Kapur - (1.) THIS is an appeal brought by the defendants Messrs. Saxena and Co., against an order passed by a learned Subordinate Judge of Delhi refusing to set aside an award made in favour of the plaintiff during the course of a suit for the recovery of a sum of Rs. 10,000/-.
(2.) IN 1946 Saxena and Co. purchased two lacs of parachutes worth Rs. 32,00,000/- for a Mr. King from the Disposals Department. They were to be paid a commission of one rupee percent, which worked upto Rs. 32,000/- and this commission was to be shared half and half between the plaintiff Damodar Parshad Gupta and the defendants. For some reason or another King did not take over this bargain and the parachutes were purchased by Messrs. Milkhi Ram and Bros. of Bombay on or about 23-71946 with the consent of King and it was arranged by the plaintiff and the defendants to make delivery of parachutes to. Messrs Milkhi Ram and Bros. On 237- 1946 a cheque for Rs. 10,000/- was issued by Messrs. Saxena and Co, in favour of Damodar Parshad Gupta which was presented to the Bank in January 1947 but it was dishonoured on the 16th January on the ground that the drawer had stopped payment. Meanwhile on 13-8-1946 Saxena and Co., gave a cheque for Rs. 5,000/- to Damodar Parshad Gupta which it is how alleged was in full and final settlement of Gupta's share in the commission. Damodar Parshad Gupta then brought a suit for the recovery of Rs. 10,000/- on the basis of this cheque on 29-7-1949. As a result of the pleas of the defendants several issues were stated by the learned Judge. On 8-1-1952 the suit was referred to the arbitration of Mr. B. S. Soni, a chartered accountant of Chandni Chowk, Delhi, who made an award on the 11th March in favour of the plaintiff. The objections filed by the defendants against the award were overruled and a judgment was passed in accordance with the award and a decree followed. In the deed of reference there was a clause to the following effect- "The award of the arbitrator whether with or without enquiry made within one month from today shall be final and binding on the parties, and it will not be open to any objection. It would be in the sole discretion of the arbitrator to take evidence or not to hear any party or not, and to arrive at his decision in any way he likes, even behind the back of both or either of the parties. The fee of the arbitrator to be fixed by the Court will be borne by the defendants." The real question raised in trial Court was that the defendants did not get an adequate opportunity for putting their side of the case before the arbitrator and that the proceedings had been taken ex parte which vitiated the award. The learned Judge was of the opinion that the arbitrator was justified in proceedings ex parte.
(3.) TWO questions have been debated before me,(1) that the arbitrator has misconducted himself as he proceeded ex parte without reasonable cause and (2) (which was raised by the respondent) that in' terms of the agreement he need not have heard the defendants at all. The record of proceedings before the arbitrator shows that a notice was given for the appearance of the parties for 16-2-1962 and the parties were on that day present or represented and at the request of the defendants the case was adjourned to the 23rd February for the production of certain documents and on the 23rd February an adjournment was given at the request of the parties for a compromise. The next date of hearing was 29-2-1952. There was no compromise and the arbitrator issued notice to the parties to appear on 1-3-1952 on which date the plaintiff appeared but the defendants did not. The defendants' Advocate Mr. Shiv Dayal Mehra applied for an adjournment to the second week of March as the notice was short and evidence could not be arranged for 1-3-1952 but the case was adjourned to 8-3-1952. This notice reached the defendants at Bombay on 3-3-1952. The defendants deny that this notice was received, but the learned Judge has found against them, and I think rightly.;