Decided on July 15,1983



Anil K.Sen, J. - (1.) This is an application under Article 227 of the Constitution of India at the instance of Bhagira-thi Co-operative Joint Farming Society (hereinafter referred to as the defendant) and is directed against an order dated October 12, 1982, passed by the West Bengal Co-operative Tribunal, dismissing an appeal under Section 134 of the West Bengal Co-operative Societies Act, 1973 (hereinafter referred to as the said Act), The opposite party Howrah Zilla Pari-shad (hereinafter referred to as the plaintiff) preferred a dispute under Section 86 of the said Act before the Assistant Registrar of Co-operative Societies, Howrah. The dispute so raised was to the effect that the plaintiff entered into a contract with the defendant cooperative society for purchase of 3,00,000 bricks from the society and they paid the price thereof being a sum of Rs. 34,500/- but the defendant society delivered only 1,74,000 pieces of bricks . and failed and neglected to deliver the balance 1,26,000 pieces of bricks. Hence, the plaintiff claimed that the defendant must deliver the said balance pieces of bricks or in the alternative pay damages to the plaintiff.
(2.) The dispute thus raised before the Assistant Registrar was referred to an arbitrator for adjudication on March 15, 1979. Notice of the said proceedings having been served upon the defendant society the defendant filed a written statement disputing the claim. The defence was to the effect that they had delivered the entire quantity of bricks deliverable under the contract. On evidence led, the arbitrator found that the defendant society had failed to furnish evidence to show that balance 1,26,000 bricks were delivered to the plaintiff as per contract. Hence the arbitrator made an award directing the defendant to deliver the said quantity of bricks within 6 months and further directed that in the event of default the plaintiff shall be at liberty to claim suitable damages in an appropriate Court of law. Such an award was made on April 3, 1982, and feeling aggrieved the defendant society preferred an appeal. The appellate tribunal reviewed the entire evidence and affirmed the finding of the arbitrator that contract to deliver 3,00,000 bricks being admitted, the defendant had failed to establish delivery of the balance 1,26,000 pieces of bricks as claimed by the defendant. The tribunal, therefore, dismissed the appeal and affirmed the award. Feeling aggrieved, the defendant society has now moved this Court with the aforesaid application under Article 227 of the Constitution.
(3.) The actual defence of the defendant society having been overruled by the twn Courts below upon a concurrent finding that they had failed to establish their defence that they had also delivered the balance 1,26,000 pieces of bricks. Mr. bose appearing in support of this application under Article 227 of the Constitution has raised two points including one which is a short point of law and which was not raised before the tribunal below. According to Mr. Bose, reference to the arbitrator having been made on March 15, 1979. the arbitrator could make an award only within a period of 3 months from the said date. Since no award was made within 3 months and since no extension of time was obtained from the next higher authority, the arbitrator became functus offi-cio so that the award made is a void award. Strong reliance is placed by Mr. Bose on the provisions of Section 87 Sub-sections (4) and (5) of the said Act, in contending that those provisions being mandatory, the arbitrator could not have retained any jurisdiction to make an award beyond the time prescribed. The other point raised by Mr. Bose is to the effect that the arbitrator should have assessed. the damages in the alternative and should not have relegated the parties to a suit for that.;

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