KUMBHA MAWJI Vs. DOMINION OF INDIA NOW THE UNION OF INDIA

JUDGEMENT

(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;

(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:

(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.