1. The applicant and non applicant who were partners in some business referred their dispute relating to some contract works carried on by the partnership to the sole arbitration of Khan Bahadur Tarapore, Barrister-at-law of Drug by an agreement, dated 19th December 1935. The account books belonging to the business were handed over to the arbitrator. The arbitrator made an award on 4th March 1937 and the applicant Kesheolal applied under Sch. II, para. 20, Code of Civil Procedure, for filing the award and for obtaining a judgment and decree according to the terms of the award. This application was opposed by the present non-applicant who was the non-applicant in the proceedings on several grounds. The main contention on behalf of the non-applicant was that the award was unreasonably delayed and was given by the arbitrator after the non applicant had served him with a notice informing him that there was a delay in pronouncing the award and that circumstances have since changed which showed that the arbitrator was not a suitable person to deliver an award regarding the dispute between the parties. It was also complained that the arbitrator did not grant any hearing to the non-applicant and decided the case without affording him necessary opportunity for explaining how the accounts stood between the parties. The award of the arbitrator was wholly in favour of the applicant, and it was urged that this applicant had worked for Khan Bahadur Tarapore as a polling agent during his election for the Legislative Assembly, while the non-applicant though requested declined to work for him and this has led to an award being given against the non-applicant.
2. The trial Court after hearing the evidence in the case ordered that the award was not in any way vitiated and that it may be filed. It pronounced judgment accordingly and a decree followed. The non-applicant filed an appeal against the order filing the award and the lower Appellate Court came to the conclusion that the lower Court was wrong in filing the award. It set aside the order of the trial Court and dismissed the applicant's claim to have the award filed. It is against this decision of the lower Appellate Court that the present application has been filed before me. It is faintly argued that no appeal lay before the lower Appellate Court inasmuch as there was a decree passed in the case and inasmuch as the decree was not in excess of the award or such as could not be said to be in accordance with the award and no appeal lay. This contention, however, is based upon a misconception of Sch. II, para. 21, Code of Civil Procedure. Section 104 of the CPC, clause (f), distinctly permits an appeal from an order filing or refusing to file an award in an arbitration without the intervention of the Court. The applicant was therefore entitled under Section 104, clause (f) of the CPC, to file an appeal against the order of the trial Court filing the award. Sch. II, para. 21, does not take away this right of appeal that is given to a person aggrieved by S. 104, cl. (f) but only enacts that if a person wants to file an appeal against the decree though the decree is in accordance with the award and not in excess of the award such an appeal will be incompetent. The applicant does not wish to challenge the decree on any of these grounds. His appeal before the lower Appellate Court was not therefore one contemplated by Sch. II, para. 21, sub-cl. (2). His was an appeal under S. 104, cl. (f). If his appeal succeeded the judgment and decree that followed the order of the trial Court would necessarily be vacated as a result of his success in the appeal. The fact, that the filing of the award was followed by judgment and decree did not disentitle a person aggrieved from filing an appeal against the order filing or refusing to file the award, the same being expressly permitted by S. 104, cl. (f). I therefore hold that an appeal lay to the lower Appellate Court. The decision of the lower Appellate Court, however, is attacked before me on merits, and it is contended that the lower Appellate Court was not right in refusing to file the award on the ground that the award was unreasonably delayed. It is further contended that the lower Appellate Court was wrong in making capital out of want of hearing the non-applicant before the arbitrator. That there was a delay in pronouncing the award is obvious from the fact that the agreement was entered into on 11th December 1935 and the award was pronounced so late as 4th March 1937, but it is argued that this is not an unreasonable delay and if the non-applicant considered that it was a delay of a nature which required explanation it was for him to have examined the arbitrator and proved that he was guilty of misconduct in not pronouncing the award earlier. Inasmuch as the arbitrator has not been examined in the case and the delay has not been shown to be unreasonable the award was not vitiated. This reasoning does not appeal to me. It is really unfortunate that though the arbitrator was summoned as a witness by both parties he was not examined in the case. It appears from the order sheet that on one or two occasions he could not appear before the Court as he had work elsewhere and it appears that the parties eventually gave him up and closed the case. This is thus a case in which except a copy of the award pronounced by the arbitrator and which was handed over to the applicant there is absolutely nothing before the Court to show as to what the arbitrator was doing between 11th December 1935 when he was appointed an arbitrator till 4th March 1937 when he pronounced the award.
3. The other side stated that when delay was complained of by the non-applicant in the trial Court, the delay was due to the non-applicant himself partly, and partly to the fact that the arbitrator being a busy lawyer could not find time to look to this arbitration earlier. The delay on the part of the arbitrator being apparent it was for the party who alleged that there was a proper explanation for the delay to prove the circumstances under which the delay could be justified. No such evidence has been given in the case. The lower Appellate Court therefore came to the conclusion that there was a delay which was not properly explained and that itself is a valid ground for revoking the reference and vacating the award. In this connexion it is further argued that the trial Court did not frame an issue on the point of delay and this was not noticed by the lower Appellate Court. I do not find any complaint before the lower Appellate Court for an issue on the point of delay. The trial Court has dealt with the point under issue 1(e). The parties knew what they had to prove as they themselves had made allegations on the point of delay. It does not appear to me that an injustice has been caused to any party. Had there been any such injustice the complaint should have been made in the lower Appellate Court. Unreasonable delay on the part of the arbitrator amounts to legal misconduct is laid down in 17 Cal 2001 and 52 Bom 116. (’28) 15 AIR 1928 Bom 49 , 107 IC 707 , 52 Bom 116 , 80 Bom LR 92 In 17 Cal 2001 the delay was not for more than a year and there it was held that it was such a delay as entitled a party making the submission to the arbitration to revoke the reference and withdraw the proceedings from the arbitrator. In 52 Bom 116 (’28) 15 AIR 1928 Bom 49 , 107 IC 707 , 52 Bom 116 , 80 Bom LR 92 the delay was for about five years but the length of the delay was not the criterion for the decision of the case. At p. 120 the case in 17 Cal 2001 was noticed by their Lordships of the Bombay High Court and it was stated that in that case there was an agreement to go to arbitration on 31st March 1886. Nothing appears to have been done by the arbitrators beyond the fact that two or three meetings were held and matters so continued till 8th December 1686, on which date one of the parties wrote withdrawing from the arbitration. The point was whether he was entitled to do that, and the Court held that he was.
4. What is necessary in such a case of arbitration is that once an arbitrator is appointed the parties to the arbitration are entitled to insist that the arbitration should be proceeded with reasonable speed and if there be an unreasonable delay which is unexplained and not justified by the circumstances of the case the parties to arbitration will be justified in revoking the reference and if an award is given after a long delay he will be entitled to ask the Court not to file the award. Their Lordships of the Privy Council also observed in 12 MIA 1123 at p. 131:
If nothing whatever had occurred since the appointment of the arbitrators in June 1864, and all matters between the appellant and the respondents had remained in exactly the same position that they were in at the date of the submission to arbitration, their Lordships are disposed to think that this delay of the arbitrators would have justified the course which the appellant adopted.
5. The authorities therefore clearly indicate that even a delay of one year in arbitration proceedings, if not properly accounted for, vitiates the award. As there is no explanation whatsoever in this case as to why the delay occurred the award could be set aside. The lower Appellate Court has set aside the award also on another ground, namely that this was a case in which there was no hearing and the arbitration proceedings were conducted in such an irregular manner as was opposed to the principles of natural justice. The learned counsel for the applicant before me argued that this was not a case in which any hearing as such was required as the parties had placed the accounts in the possession of the arbitrator and the arbitrator had to arrive at a decision independently as it were without the aid of the parties. The evidence given by the non-applicant himself is relied on in support of this contention. The non-applicant in his evidence stated that he asked the arbitrator several times whether he had given his decision and whether he wanted his help and that he was ready to explain the accounts if he did not understand anything in them but the arbitrator never asked him to go and explain the points in the accounts. On the basis of this evidence it is stated that this was a matter in which in all probability the arbitrator did not think it necessary to have anything explained by any party as he could understand everything that was in the accounts and decided the case.
6. The lower Appellate Court took the view that if the parties did not agree and refer the matter to arbitration it necessarily meant that there were disputes between the parties. They wanted someone else to decide these disputes. In this case the agreement between the parties is not before the Court, the proceedings of the arbitrator are not before the Court and the evidence of the parties to the arbitration in this case disclosed that there was no sitting of the arbitration. Both parties admit that the arbitrator did not call any of them before pronouncing the award. It is impossible to believe that there were no points of difference between the parties in the case and if there were points for difference, then unless the patties were called and asked to state their respective cases with reference to those points it was not possible for the arbitrator to arrive at a proper decision. The pleadings in this case which were recorded by the trial Court indicate that there was a difference as to how many contract works were such as could be called partnership works. One party stated that there were nine such contract works and another party stated that there were only five such contract works which were partnership ones. This also shows that there were matters which required proper scrutiny by the arbitrator, but if he did not hear the parties and decided to pronounce the award it must necessarily be a proceeding which is opposed to the principle of justice. The arbitrator may not be strictly bound by the rules and procedure observed in Courts but this does not mean that his procedure should be opposed to natural justice.
7. It is very significant to note that after the appointment of Khan Bahadur Tarapore on 11th December 1935 we do not know of any hearing for the arbitration proceedings. For the first time we see Khan Bahadur Tarapore writing to the applicant on 20th January 1937 wherein he states that P.W.D estimates had not yet been banded over to him. It is in this very letter that the arbitrator requests the applicant to help him in his election. The non-applicant in the witness-box stated that be declined to help the arbitrator in his election and finding that the other party was willing to help him he posted a letter to the arbitrator on 23rd February 1937 complaining that the arbitration was delayed and no award was given and that circumstances have since changed which made him revoke the authority given to him to arbitrate on his behalf. This letter strangely enough reached Khan Bahadur Tarapore on 4th March 1937 and it is on this very date that he pronounced his award. It is not quite clear from the record whether the award was pronounced before or after the receipt of the letter. The learned counsel appearing for the non-applicant before me stated that the letter was posted from a place only 20 miles from Drug and ordinarily it should not have taken long to reach Drug. The applicant has admitted in the witness box that he worked as a polling agent for Khan Bahadur Tarapore the arbitrator. We have thus the fact that the applicant was the polling agent of Khan Bahadur Tarapore, while the non-applicant had declined to work for Tarapore. Under these circumstances the non-applicant wrote the letter on 23rd February 1937 informing Khan Bahadur Tarapore not to arbitrate under the authority given to him and strangely enough we find on the very day on which Khan Bahadur receives the letter the award was pronounced, an award which is wholly in favour of the other party and against the non-applicant.
8. The circumstances of this case therefore are such as justified the lower Appellate Court in concluding that the arbitration proceedings were irregular and opposed to the principles of natural justice: 69 Bom 268 (’35) 22 AIR 1935 Bom 127 , 155 IC 669 , 59 Bom 268 , 37 Bom LR 69 and 36 All 336. (’14) 1 AIR 1914 PC 105 , 23 IC 625 , 36 All 336 , 17 OC 120 (PC) In 13 Rang 648 (’35) 22 AIR 1935 Rang 376 , 158 IC 865 , 13 Rang 648 (FB) at p. 678 their Lordships of the Rangoon High Court observed that to decide the case, as the arbitrators did, without giving the appellants any opportunity of being present or of presenting their defence before the tribunal, was not only contrary to the rules but was manifestly a violation of natural justice that wholly vitiated the award that was made. The circumstances of the present case are worse than those in Rangoon case. The learned counsel for the applicant laid great stress on ILR (1936) Nag 44 (’36) 23 AIR 1936 Nag 197 , 166 IC 556 , ILR (1936) Nag 44 at pp. 46 & 47 and argued that the view taken by the lower Appellate Court was such as if the lower Appellate Court thought that it had the authority to hear an appeal against an award. This is not permissible in law as stated in ILR (1936) Nag 44. (’36) 23 AIR 1936 Nag 197 , 166 IC 556 , ILR (1936) Nag 44 In ILR (1936) Nag 44 (’36) 23 AIR 1936 Nag 197 , 166 IC 556 , ILR (1936) Nag 44 the District Judge in refusing to file the award examined the merits of the award and came to the conclusion that the award was not fair and refused to file it. It was therefore pointed out in that case that in Sch. II, para. 21 the Court has only to consider such grounds as are mentioned in paras. 14 and 15 of the Schedule and not the merits of the award. In the present case it is not the merits of the award that were referred to by the learned District Judge but he considered only the objections which were tenable under paras. 14 and 15 of Sch. II, Code of Civil Procedure, and came to the conclusion that there was misconduct on the part of the arbitrator which vitiated the award ILR (1936) Nag 44 (’36) 23 AIR 1936 Nag 197 , 166 IC 556 , ILR (1936) Nag 44 has therefore no application to the facts of the present case.
9. On the contrary it appears to me that this is a case in which the lower Appellate Court has taken a reasonable view of the conduct of the arbitrator and has rightly held that the award was such as could not be filed, and as the lower Appellate Court confined itself only to the objections that are tenable under paras. 14 and 15 of Sch. II, Code of Civil Procedure, and has not traversed beyond them there is no reason as to why there should be any interference in revision of the decision of the lower Appellate Court. Even if the decision of the lower Appellate Court were erroneous that would not be sufficient to enable me to interfere with the decision in revision: ILR (1936) Nag 73. (’36) 23 AIR 1936 Nag 157 , 164 IC 848 , ILR (1936) Nag 73 Their Lordships of the Calcutta High Court in 30 Cal 3979 laid down that the High Court cannot interfere (in revision) merely because the lower Court has taken in the exercise of its jurisdiction a mistaken view as to what does or does not constitute misconduct. The scope of revision under S. 115 is very limited and nothing has been argued before me which will bring the case for interference within that limited scope. The application for revision is rejected with costs. Counsel's fee Rs. 30.
D.S/R.K
10. Application rejected.