MOHENDRA NATH DAS Vs. MOHI LAL KOLEY

JUDGEMENT

(1.) We are invited in this Rule to set aside an order of dismissal of an application to enforce a private award. There were differences between the plaintiffs and the defendants regarding the boundary between their respective homesteads. On the 17th November 1914, they appointed five persons as arbitrators to settle the dispute. The arbitrators made their award on the 6th July 1915. By their award they fixed the boundary line between the homesteads and directed the defendants to pay to the plaintiffs Rs. 620 as one-half share of the remuneration and travelling expenses of one of the arbitrators, which had been paid in full by the plaintiffs. The plaintiffs thereupon applied under paragraph 20 of the Second Schedule to the Civil Procedure Code, 1908, to enforce the award. The Court of first instance dismissed the application, on the ground that the arbitrators acted in excess of their authority when they directed the defendants to pay to the plaintiffs the sum mentioned in the award. Upon appeal the Subordinate Judge has taken the same view. He has further held that the award is open to objection also on the ground that the arbitrators did not give written notice of their meetings to the second defendant. In our opinion, the order of the Subordinate Judge cannot be sustained.

(2.) It is plain that the absence of written notice to one of the defendants does not necessarily invalidate the proceedings. We are not prepared to accept the contention that under the terms of the agreement of reference the parties were entitled to written notice. The agreement states that the arbitrators would be entitled to proceed ex parte if any of the parties did not enter appearance notwithstanding the service of written notice. This provision, however, is not equivalent to a condition that if the arbitrators proceeded with the arbitration and all the parties had knowledge of these proceedings, still the award would be invalidated merely because one of the parties did not receive a written notice. The Subordinate Judge has found that the second defendant had verbal notice of the proceedings and yet did not enter appearance. In such circumstances, we cannot hold that the defendant may challenge the validity of the award on the ground that a written notice was not served on him. [Oswald v. Earl Grey (1855) 24 L.J.Q.B. 69 : 101 R.R. 895.] In our opinion he is as much bound by the award as if a written notice had been served upon him.

(3.) The question next arises, whether the award is invalid because the arbitrators made an order for payment of costs. It is not necessary for our present purpose to determine whether they did or did not act in excess of their authority when they made an order for costs. It has been held in the case of Mohanlal v. Nathuram 1 B.L.R. (O.C.J.) 144 : 1 Ind. Dec. (N.S.) 374 that where a suit has been referred to arbitrators, they have authority to deal with the costs of the reference and the award. We need not enquire whether this principle can reasonably be extended to private references to arbitration. But even if it be assumed that the order for costs was made without jurisdiction, it is plain that this does not invalidate the whole award. The decision in Sabitree Dabi v. Pramoda Prosad Chatterjee 19 Ind. Dec. 94 : 21 C.L.J. 248 at p. 252 does not really assist the contention of the opposite party. That case no doubt shows that under paragraph 21 of the Second Schedule to the Civil Procedure Code of 1908, the Court is competent to direct a private award to be filed if the grounds mentioned in paragraphs 14 and 15 are not established; if such grounds are established the Court is bound to refuse to file the award. Now paragraph 14(a) provides that an objection may successfully be taken to the validity of an awarded where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration, unless such matter can be separated without affecting the determination of the matters referred. Consequently where a matter has been left undetermined though referred to arbitration or a matter has been determined though not referred to arbitration, and such matter can be separated without affecting the determination of the matters referred, objection to the whole award cannot be sustained. The present case is precisely of that description. Even if the order for costs be expunged, the remainder of the award remains unaffected, and the petitioner is content to have the award enforced to that extent. It follows accordingly that neither of the grounds on which the award has been rejected by the Subordinate Judge can be sustained.