STATE OF KERALA Vs. RAMACHANDRAN NAIR
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)THESE appeals are by the State of Kerala, the defendant in O. S. No. 127 of 1952 of the Subordinate Judge's Court, Trivandrum. A. S. No. 46 of 1960 is from the decree, dated 31st March 1959 and CM A. No. 6 of 1960 is from the order passed In the above suit on the same day rejecting the objections of the appellant to the award of the arbitrators. The respondent in the two appeals is the plaintiff in the suit. .
(2.)THE only question arising for decision in these appeals is whether the award passed by the arbitrators on the 22nd of April 1957 is liable to be set aside on the ground that the two arbitrators who gave an unanimous decision had misconducted themselves or the proceedings. THE appellant takes the stand that there is misconduct and that the award is liable to be set aside under clause (a) of S, 30 of the Arbitration Act, 1940. It is admitted that clauses (b) and (c) of S. 30 of the Arbitration Act have no application. THE court below negatived this contention and accepted the award.
The Registrar of the High Court of Travancore entered into an agreement, Ext. P 7, dated 28th February 1947, with the respondent for the printing of the records of the High Court and judgments and orders of the subordinate Courts, Pursuant to this agreement, the respondent commenced the printing of the records and continued to do so till the 1st of July 1949. On that day, the two States of Travancore and Cochin pursuant to the Covenant entered into by the two Rulers of the States merged, to form a new (b) that the contrast evidenced by Ext. P-7 got discharged by frustration; (c) that the arbitrators misconstrued the terms of Ext. P-7 and that they failed to note that the contract, Ext. P--7 is subject to r. 574 of the Civil Courts Guide, 1944; and (d) that the contract, Ext. P-7, is not binding on the state because Ext. P-7 was entered into by the Registrar of the High Court of travancore who, according to the appellant, had no authority to enter into a contract binding on the Government.
These contentions have been repeated before us by the learned Advocate-General who appeared for the appellant. We will deal first with objections (c) and (d) stated above. There is no substance in either of these contentions. Ext. P-7 specifically states in Clause. 12 that the agreement shall be in force for a period of ten years from the commencement of the work. R. 574 of the Civil Courts Guide provides that contracts entered into for the purpose of printing records shall be terminable at will on one month's notice by either side. We do not think that we should refer to this Rule at all in the light of the pleadings. There is a specific averment in Para. 5 of the plaint that the contract was to subsist for ten years and that it is not terminable during that period except in case of default contemplated in Clause. 8 of Ext. P-7. Though two written statements were filed by the appellant, one on 13th January 1953 and another on 3rd September 1953, no contention was raised that the period of ten years is untenable. Notwithstanding the absence of a plea that the ten years' term is untenable, the arbitrators framed an issue relating to this contention, considered the question and came to the conclusion that the term of ten years embodied in Ext. P-7 is an essential term of the contract necessitated by the exigencies of the situation and it was within the discretion of the High Court to enter into a contract with such a term. The sanction accorded by the State to the proposal made by the respondent, Ext. P-6, was relied on to show that the contract was subject to the provisions of the Civil Courts Guide and, therefore, subject to R. 574. In the light of the specific provision in Ext. P-7 that the agreement was to endure for a period of ten years, this contention is untenable and we do not think that the arbitrators erred in any manner in construing Ext. P-6 as providing that the respondent will be bound by the Rule's of the Civil Courts Guide only in regard to the matter of printing and transmission of records.
(3.)THE plea that the Registrar was incompetent to enter into a contract stipulating a term often years was not raised even before the arbitrators. Needless to say that they could not have misconducted themselves or the proceedings in not considering that plea.
Passing on to the first of the main contentions raised by the learned Advocate-General, there can be no doubt that the covenant entered into by the Rulers of Travancore and Cochin for the formation of the united State of Travancore and Cochin constituted an act of State. The respondent will not, therefore, be justified in placing any reliance on Art. 3 (b) of that Covenant which provides that: "all duties and obligations of the Ruler of either of the Covenanting States pertaining or incidental to the Government of that state shall devolve on the United State, and shall be discharged by it". This position cannot be assailed. The Supreme Court has pronounced on the subject more than once. It will be sufficient to refer to two of those decisions, one in Dalmia Dadri Cement Co. Ltd. v. Commissioner of income-tax AIR. 1958 SC. 816, and the other in Promod Chandra Deb v. The State of Orissa AIR. 1962 SC. 1288.
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