BENGAL SILK MILLS CO LTD Vs. AISHA ARIFF

JUDGEMENT

(1.) This is an appeal against the judgment of Das J. granting the respondents application to set aside an award made by Ameer Ali J. as umpire in an arbitration under two agreements, both dated 17 March 1941, made between the parties, by which they referred to arbitration three suits instituted in this Court. Each agreement, in Clause 6, provides as follows: That if there is any difference between the arbitrators such difference and if any matter is not decided by the arbitrators such matter shall be decided by His Lordship Mr. Justice Ameer Ali.

(2.) On behalf of the appellant, the Bengal Silk Mills Co. Ltd., it is contended that (a) Ameer Ali J. was not appointed an umpire by the two arbitration agreements, (b) he did not dispose of the matters which "came before him in the capacity of an umpire, but as a Judge of this Court acting extra cursum curiae with the agreement and consent of all parties, and (c) if his disposal was as umpire the application to set aside the award was incompetent as it was made before the award has been filed in Court.

(3.) In January 1937 one Golam Hossain Cassim Ariff died leaving a will by which he appointed his widow, Aisha, and his two sons, Ibrahim and Ismail, as his executrix and executors, to whom probate was granted in August 1989. On 2l December, 1939, Aisha and Ismail the executrix and one executor, the other executor Ibrahim, not joining as a plaintiff, instituted Suit No. 2261 of 1939 against the Bengal Silk Mills Co. Ltd., claiming Rs. 2,77,010 alleged to have been lent by the testator to the company. On 2 January, 1940, the company instituted Suit No. 1 of 1940 against the executrix and the two executors, as representing the testator's estate to recover a sum of Rs. 6,00,000 alleged to have been wrongly withdrawn and misappropriated by the testator from the company. On 2 January, 1940, Aisha, the executrix, and Ismail, one executor, the other executor not joining, instituted Suit No. 4 of 1940 against a number of relations as mutwallis of a wakf, created by the testator, claiming Rs. 19,093, money alleged to have been lent to the wakf by the testator. The company had obtained a decree against Aisha, in her personal capacity, for rent at the rate of Rs. 350 per month, in respect of some premises belonging to the company. Against this decree Aisha preferred Appeal No. 484 of 1940, which was pending. The testator's son, and one of his executors, Ibrahim, died in October 1940, and his widow instituted an administration Suit No. 213 of 1941, against the heirs of the testator and against his estate. On 2nd December, 1941, by a preliminary decree in the administration suit Mr. S.K. Sawday was appointed Receiver in that suit with the usual powers.