SETH DOOLY CHAND Vs. MAMUJI MUSAJI

JUDGEMENT

(1.) In this case the action was brought by the plaintiff against certain persons who were the members of a partnership, one of whom were called Yusnff Musaji, for recovering certain moneys. Yusuff Musaji did not appear in the suit. During the course of the proceedings an order was made on the 19th of March 1915, "that all matters in difference between the parties in this suit including the question of costs thereof be referred to the final decision of Tribhuban Hira Chand of No. 9, Amratolla Street, in the town of Calcutta, who is to make his award in writing and submit the same to this Court together with all proceedings, depositions and exhibits in this suit within three months."

(2.) This order was made by the consent of the defendants with the exception of two, whose consent had not been obtained, and one of these two defendants was Yusuff Musaji Saleji. In pursuance of that order the arbitrator entered upon the arbitration and made his award, which was filed on the 22nd of December 1915. In that award he found and awarded that the plaintiff was entitled to a decree against the defendants for the sum of Rs. 6,900. It is to be noticed that in making his award, he awarded not only against those defendants who bad consented to the order of reference being made, but also against the two defendants, one of whom was Yusuff Musaji, who had not consented to the order of reference. Yusuff made an application on the 12th of January 1916 to the learned Judge sitting on the original side, asking that the award should be set aside: and, the learned Judge after hearing the parties came to the conclusion that the award should be set aside, and the form of the decree which was drawn up in pursuance of his judgment was that the award should be taken off the file and that it should be set aside. The basis of the learned Judge s judgment was that inasmuch as this was an arbitration undertaken under the order of the Court, that order being made under the provisions contained in the Second Schedule of the Civil Procedure Code, it could not be a valid reference, unless all the parties interested had agreed to it. Now, two main grounds have been argued before us. The learned Counsel for the appellant has argued, first, that even if all the parties interested in the matter. had not consented to the order, that did not make the reference invalid or illegal as regards those defendants who had consented to the reference. This is the first point I intend to deal with in my judgment.

(3.) Now, the words of the clause (Clause 1 of Section 1) in the Second Schedule are as follows: "Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may, at any time before judgment is pronounced, apply to the Court for an order of reference." In my judgment that clause means this---Before the Court can have jurisdiction to make an order of reference under that clause, all the parties interested must agree: and if all the parties interested do not agree, then the Court has no jurisdiction to make the order of reference and the order of reference is invalid not only against those who have not agreed but also against those who have agreed. Then the question arises whether the applicant in this case, Yusuff, was a party who was interested. As I have already said, it was an action brought against Yusuff and other defendants, who were members of this partnership. I do not think I am wronging the learned Counsel for the appellant when I say that he really did not attempt to argue that Yusuff was not an interested party. Yusuff obviously was one who was a defendant in the action and who was alleged to be a member of the firm: and, the fact that the arbitrator had included him in the award as one of the persons who was to pay the sum of Rs. 6,900 to the plaintiff is pretty cogent evidence that Yusuff was a party interested in the subject-matter of the dispute. Therefore, it is clear that all the parties interested within the meaning of this clause did not agree, and, therefore, the Court had no jurisdiction to make the order of reference under that clause. Therefore, the reference was invalid.