counter-claims that the plaintiff may be ordered to recovery the mortgaged properties to him on payment of what may be found due to the plaintiff on proper accounts being taken by and under the directions of this Court. To his written statement he annexes a formidable list of what he calls " particulars of false and fraudulent items in the plaintiff s books."

(2.) It was at first arranged between the parties that the matter should be referred to the arbitration of Mr. Lowndes but that arrangement having fallen through, on the 16th of March 1911 the parties obtained a Consent Order from the Court whereby all matters in dispute in the suit were referred to the arbitration of two Parsee gentlemen with a proviso that in case the arbitrators did not agree upon their award, the matters in dispute between the parties should stand referred to Mr. Kaikhushro Framji Modi as umpire. The arbitrators appointed by the order were unable to agree and the matters in dispute were referred to Mr. Modi as umpire.

(3.) The first meeting was held by the umpire on the 8th of September 1911 and the investigation of the accounts continued before him till the middle of March last when there was a serious split between the respective parties and Mr. Dinsha Jijibhoy who represented the defendant before the umpire retired from the reference alleging that gross breach of faith was committed on the plaintiff s part and that the umpire had acted in direct contravention of the order of the Court and intimated that his client was no longer willing to proceed with the reference and revoked the umpire s authority in the matter. The umpire, however, proceeded ex parte and on the 28th of March, six days after the defendant s attorney retired, made and published his award whereby he adjudged that Rs. 7,06,639 were due by the defendant on the 25th of March 1912 and he awarded that sum to the plaintiff with further interest at 9-/^ per annum and directed that the defendant should pay the plaintiff s cost of the suit and of the reference before the arbitrators and umpire including the fees paid both to the arbitrators and the umpire.