JHIRIGHAT NATIVE TEA CO LTD Vs. BGUPTA

JUDGEMENT

(1.) The respondent was the selling agent of the appellant Company at Calcutta. In that capacity he had from time to time received sums of money on behalf of the company. It is not necessary to recite the terms on which he obtained the-agency. He was also the financier of the company and in that capacity had from time to time advanced monies to the company. Difference as to the state of accounts arose between them. By a written submission signed on 11 September 1937 by the respondent and, by and on behalf of the company, by its secretary, Bidit Chandra Gupta. The matters in dispute were referred to the arbitration of Mr. Surendra Mohan Sen Gupta. Mr. Sen Gupta entered upon the reference and made his award on 15 October 1937. On 19 April 1938, just on the re-opening of the Court after the Easter vacation, the company filed an application, in the Court of the Subordinate Judge, Cachar, under para. 20 of Schedule 2, Civil P.C., for filing the award. A copy of the award was filed with that application. The respondent being served with notice of the said application filed his written statement on 20 June 1938. As the contest raised important points the learned District Judge transferred the case to his file and by his order dated 27 September 1938 dismissed the same.

(2.) On the pleadings 14 issues were framed. The 13 and the 14 were general issues. The remaining 12 issues raised specific points. The learned District Judge gave his judgment on the first 5 issues only. He held on issue 1 that the application was not maintainable as it was made under Para. 20, Sen. 2 and on issue 2 that the application to file the award could not be made to the Subordinate Judge. The ground for his decision was that the Arbitration Act (9 of 1899), was applicable to the case. He further held on issue 5 that the award was illegal and void as the "formalities of the Arbitration Act had not been observed." His last mentioned conclusion, according to him, followed as a corollary to his finding on issue 2. He further held that the submission was valid, that the company and the Board of Directors were competent to refer the dispute to arbitration and that the arbitrator had been legally appointed (issues 3 and 4). We think that the learned District Judge, in the view that he took on issues 1 and 2 ought not to have expressed his opinion on issues 3 to 5. He should have returned the application for being presented to the proper Court, leaving it open to the proper Court to decide these three issues as well as the other issues. As we think that the learned District Judge was right in his decision on issues 1 and 2 we set aside his decision on issues 3 to 5 and leave the subject-matter of these issues open between the parties. The determination of the question involved in issues 1 and 2 depend mainly upon the interpretation of Section 152, Companies Act. These issues as framed by the lower Court are: (1) Is the petition for filing the award maintainable? (2) Has this Court jurisdiction to hear the petition filed by the plaintiff or to pass judgment thereon?

(3.) The first and the third sub-sections of Section 152 are: (1) A company may by written agreement refer to arbitration, in accordance with the Arbitration Act, 1899, an existing or future difference between itself and any other company or person. (3) The provisions of the Arbitration Act, 1899, other than those restricting the application of the Act in respect of the subject-matter of the arbitration, shall apply to all arbitrations between companies and persons in pursuance of this Act.