PONNAMMA Vs. MARAMPUDI KOTAMMA

JUDGEMENT

(1.) In the trial Court the plaintiff claimed a declaration that she was entitled to the plaint scheduled property and for delivery of possession of it and other reliefs. The defendants set up, amongst other defences, the defence that, disputes having arisen between the parties in or about February, 1928, with regard to the suit property, the matter was referred by them to a caste panchayat which made an award in favour of the defendants holding that the property belonged exclusively to them and pleaded that the plaintiff was bound by that award. The award of the panchayat having been proved at the trial through the leading headman of the caste panchayat, the learned City Civil Judge held that the plaintiff could not raise the same question in the suit having voluntarily submitted her case to arbitration and obtained an award. The plaintiff appeals.

(2.) It is argued here that there was no written submission to arbitration and that, therefore, the arbitration was not valid or binding upon the parties to it. It is conceded by Mr. Rajah Aiyar for the appellant that, if the arbitration had been in the mofussil, his client would have been bound by the award and that her suit in respect of the same matter arbitrated upon would not be maintainable. But his contention is that the arbitration in question was one to which the Indian Arbitration Act (IX of 1899) applies. That Act requires that there should be a written submission to arbitration. It is common ground that the provisions of the Indian Arbitration Act only apply to the Presidency Towns. That is made clear by Section 2 of the Act. If therefore, the Act applies to a private arbitration such as this, then it is clear that a written submission to arbitration is required. It is contended by Mr. Rajah Aiyar that the Act applies to every arbitration held in Madras. On the other hand, it is contended by the respondents that the Act applies only to arbitrations started by a written submission to arbitration before a suit is filed and without the intervention of the Court and that in all other cases the Civil Procedure Code applies. In support of his argument Mr. Rajah Aiyar referred to Rukhanbai V/s. Adamji (1908) I.L.R. 33 Bom. 69. There the parties to an arbitration suit consented to it being referred to the Commissioner to take the usual accounts and to determine their respective shares. On appearing before the Assistant Commissioner the parties came to an understanding that the matter in dispute should be left to be decided by the Assistant Commissioner in a summary manner without going into formal evidence beyond the accounts, objections and surcharges filed before him. There was no written submission to arbitration. Beaman, J., held that the Indian Arbitration Act applied to such an arbitration; that, as there had been no written submission to arbitration as provided by Section 4 of the Act, there had been no legal and valid reference to arbitration and the Assistant Commissioner's award had no legal foundation and could therefore have no legal consequences; and that, as there had been no reference to arbitration and no award, there could be no adjustment to give effect to under Section 375 of the Civil Procedure Code, which was what the plaintiff applied for. In my view, the Indian Arbitration Act is not a comprehensive Act and does not include all arbitrations and therefore the view taken by Beaman, J., in Rukhanbai V/s. Adamji (1908) I.L.R. 33 Bom. 69 is not the correct one. It is very probable that the Indian Arbitration Act was designed to suit the convenience of the commercial community in the Presidency Towns, and in order to enable them to decide disputes between themselves without the intervention of the Court and the Act therefore provides for the procedure to be adopted in such cases. It is quite clear that the Act is only intended to deal with cases where there has been a written agreement to submit the differences to arbitration. The Act throughout refers to submissions and a submission is defined in Section 4(b) as "a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not". After such a written submission the procedure provides for the intervention of the Court which in the Presidency Towns means the High Court. Courts here have always recognised such informal arbitrations as here and the second schedule to the Civil P. C. by Clause 20 provides for arbitrations without the intervention of the Court. It is conceded that that clause refers to arbitrations whether there has been a written submission to arbitration or not; and it is difficult to see why such arbitrations in the Presidency Towns should be required to originate in a written submission whereas in the mofussil no such written submission is required; and there is abundant authority in support of the principle that an award under such circumstances in the mofussil can be relied upon as a defence in a suit relating to the subject-matter dealt with by it vide Muhammad Newaz Khan V/s. Alam Khan (1891) L.R. 18 I.A. 73 : I.L.R. 18 C. 414 (P.C.) and indeed it is not disputed by Mr. Rajah Aiyar why should there be any distinction between those cases and informal arbitrations in the Presidency Towns? The Indian Arbitration Act is almost word for word the English Arbitration Act and under the English Arbitration Act such an award is not invalid. In the 12 Edition of Russell on "Arbitration and Award" it is stated at p. 336: A parol submission is generally perfectly valid but it is not a submission to which the Arbitration Act applies.

(3.) In the footnote to paragraph 1071 of Vol. I (2nd Edition) of Halsbury's Laws of England dealing with references by consent out of Court it is stated: The provisions of the Arbitration Act, 1889, are for the most part inapplicable where the submission is oral; see Section 27, which defines a submission for the purposes of the Act as a written agreement . Consequently, where the submission is oral, the arbitration is governed by the common law.