Judgement

Appeal (No. 31 of 1920) from a judgment and decree (November 6, 1918) of the High Court in its appellate jurisdiction, reversing a decree of the Court in its original civil jurisdiction.

The suit which gave rise to the appeal was brought in the High Court at Madras by the appellants, merchants carrying on business in London, against the respondent, a merchant at Madras. Among other causes of action the appellants sued upon an award in their favour made under a submission to "

Law Rep. 49 Ind. App. 174 ( 1921- 1922)

L. Oppenheim and C ompany V. Mahomed Haneef

53

arbitration in London in the usual manner " contained in a contract of sale made between the parties. To that cause of action the respondent pleaded that the award was not binding upon him, as no notice had been given him by the arbitrator that he was proceeding to arbitrate. The facts are more fully stated in the judgment of the Judicial Committee.

The trial judge (Coutts Trotter J.) made a decree for the amount awarded, holding that under the submission the arbitration was to be governed by the law applicable to arbitrations in England, and that upon the authority of Tharburn v. Barnes (( 1867) L. R. 2 C. P. 384.) the defence could not be raised in the suit.

On appeal the decision was reversed by Sir John Wallis C.J. and Napier J. The learned Chief Justice (with whose judgment Napier J. agreed) was of opinion that the rule in England that misconduct in making an award was not a good plea to an action on the award did not apply in India, since there was no distinction between law and equity and any ground for equitable relief could be raised as a defence. They referred to three decisions of the Courts in India mentioned in the argument for the appellants, and concluded by saying that the English doctrine on which the above rule rested was of a highly technical character and could not, in their opinion, be imported into India under the terms of justice, equity or good conscience.

1922. Feb. 17. De Gruyther K.C. and Harold Morris K.C. for the appellants. The alleged irregularity was not a defence to the suit upon the award. The contract provided for " arbitration in London in the usual manner." It was clearly the intention of the parties that their rights under that part of the contract should be governed by the law prevailing in England, and consequently that law applied Hamlyn & Co, v. Talisker Distillery. ([ 1894] A. C. 202, 207.) It is well established in English law that in an action upon an award, irregularity or misconduct in the arbitration proceedings is not a defence Thorburn v. Barnes. (( 1867) L. R. 2 C. P. 384.) The award can be set aside if those grounds-are established upon motion under s. 11 of the Arbitration Act, 1889 ; that was the only course available in this case if the validity of the award was to be attacked. Bindessuri Per shad Singh

v. Jankee Per shad Singh (( 1889) I. L. R. 16 C. 482.) ; Surjan Raot v. Bhikari Raot (( 1893) I. L. R, 21 C. 213.) ; and Ghellabhai Atmaram v. Nandubai (( 1895) I. L. R, 20 B. 238.) were cases as to arbitrations in India, and do not apply where the parties have by their contract submitted to arbitration in England. The appellate Court in the present cases thought that the English rule was of a technical character, and not within justice, equity, or good conscience. It is, however, submitted that the parties having, by the law which they have agreed is to apply, a good remedy, are fairly precluded from pursuing a different remedy. [Reference was also made to the Code of Civil Procedure, 1882, ss. 520, 521, 525 ; and the Code of Civil Procedure, 1908, clauses 20, 21.]

The respondents representatives did not appear.

March 7. The judgment of their Lordships was delivered by

VISCOUNT CAVE. This is an appeal from a decree of the High Court of Judicature at Madras, in the exercise of its appellate jurisdiction, allowing an appeal from a decree made by Coutts Trotter J. in the exercise of the ordinary original civi