Judgement

Appeal (No. 78 of 1921) from a judgment and decree of the High Court in its appellate jurisdiction (December 13, 1920) reversing a decree of that Court in its original civil jurisdiction (March 15, 1920).

The respondent firm brought a suit in the High Court against the appellant firm claiming (a) a declaration that eleven awards of an arbitrator dated September 28, 1916, purporting to be made under eleven contracts for the sale of jute by the respondent firm to the appellants were void; (b an injunction restraining the appellants from withdrawing the sum of Rs.68,574, or any part thereof, from the sheriff ; (c) a declaration that the plaintiffs were entitled to a refund of the said sum. There was also a claim to damages, which was given up.

The circumstances in which the suit was brought fully appear from the judgment of the Judicial Committee.

The suit was tried by Ghose J. and was dismissed. On appeal that decision was reversed, the learned judges (Sanderson C.J. and Richardson J.) being of opinion that the appellants were not entitled to proceed under s. 9 (b) of the Indian Arbitration Act, since the submission contained in the contracts showed an intention differing from that section.

A decree was made declaring the awards to be void and inoperative, and it was further ordered by the consent of the- parties that the respondent firm should pay to the appellants Rs.68,574 received by them from the sheriff, the appellants undertaking to return the said sum if the awards were held by the Judicial Committee to be valid.

1922. June 21, 22. Sir John Simon K.C. and S. Hyam for the appellants. It was too late to contend that the awards were invalid since they had been filed in Court, thereby acquiring the character of decrees, and had been executed under s. 15. The matter thereafter was in the hands of the Court. Secondly, the letters in July, 1916, amounted to an agreement, or raised an estoppel, that the associations by-law 15 was not to apply, but that the procedure should be according to Act. Thirdly, by-law 15 applies only where a party has wholly failed to appoint an arbitrator, not where an arbitrator has been appointed but has died or has withdrawn. Fourthly, the suit was not maintainable, since by s. 56 (a), (b), of the Specific Relief Act, 1877, no injunction could be asked for, the suit became therefore one simply for declarations and was therefore invalid under s. 42 of that Act. The awards were not out of time, since the period allowed runs only from the time when the arbitrators enter upon the reference.

Dunne K.C. and J. K. Roy for the respondent firm. The terms of the submission in the contracts, especially having regard to by-law 15 of the association, show a " different-intention " from s. 9 of the Act, consequently the section is by its terms inapplicable ; the appointment of the sole arbitrator was therefore wholly inoperative. The appellants should have followed the procedure provided by by-law

15. Under s. 15 of the Act an award filed under s. 11 is not a decree, but only enforceable as a decree. The proceeds of the execution are no longer in the hands of the sheriff, but were dealt with by consent. The suit was maintainable, although no steps had been taken under the Act to set aside the awards, because the awards were not merely irregular, but made without jurisdiction Oppenheim & Co. v. Mahomed Haneef. (( 1922) L. R, 49 I. A. 174, 180.) The contention as to the letters in July,

Law Rep. 49 Ind. App. 366 ( 1921- 1922)

E. D. Sassoon and Company V. Ramdutt Ramkissen Das 170

1916, was not advanced in the Courts below ; in any case those letters do not amount to an agreement or give rise to any estoppel. Having regard to the relief prayed s. 42 of the Specific Relief Act did not preclude the suit being maintained.

S. Hyams replied.

July 20. The judgment of their Lordships was delivered by

VISCOUNT CAVE. This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, in its ci