Partap Talkies Padrauna v. Narain Talkies Distributors And Anr.

Judgement

Order. - This is a rule directed against a decree passed by Mr. Das Raj Pahwa dated 9-3-1949 awarding against the defts. a sum of Rs. 1475 with costs.

2. The facts which have given rise to this petn. are that the pltfs. sent two films to a place called Padrauna, Dist. Gorakhpur, for hiring to Partap Talkies. The Rly. receipts were made out to self and when the goods arrived at the destination the pltfs. sent intimation to the Ely. authorities to stop the goods in transitu. Instead of carrying out the orders and directions of the consignors the Ely. authorities because of collusion or otherwise which is not quite clear handed over the goods to the deft. Partap Talkies. A suit was then filed by the pltfs. against the Partap Talkies, Padrauna, Dist. Gorakhpur, Thakur Murli Dhar Singh, Reis and Jagirdar of Gwalior, proprietor of deft. 1 and the Governor-General in Council for recovery of Rs. 3510 as detention charges for the two films which had been sent by the pltfs. In paragraph 7 of the plaint the pltfs. alleged that they had suffered a loss of Rs. 3,510 on account of the misconduct, negligence of and wrongful conversion by the Bly. Authorities and due to the unlawful delivery of the pictures to deft. 1 and in para. 8 they alleged that the liability to pay Rs. 3510 was of deft. 1. In their reply defts. 1 and 2 denied the allegations of the pltfs. and pleaded that no delivery was taken and if it was taken it was by a person not authorised on behalf of defts. 1 and 2. It appears that some time later the parties discharged the Rly. from all liability, so that the contest was confined to the pltfs. and defts. 1 and 2 i.e., the Partap Talkies and Thakur Murli Dhar Singh.

3. On 27-1-1949 the parties made a statement which may be translated as follows :

"Let Mr. Brij Lal Advocate for the Rly. be appointed a referee. He may hear the evidence orally and make a statement. His statement will be binding on the parties. He should hear the evidence today."

Upon this an order was made appointing Mr. Brij Lal referee with the direction that he should hear the oral evidence that very day and file his statement the following day, and that the referee would be paid no remuneration.

4. From an appln. made by the referee to the Ot. dated 28-2-1949, it appears that part of the pltfs. evidence was recorded on 28-2-1949 and the case was then adjourned to 17-2-1949 which was declared a holiday, and at the request of Mr. Monohar Singh, Advocate for the defts. the case was adjourned to 28-2-1949, on which date some evidence for the pltfs. was heard. The defts. asked for an adjournment of the case due to illness in the family and by an order of the Ot. the time was extended to 9-3-1949. Again on the 7th of March an appln. made to the referee for adjournment on the ground that Thakur Murli Dhar Singh was ill and so was his wife and that the Mukhtar also could not come, but this appln. was refused.

5. On 9-3-1949 the referee made a statement in Ct stating that he had heard the statements of the pltfs. and their witnesses, that the defts. had produced no evidence and that after considering the evidence his opinion was that the defts. were liable to pay Rs. 1475 with proportionate costs. On that very day, the learned Commercial Judge of Delhi passed a decree against the defts. for Rs. 1475 with proportionate costs.

6. It does not appear from the record that any objection was taken to the passing of the decree on that very day or that the defts. sought any opportunity or made any request for giving time to the Ct. for filing of objections. I must take it, therefore, that up to that time the defts. did not consider that Mr. Brij Lal had been appointed an arbitrator or that the proceedings before him were arbitration proceedings. Indeed, in the grounds of revn. which have been taken in this Ct. the objection is that the award was illegal and opposed to law and that the Ct. had exercised a jurisdiction which had not vested in it. No specific objection of any kind was raised even up to 6-7-1949.

7. Before me an objection was taken by Mr. Sarin the learned counsel for the petnr. that the proceedings were in the nature of an arbitration and that Mr. Brij Lal was acting as an arbitrator, and after the award had been filed the Ct. should have waited for thirty days as required by S. 17, Arbitration Act, before it passed the decree and that not having been done the whole thing was without jurisdiction and therefore, subject to revn. by this Ct. It appears to me that it was not the intention of the parties to appoint Mr. Brij Lal as an arbitrator. The word "arbitrator" has been scrupulously avoided and nothing was said at the time when reference was made to Mr. Brij Lal that he was to act as an arbitrator. Indeed, this was the position which was accepted throughout in the Ct. of the learned Commercial Judge. Mr. Sarin has pointed out, however, that whatever may have been the position Mr. Brij Lal acted as an arbitrator. He heard evidence and on that evidence he has given an award. He has actually used the words "I award accordingly", from which he wishes me to conclude that the whole matter was one of arbitration. I quite agree with Mr. Sarin that the wording of the statement made by Mr. Brij Lal on 9-3-1949 is capable of that meaning, but whether the parties had appointed him an arbitrator or merely as a referee is quite a different matter.

8. From what I can see, it was never the intention of the parties to appoint this gentleman as an arbitrator. Indeed, the case seems to be more in the nature of what happened in Himanchal v. Jatwar, A. I. R. (11) 1924 ALL. 570 : (46 ALL. 710). There it was agreed between the parties that one Rai Sahib Pandit Gopal Dass Sharma, Vakil, should hear "the whole affair" and then should make a statement which would be binding on the parties. This thing was held by a D. B. to be really a compromise of the dispute in that particular manner. The parties, it was held, had agreed that the decree of the Ct. should be in accordance with the statement made by the nominee and that there was nothing to prevent the parties from compromising the suit and agreeing to a decree being passed in terms to be stated by a person named. Such an agreement was in the nature of an adjustment of the suit and no party could be allowed to resile from it. The parties in the present case in my opinion really consd. this method to be one compromising the dispute rather than going to arbitration Even if the matter were taken to be one of arbitration I am unable to see how any injustice has been done to the defts. Ample opportunity seems to have been given to the defts. to adduce evidence before Mr. Brij Lal and they for some reason or another do not seem to have taken advantage of the opportunity offered. When the statement was made by Mr. Brij Lal or, if the defts. so choose to call it, an award was filed no objection of any kind was taken. No statement was made by the defts. that they wished to file any objections. No such petn. was put in and it appears to me from the conduct of the parties that they thought the whole matter to be one more in the nature of what happened in the Allahabad case mentioned above than an arbitration agreement. I am, therefore, of the opinion that the petnrs. have not been able to make out a case for interference by this Ct. I would accordingly discharge the rule with costs. Counsels fee Rs. 50.

Rule discharged.