MUKUNDALAL PAKRASHI Vs. PROKASH CHANDRA PAKRASHI

JUDGEMENT

(1.) This is an appeal by defendant 1 against an order made by the Subordinate Judge, First Court, Alipur, dated 15 September 1937 directing an award to be filed under Schedule 2, Rule 21, Civil P.C. Four points were urged by Mr. Chakravarty on behalf of the appellant in support of this appeal: (1) that there had been misconduct on the part of the arbitrators within the meaning of Rule 15 (1)(a) of Schedule 2 of the Code (2) that the illegality of the award is apparent on the face of it (Rule 14(c) of Schedule 2); (3) that the award was bad as it left undetermined some of the matters which were referred to arbitration; and (4) that it determined some matters not referred to arbitration (Rule 14(a) of Schedule 2). The argument in support of the first point is twofold: (1) that the appellant was not allowed to cross-examine in full the wife of the plaintiff who was examined as a witness before the arbitrators on behalf of the plaintiff; and (2) that one of the arbitrators, viz. Chandu Baboo, did not consider the last statement of defendant 2. As regards the first branch of the argument it appears that this objection was not taken in the written statement. It is not to be found in the grounds of appeal to this Court. The only evidence in support of this ground is that of the appellant himself, but his evidence is inconsistent with the evidence of two of the arbitrators, Chandra Kishore Chakravarty and Rai Sahib Ananda Chandra Ganguly. The learned Judge has believed their evidence and has disbelieved the evidence of the appellant. I see no reason to differ from the conclusion of the learned Judge on this point. This contention therefore is overruled.

(2.) As regards the second branch of the argument the complaint of the appellant is that Chandra Babu did not consider the last statement of defendant 2 at all. This contention has no force as the letters Exs. 15 and 16 clearly indicate that ha did so. There has been therefore no misconduct on the part of the arbitrators as contemplated by Rule 15(1)(a) of Schedule 2 of the Code. As regards the second point urged in support of the appeal, the first) argument of the appellant is that the award is illegal on the face of it as the supplementary award which has been directed to be filed was passed by the arbitrators at a time when they were functus office. It was argued by the learned advocate that after the first award was published the arbitrators had no power to issue a second award, and, consequently, the second award is illegal on the face of it. This contention has no substance. The first award shows that all the matters referred to arbitration were not and could not be decided by the first award as the parties were not prepared with their statements regarding some of the matters in controversy. The first award definitely states that there will be a supplementary award. In pursuance of this reservation in the first award, the second award was given. The two awards taken together therefore make the complete, award disposing of all the disputes referred to arbitration.

(3.) The next argument of the learned advocate is that the award is illegal on the face of it as all the arbitrators did not sign the award on the same date. It appears however that the decision of the arbitrators was arrived at after joint deliberation and that the award was prepared in accordance with the said decision. The mere fact that one of the arbitrators signed one day later cannot make the award illegal. As regards the third point raised in support of this appeal it appears that this is covered by ground No. 39 of the grounds of appeal. It appears however from the paper book of this case that this ground was abandoned by the appellant after the filing of the appeal. It is no longer therefore open to the appellant to raise this ground now before us.