1. (After narrating facts, his Lordship proceeded:) The grounds on which the petition is based are set out in para. 11 of the petition. The principal grounds as stated by the petitioner's own counsel are: (1) that the petitioner was not given proper and sufficient notice and/or reasonable opportunity of appearing before the arbitrators and urging his contentions, his main contention being that he was not personally liable to the respondents; (2) that the arbitrators had no jurisdiction to decide who were the partners in the firm of S.B Kartarsing & Sons, and that the award was improperly procured against the petitioner on misrepresentations made by the respondents that he was a partner in the said firm, and (3) that the arbitrators had no jurisdiction to decide the claims and/or disputes in regard to the consignment business. Before I deal with these grounds there is just one minor point to which I should like to refer in passing. It has not been pressed by the respondents' counsel, but it is still referred to in the respondents' affidavit in reply. They contend that the petitioner had waived his right to object to the jurisdiction of the arbitrators or of the Appeal by filing an appeal and appearing before the Board which heard all his arguments and contentions. The petitioner however appeared under protest, and it has been laid down in several English cases, and recently also in Bambaksh v. Bombay Cotton Company (1), that once a party has made his protest, he is entitled to defend himself and to go through the arbitration, and the petitioner could therefore exercise his right of appeal which is given to him by the by-laws of the East India Cotton Association, Limited.
2. I will now deal with the principal grounds mentioned in the petition. The first ground is that the petitioner has not been given a proper and sufficient notice and or reasonable opportunity of appearing before the arbitrators and urging his contentions. It is a well known principle of the law of arbitration that an inquiry before the arbitrator should be assimilated as near as possible to proceedings in a trial in a Court of law, and that therefore a party to the arbitration must not only have notice of the time and place of the meeting, but he should be allowed reasonable opportunity of proving his case either by evidence or by arguments or both, and of being fully heard. The notice must be sufficiently long in order to give the party that reasonable opportunity if he wants to be heard. If there is no sufficient notice there cannot be a proper hearing nor a valid award, it being a well-recognized rule of natural justice that a man's legal rights cannot be determined without giving him an opportunity of being heard. In a case in Amir Begam v. Badr-ud-din Husain (2) their Lordships of the Privy Council observe as follows (p. 343 of 36 All):
“If irregularities in procedure can be proved which would amount to no proper hearing of the matters in dispute there would be misconduct sufficient to vitiate the award without any imputation on the honesty or impartiality of the arbitrator.”
3. In the matter before me the arbitrators sent a notice to the petitioner by registered post on 3rd January 1930, and counsel for the respondents stated that in due course it should have reached Sargodha on or about 6th January 1930. The envelope containing notice addressed to Tejsingh, one of the guardians of the minor brothers of the petitioner, bears the postal mark of 6th January 1930. The name of the post office is very faint, but the respondents' counsel says that it is the mark of the post office of Sargodha. Presumably, therefore the letter containing the notice addressed to the petitioner must also have reached Sargodha on 6th January 1930, though the envelope containing that notice is not now forthcoming. The petitioner however says that he was absent from Sargodha from 4th to 14th January 1930, and the postal acknowledgment says that the letter was received by one Jivandas on 11th January 1930, presumably on behalf of the petitioner. The letter came into the hands of the petitioner on 14th January 1930, and the acknowledgment dated 11th January 1930, came into the hands of the arbitrators on the same day, an hour or two before they held their meeting. On reading the letter the petitioner wrote on 15th January 1930, the letter to the arbitrators to which I have referred above. But the arbitrators proceeded with the arbitration and made their award on 14th January 1930, as I have stated before. Under by-law 8 of the by-laws of the East India Cotton Association a notice to a member or a non-member of the association which is required to be given under the by-laws may be served either by hand or by a registered letter sent to the address registered with the association or to his last known address, and a notice if served by post
“shall be deemed to have been served at the time the letter containing the same would in the ordinary course of post have been delivered. The production of the post office receipt for the registered letter shall in all cases be conclusive proof of positing of the notice.”
4. Under the instructions to ??? at the end of by-law 8 it ??? the arbitrators have ??? that the notice ??? before ??? Now it is admitted that the notice was sent by registered post on 3rd January 1930, to the petitioner, and a postal receipt obtained for the same. The notice would therefore under by-law 8 be deemed to have been served upon the petitioner at the time when the same would be delivered at his destination by post. In other words, it would have been deemed to have been served on or about 6th January 1930. But the acknowledgment which the arbitrators had before them on 14th January 1930, showed that it was received by Jivandas on 11th January 1930, and there is nothing before me to show that until then the petitioner or anyone on his behalf had refused to take delivery when the letter containing the notice was tendered, so that the presumption that the notice would be deemed to have been served on or about 6th January 1930, is rebutted by proof of its having been actually received on 11th January 1980. The arbitrators do not seem to have taken that fact into consideration. They proceeded with the arbitration and recorded in their award that the notices were duly served on the petitioner and his brothers, but that none of them appeared at the hearing.
5. On the assumption that the letter of 3rd January 1930 would reach Sargodha on 6th January 1930, the arbitrators thought that a week's time should be given to the petitioner to come down to Bombay and appear before them on 14th January 1930. It is therefore difficult to understand how, when they knew that the notice was actually received by the petitioner on 11th January 1330 they could still have thought that three days' time was sufficient for the petitioner to appear before them on 14th January 1930 remembering that even on 11th January 1930, the letter had not gone into the hands of the petitioner, but of one Jivandas on his behalf, as it appears from the acknowledgment. The respondents in their affidavit in reply say that the petitioner said nothing in his letter of 15th January 1930 to the arbitrators about his absence from Sargodha from 4th January till 14th ??? January 1930, and that the allegation was ??? after-thought on his part. I do the contention of the ??? letter of 15th January ??? notice of his letter of ??? thought it necessary to draw the arbitrators' attention to his contention that he was not a partner in the firm and that the question of partnership was not before them, I see no reason why he should not have done so earlier if as a matter of fact the notice of the arbitrators had reached him earlier than 14th January 1930.
6. Moreover, as I have already stated, that notice was acknowledged by Jivandas on 11th January 1930, and even if it was forwarded by Jivandas to the petitioner it would have been difficult for him to come down and be ready to proceed with the hearing on 14th January 1930 in Bombay. I should just like to add that even when an arbitrator considers that the time and place fixed by him for the meeting are reasonable, and if after service of notice one of the parties to the arbitration fails to attend before him, he is entitled no doubt to proceed with the arbitration ex parte. But it is still advisable for him, though it is not compulsory, that he should give that party notice of his intention to do so: see Halsbury's Laws of England, Vol. 1, para. 970. The arbitrators did not however think it advisable to send such a notice.
7. It was further argued by counsel for the respondents that the question of sufficiency of notice does not arise, because the award of the arbitrators has been disposed of, and the Court is only now concerned with the decision of the Appeal Board, and that decision was given after the Board had heard the parties fully.
8. In my opinion both the award of the arbitrators and the decision of the Appeal Board must be considered together, as they really constitute one entire proceeding, and as far as the petitioner is concerned, the decision of the Board confirms the award of the arbitrators. Moreover, on looking at the minutes of the proceedings before the Board it appears that counsel who appeared under protest only pointed out to the Board that the questions of partnership and of the consignment business were outside the scope of the reference, and the question of sufficient notice was not considered at all. Taking all the contentions of the parties into consideration, I come to the conclusion that the petitioner had not been given a reasonable opportunity to urge his contentions, his main contention being as I have stated before, that he was not in any way personally liable in respect of the claim of the respondents. (The remaining Judgment is immaterial).
R.M/R.K
9. Order accordingly.