- (1.) On 28-1-1948 the appellant, Khumba Mawji entered into an agreement with the respondent, the Dominion of India (as it then was) to manufacture and supply to the Bengal Assam Railway, stone boulders and belast from Chutiapara quarry. The agreement was entered into at Calcutta, though the work was to be carried out in Assam. It was a term of the agreement that if any differences arose between the parties, they were to be referred to the arbitration of two persons, one to be nominated by each side, and that if the arbitrators were not able to agree, the matter was to be decided by an umpire to be nominated by both the arbitrators. Differences having, in fact arisen, the dispute was referred to two arbitrators and on their disagreement the matter went up to an umpire, one Mr. P. C. Chowdhury. The umpire made two awards on or about 20-7-1949 in favour of the appellant. By one of them he directed a sum of Rs. 3,67,000 to be paid by the respondent to the appellant on or before 19-8-1949 with interest thereafter at 6 per cent, per annum in case of default. By the other award, he directed a sum of Rs. 83,000 to be similarly paid by the respondent to the appellant. The umpire is said to have made over each of the two awards, in original, to each of the parties. On 10-8-1949 the respondent filed an application under S. 14, sub-s. (2), Arbitration Act, 1940, before the Court of the Subordinate Judge of Gauhati in Assam praying that the umpire, Mr. Chowdhury, might be directed to file both the awards in Court so that the petitioner might get an opportunity for filing objections thereto. On this application notice was issued to the umpire to file the awards into that Court before 24-8-1949. The umpire sent a letter dated 18-8-1949 to the Subordinate Judge, which is as, follows with copies of the awards; Dear Sir, With reference to your notice in money suit No. 83 of 1949 requiring me to submit the awards made by me in the above mentioned dispute on 20-7-1949 I beg to submit that the two awards were made and signed by me in the presence of the parties and handed over to me on 20-7-1949. As directed by you I am sending herewith copies of the same signed by me. On the back of each of these copies occurs the receipt of the parties to the awards." On receipt thereof, the Subordinate Judge trade an order on 24-8-1949 in the following terms: "Notice on the Umpire served. Seen his report forwarding copies of the award of which the originals are said to have been made over to the parties. Applicant to file his copy on 3-9-1949." On 3-9-1949 the respondent filed the awards which were handed over to it by the umpire, and the matter was being proceeded with, by issue of further notices and filing of objections in the Court of the Subordinate Judge, Gauhati.
(2.) Meanwhile on 17-8-1949, i.e., a week after the respondent made its first application in the Gauhati Court, the appellant's solicitors, Messrs. Mukherjee and Biswas, sent a letter to the Registrar of the High Court Original Side, as follows: "On behalf of our Client Mr. Kumbha Mowjee we beg to enclose herewith two original Awards duly stamped and bath dated 20-7-1949 for the respective sums of Rs. 3,67,000 and Rs. 83,000 duly signed by the Umpire Mr. P. C. Chaudhury for filing. Please therefore direct the office to file the said two Awards and, to issue notices in respect thereof expeditiously." After some correspondence between the Deputy Registrar and the solicitors calling for some further papers, the Deputy Registrar informed the solicitors by his letter dated 29-4-1949 that the award had been filed and asked the solicitors to take out from the Court and serve on the parties concerned the statutory notice fixing a date for judgment upon the said award by the Commercial Judge of the Court, Notices were thereupon issued to both the parties in the following terms: "To 1. Kumbha Mawji, 2. The Dominion of India represented by the Assam Railway. Take notice that the Award of the Umpire appointed in the matter of the above Arbitration Agreement had been filed on the 29th day of August 1949 and that the Court hearing the commercial causes will proceed to pronounce judgment on such Award on 7-11-1949. Dated 29-8-1949." This notice was served on the respondent on 2-9-1949. Thus in respect of these awards, proceedings were initiated purporting to be under S. 14 (2), Arbitration Act, simultaneously both in the Court of the Subordinate Judge of Gauhati in Assam as well as on the Origina1 Side of the High Court at Calcutta.
(3.) The appellant in answer to the notice issued by the Gauhati Court on, 3-9-1949 appeared before that Court on 28-10-1949, and obtained adjournments from time to time until 10-12-1949. On that date we Gauhati Court rejected his prayer for any further adjournment and fixed 20-1-1950 for an ex parte hearing. Meanwhile, the respondent after receiving the notice issued to him by the Calcutta High Court filed on 24-11-1949, an affidavit dated 15-11-1949 stating his objections to the jurisdiction of the Calcutta Court and to the validity of the awards. On the same date a counter affidavit thereto dated 19-11-1949 was filed on behalf of the appellant. On these affidavits the matter was taken up for consideration by the Commercial Judge of the Calcutta High Court on 16-12-1949. The learned Judge overruled the objections of the respondent and passed Judgments on the two awards. On appeal therefrom by the respondent to the Division Bench the learned Judges reversed the judgment of the single Judge. They held that there had been no proper application under S. 14 (2), Arbitration Act, before the High Court of Calcutta, and that consequently that Court had no jurisdiction to deal with the matter.;