MOOLCHAND JOTHAJEE Vs. RASHID JAMSHED SONS AND CO., BY ITS PROPRIETOR, S.R. AHESTANI

JUDGEMENT

(1.) WHILE the Indian Arbitration Act, 1889, was in force a party to an arbitration award was entitled to enforce it by way of suit. The % question in this appeal is whether he has the same right now that the Indian Arbitration Act, 1940, is in force.

(2.) THE appellants entered into a contract with the respondents to sell to them a certain quantity of camphor. The respondents failed to take delivery of the goods in accordance with the terms agreed upon and consequently the appellants sold the camphor. The price realised was less than that which the respondents had contracted to pay and they failed to pay the difference. The contract provided that disputes in relation to' it should be referred to the arbitration of the Madras Kirana Merchants' Association. The appellants referred the dispute to arbitration, in accordance with the agreement and the arbitrators found that they were entitled to receive from the respondents by way of damages the sum of Rs. 1,605 -6 -0. The appellant did not, however, ask the arbitrators to file the award in Court. They took no action until they filed in the City Civil Court the suit out of which this appeal arises. The award was delivered on the 17th September, 1940 and the suit was filed on the 2nd May, 1941. The appellants averred that the award had become " final, conclusive and binding on the parties " and asked for a. decree in the terms thereof. The respondents denied that there had been a valid reference to arbitration and consequently they averred that there was no proper award. They further pleaded that the award was vitiated by the misconduct of the arbitrators and had been improperly procured. The appellants contended that it was not open to the respondents to maintain these pleas. They said that as the respondents had neglected to cause the award to be filed in Court they (the appellants) became automatically entitled to a decree in the terms of the award on the expiration of the three months allowed for its filing. The Principal Judge of the City Civil Court who tried the suit found for the appellants but his decision was overruled by Somayya, J., on appeal : AIR1945Mad371 . Consequently the learned Judge dismissed the suit. This appeal is from his judgment.

(3.) SECTION 14(1) says that when the arbitrators have made their award, they shall sign it and give notice of the fact in writing to the parties -. Sub -section (2) says that the arbitrators shall, at the request of a party, cause the award to be filed in Court and, when this is done, the Court shall give notice of its filing to the parties. Sections 15 and 16 empower the Court to modify the award or to remit it to the arbitrators for further consideration. Section 17 states that when the Court sees no cause to remit the award for reconsideration, it shall, after the time for making an application to set it aside has expired, or when such an application has been made and refused, proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow. No appeal lies from the decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.