Kapur, J. - (1.) THIS is an original opposite-party's appeal against an order of a learned Subordinate Judge of Amritsar dated 14-6-1953 dismissing the objections of the original opposite party against an award and passing a judgment and decree in accordance with the award. The matter was placed before me on 5-7-1954 sitting singly and I referred it to a Division Bench.
(2.) THE dispute relates to an arbitration award. THE present appellants Kapur and Sons, are the Original opposite-party. THEy entered into an agreement with Messrs. Raj Kumar--Rajendra Kumar agreeing to sell Parachutes at 9 O. F. O. B. New York per parachute and 5 per cent, commission. On 6-1-1947 Rs. 3,000/were paid as advance to Kapur and Sons and 100 parachutes were delivered by them. As the contract was not fulfilled Raj Kumar-Rajinder Kumar under the terms of the sale contained in Ex. R. 1 invoked the arbitration clause on 25-6-1947. On 19-11950 they made an application under Section 20, Arbitration Act for filing the arbitration agreement which was allowed ex parte on 20-7-1950, but the ex parte proceedings were set aside, and on 31-10-1950 this application was again allowed and on appeal was upheld by the High Court. On 1-12-1950 the original applicant Raj Kumar-Rajinder Kumur appointed Shiv Narain Arora as their arbitrator under the arbitration clause and on the same day the original opposite party, the present appellants appointed the Manager of the Lloyds Bank as their arbitrator. On 14-12-1950 he expressed his refusal to act and on 21-12-1950 Kapur and Sons applied to the Court for the appointment of Sardar Bahadur Sampuran Singh. On 25-12-1950 this application was allowed on payment of Rs. 10 as costs. Why these costs, has not been explained On 21-1-1951 the Court gave notice to the arbitrators to enter on arbitration and make the award. On a notice being sent to Sardar Bahadur Sampuran, Singh, he indicated that he was ill and could not act as arbitrator. On 21-3-1951 another notice was sent to the arbitrators to enter an arbitration. A notice was also sent to Mr. Abnashi Hum, Advocate who had been engaged in Section 20 proceedings indicating to him the charge of some date of proceedings and he was called upon to appear. Although be could not be served in the beginning, he was personally served on 273- 1951. On 28-3-1951 the endorsement on the notice sent to Sardar Bahadur Sampuran Singh was that he was too ill and could not act as arbitrator. On 26-41951 Mr. Balak Ram Khanna, Advocate, on behalf of the original applicants Raj Kumar-Rajindar Kumar sent a notice to both the arbitrators to proceed with the arbitration and to make the award.
(3.) ON 29-9-1951 Mr. Balak Ram Khanna, Advocate acting on behalf of Raj Kumar- Rajindar Kumar sent a registered notice to Kapur and Sons, Cooper Road, Amritsar and to Mr. Alwiashi Ram, Advocate stating that Sardar Bahadur Sampura Singh appointed on behalf of Kapur and Sons had refused to act, that Kapur and Sons had not appointed an arbitrator in his place and it called upon Kapur & Sons. "to appoint your arbitrator by way of substitution within fifteen days of the service of this notice, failing which Mr. Shiv Narain Arora, (the arbitrator already appointed by my client, i. e., the plaintiff) shall act as a sole arbitrator in the above matter and this award shall he binding on both tile parties. This notice is being given to the defendant as well as his counsel." This notice was served on Abnashi Ram, Advocate but the notice issued to Kapur and Sons although it was addressed to their address "Cooper Road, Amritsar" was not delivered and was returned to the sender, but the endorsements on this registered letter are important and are as under: "26-9-1951--Shambu Nath & Sons, K. College. 27-9-51--(in Urdu) To be kept in deposit, 28-9-1951--(in Urdu) The addressee without an address has gone out of Amritsar and the letter should be returned." In English on the last mentioned date there is an endorsement-- "The proprietor out of station without address." ON the same day the endorsements of the Post Office is- "Left without address. Returned to the sender." Then it was returned to the sender. On 1-9-1951 Shiv Narain Arora purporting to act as the sole arbitrator sent a notice to Kapur and Sons as well as to Raj Kumar-Rajindar Kumar to appear before him on the 10-11-1951 at 3 p.m. for arbitration proceedings and called upon them to produce their witnesses and documents, and the notice ended-- "Take notice that in default of your appearance at the appointed time and place the matter in dispute will be heard and determined in your absence ex parte." Abnashi Ram received this notice on 9-11-1951. Why on that day, is not quite clear. But Kapur and Sons although the letter was addressed to their old address "Cooper Road, Amritsar", could not be served. On the 9th November Abnashi Ram wrote a letter to the arbitrator stating that' he was no longer "counsel for Messrs. Kapur and Sons of Cooper Road, Amritsar," and he asked the arbitrator to inform 'the party direct.' The notice to Kapur and Sons was returned with the endorsement that the firm had closed its business since some time. By way of precaution on 30-12-1951 the arbitrator issued an advertisement in the 'Vir Bharat' calling upon the parties to appear on 6-1-1932. As Kapur and Sons did not appear an ex parte award for Rs. 12,160/-with interest was made against Kapur & Sons on 8-1-1952 and a copy of the award was sent to Kapur and sons which was served on them at their Cooper Road address on the 22-1-1952 and a copy was also received by Abnashi Ram Advocate on 15-1-1952.;