The Judgment of the Court was delivered by
Chakravartti, J.:— This rule is directed against an order of the learned Second Subordinate Judge of Alipore, rejecting an application for the appointment of a receiver for the purpose of raising the arbitrators' fees by mortgaging some of the joint properties of the parties. In order to explain how the question involved in the case arises, it is necessary to state certain facts.
2. It appears that one Bipin Krishna Tarafdar died in 1942, leaving five sons and a fairly considerable estate. The fourth son Indu has since died and is now represented by his heirs. In 1944, the youngest son Sunil brought a suit for partition of the joint properties and for accounts of a number of joint businesses and in that suit an order for appointment of a receiver was made. As many as four appeals were preferred from that order and when those appeals were pending in this Court, the parties came to a compromise by which they agreed to refer the matters in dispute to the arbitration of two advocates of this Court. The fees of the advocates were settled at six gold mohurs per each sitting of two and a half hours.
3. In accordance with that agreement, the trial Court referred the case to the arbitration of the said two gentlemen on 2nd June 1945 and in due course they entered upon the reference. We are informed that they held 144 sittings and have completed the award. They have not, however, filed the award, as a substantial portion of their fees has not yet been paid. We are informed that they have received a sum of about Rs. 13,000 but are claiming a sum of about Rs. 18,000 more. The petitioner before us is the eldest son of Bipin Krishna Tarafdar. His case is that he has paid the full amount of his share of the arbitrators' fees and that the plaintiff also has practically paid the full amount of his share. The balance of the dues of the arbitrators is, according to him, due from the remaining defendants, who have so far failed and neglected to pay. In those circumstances, he and the plaintiff made an application to the trial Court, praying that the arbitrators might be appointed receivers and they might be empowered to mortgage their two-fifths share of the residential house and thereby raise the balance of the arbitrators' fees. The learned Judge allowed that application and appointed the arbitrators receivers, as prayed for, but they reported that they had been unable to raise the money as no one was willing to advance the amount on the security of an undivided share of a joint family house. The petitioner before us then made a second application, this time praying that the arbitrators should be once more appointed receivers and they should now be empowered to mortgage the shares of all the parties and thereby raise the balance of the arbitrators' fees. The learned Judge rejected that application in the view that he could make such an order only by consent, but he could not, if the parties did not consent, make it by way of an order of the Court. It is against that order that the present rule was obtained.
4. It was contended before us on behalf of the petitioner that the Court could not be power-less to grant some relief to the parties in a case like the present and that a party ought not to be allowed to nullify a reference by sheer recalcitrance and by refusing to pay the arbitrators' fees. That may be true, but the question before us is whether the law authorizes the Court to grant relief in the particular form insisted on by the petitioner. It appears to us that the Arbitration Act addresses itself to this very question and prescribes a remedy which is not the remedy proposed by the petitioner.
5. The two relevant sections are S. 14(2) and S. 38. Section 14(2) provides that the arbitrators or the umpire shall, at the request of any party or if be directed by the Court and upon payment of the fees and charges due in respect of the arbitration, cause the award or a copy of it to be filed. It is clear that two conditions must be fulfilled before an arbitrator can be compelled to file an award. There must be a request by a party to the arbitration or a direction by the Court, and secondly, the fees and costs of the Arbitrator must first be paid. The other provision in S. 38 of the Act which lays down that if in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and then Court should after further enquiry order that out of the money so paid, there shall be paid to the arbitrator by way of fees such sums as the Court may consider reasonable. Sub-s. (2) of this section, however, provides that sub-s. (1) will not apply in a case where the fees have been fixed. There may be some question as to whether the present case is one where the fees have been fixed, for all that has been fixed is the rate per sitting. But whether S. 14(2) applies to the present case or S. 38 does, it is quite clear that, in either case, the applicant cannot have the award filed unless he pays off the balance of the fees due to the arbitrators. The Act, it appears to us, does not provide that if any of the parties does not pay his share of the arbitrators' fees, the Court has power to compel him to do so by means of an interim order at the instance of another party who has paid his share and wants to have the award filed.
6. Some further light on what the Act in-tends is thrown by two other sections of the Act, namely, Ss. 18 and 41(b). Section 18 deals with the case where an award has been filed and a decree has been passed. But where some one of the parties has been trying to defeat or delay or obstruct the execution of the decree passed upon the award, in a such case, the Court is specifically empowered by S. 18 to pass interim orders that may be deemed necessary in order to meet the situation created. It is significant that the Act does not contain any corresponding provision for passing interim orders before the stage at which the award is filed. The other section (S. 41) deals with the powers of the Court in ralation to arbitration proceedings and it provides that the Court has power to make orders in respect of the matters set out in Sch. 2 to the Act. A reference to Sch. 2 shows that the matters there provided for are appointment of a receiver and granting of injunctions and taking certain other steps for the preservation of the property. It is again significant that the Act, when specifically providing for orders which the Court can pass in relation to arbitration proceedings, does not provide that it can, if necessary, pass orders directing parties to pay their proportionate shares of the arbitrators' fees in order that the award may be brought on the record. In our opinion, there is no warrant in the Arbitration Act for any interim order by the Court, directing the parties to pay the arbitrators' fees.
7. It was next contended that apart from the Arbitration Act, there was a special contract in this case and the Court might well enforce the terms of that contract. A reference was made to cl. 11 of the agreement where it is provided that each of the parties will pay his proportionate share of the arbirators' fees and if any party fails to pay or no party pays, the costs will come out of the estate. It was contended that the Court might make an order of the kind prayed for in this case on the basis of the last provision contained in this clause. I am by no means satisfied that the last sentence in this clause bears the meaning attributed to it by the petitioner. The provision is of the usual kind and seems to mean no more than this that the parties will not be personally responsible for the costs but the costs will come out of the estate. In any event, the provision only means that there will be a direction for the costs to come out of the estate in the ultimate decree and it does not and cannot mean that during the progress of the suit or the progress of the arbitration proceedings, the Court will have power to make interim orders directing, as it were, specific performance of the contract contained in that clause in the agreement between the parties. I am of opinion that Cl. 11 of the agreement is of no assistance to the petitioner and he cannot claim, any relief on the basis of any right thereby created in the form asked for. The Act, it appears to me, provides for two remedies and two remedies only. One is that the party who wishes the award to be filed can have his wish fulfilled by paying the costs himself. The recovery of the costs from the remaining parties must form the subject-matter of a separate proceeding or may perhaps be adjusted at the time of passing the final decree. The other remedy, it seems to me, is that if it is found that the arbitration is being brought to nothing by the recalcitrance of one of the parties who is refusing to pay his share of the arbitrators' fees, the person aggrieved may well make that a ground for an application for superseding the reference. The plaintiff has had these remedies open to him and if he did not take advantage of either, he cannot expect the Court to grant him a third and a new kind of remedy.
8. On the merits again, I am not by any means satisfied that the attitude of the remaining defendants was so unreasonable as it was represented to us to be. The learned Judge states in his order that what the remaining defendants submitted to him was merely that they were not willing, that their shares of the residential house should be mortgaged and their debts thus added to. They were willing, however, that the house might be sold off altogether to which the petitioner could not agree. The question therefore is not one of refusal by the remaining defendants to pay the arbitrators' fees, but merely one of a dispute between the parties as to the manner in which the money ought to be raised. If the remaining defendants are not willing to take up the burden of further debts, I cannot see how, sitting in revision, we can make an order directing the Court to force them to do so.
9. For the reasons given above, this application must fail. The rule is accordingly discharged with costs to Mr. Barwell's client, the hearing, fee being assessed at two gold mohurs.
Harries, C.J:— I agree.
R.G.D
10. Rule discharged.