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1855 Supreme(SC) 5
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
THE RIGHT HON. T. PEMBERTON LEIGH, THE RIGHT HON LORD JUSTICE KNIGHT BRUCE, THE RIGHT HON. SIR EDWARD RYAN, AND THE RIGHT HON. SIR JOHN PATTESON.
NUSSERWANJEE PESTONJEE - Appellant
Versus
MEER MYNOODEEN KHAN WULLUD, MEER SUDROODEEN KHAN BAHADOOR - Respondents
On appeal from the Sudder Dewanny Adawlut at Bombay.
Decided On : 19th & 20th June, 1855.
Privy Councillor,— Assessor, Sir Edward Hyde Bast, Bart
Statutory requirements for treating an arbitration award as a court decree are mandatory. The omission of a required time limit in the deed of reference is fatal, and such a jurisdictional defect cannot be cured by the mutual consent of the parties.
Headnote:(A) Regulation No. VII of 1827 - Sections 3, 6, 8 and 9 - Arbitration - Enforcement of award as a decree - Mandatory nature of statutory requirements - Jurisdiction of Court.
(B) Jurisdiction created by statute or regulation is conditional upon strict compliance with the specified terms. If these terms are not met, the jurisdiction does not arise. (Para 31)
(C) The requirement to specify the time within which an arbitration award must be given in the deed of reference is mandatory and not directory. Such a provision is intended to prevent unreasonable delays and procrastination. (Paras 32-33)
(D) Parties cannot, by mutual consent, confer jurisdiction upon a court which the governing statute does not provide. A waiver of statutory conditions by the parties does not validate an award for the purpose of treating it as a decree of court. (Para 34)
Facts of the case:
Parties referred a dispute concerning mortgaged estates to arbitration. A deed of reference was executed, but it failed to specify the time within which the award was to be delivered. Following the arbitrator's decision, the award was filed in the trial court to be enforced as a decree under the applicable Regulation. The enforcement was challenged on the ground that the omission of the time limit in the deed of reference was fatal to the award's status as a decree.
Findings of Court:
The court held that the specification of time in the deed of reference is an essential requirement of the Regulation. The omission of this detail meant the award did not satisfy the statutory criteria to be executed as a decree, regardless of whether the parties had consented to the omission.
Issues: Whether the failure to specify the time for the award in the deed of reference prevents the award from being enforced as a decree of court under the Regulation, and whether such a statutory requirement can be waived by the consent of the parties.
Ratio Decidendi: Where jurisdiction is granted by a Regulation upon specified terms, those terms must be complied with to create that jurisdiction. The requirement to fix a time for the award is mandatory to avoid procrastination. Since the deed of reference lacked this specification, the court lacked the jurisdiction to treat the award as a decree. Consent of the parties cannot override statutory mandates to create jurisdiction.
Result: Original decree restored; award taken off the file of the trial court.
Legal Category Hierarchy
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practice and procedure
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arbitration
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enforcement of awards
- statutory compliance
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enforcement of awards
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arbitration
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civil law
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property law
- mortgages
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property law
Judgement
IN this appeal the question raised was, whether an award of Mr. Frere, the agent of the Bombay Government at Surat, made upon a submission to arbitration by the Appellants and Respondent, was within the provisions of the Bombay Regulation, No. VII. of 1827 , so as to entitle it to the force of a decree of Court, or had the effect only of an ordinary award, The Order of the Sudder Dewanny Court appealed from, directed the award to be enforced as a decree of Court against the Appellants.
The Appellants were Parsee bankers, residing at Surat. The Respondent was the Bukshee of Surat, and by virtue of his rank and relationship to the Nawab of Surat, exempted from the jurisdiction of the Civil Courts, unless with the consent of the Governor of Bombay (a}.
(a) Bom. Reg.IIl. of 1827, ch. ii., sec. 21, cl. 3, confirms the stipulation made in the Articles of agreement, dated the 13th of May, 1800, between the East India Company and the Nawab of Surat, of
6 M.I.A. 134 ( 1854- 1857) Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 23
the exemption of the Nawab. his family and servants, from the jurisdiction of the Civil Courts ; and, by Bom. Reg. XI. of 1827 , ch. i., from the Criminal Courts. The Act of the Legislature of India, No. 18 of 1848 , provides for the administration of the Nawabs estate, and for certain privileges to his family. See, In re the Nawab of Surat, 5 Moores Ind. App. Cases, 499, where the principal sections of that Act are set out.
It appeared that in the years 1828 and 1830, the Respondent, in consideration of advances made to him, and for debts due by his father, mortgaged to the Appellants and others, large estates called the Mooglaee of Gundavee, in the Kingdom of His Highness the Guicowar of Baroda. On the 24th of April, 1852, the Respondent conceiving that he had grounds for being relieved from these mortgages, presented three petitions to Mr. Frere, the Government agent, under whose authority he was placed as a privileged native of rank (being a member of the family of the Nawab of Surat)t upon that subject ; and on the 27th of that month, the Appellants and two other persons, who also held property mortgaged to them by the Respondent, at the suggestion of the Bombay Government agreed to refer the subject-matter in dispute to the arbitration of Mr. Frere, and, accordingly, they executed the following aktiarnamah, or submission to arbitration—" We, Meer Akbar Ali Khan, Wd. Meer Surefuraj Ali Khan, Nusserwanjee Pestonjee, manager of the firm of Pestonjee Kalabhaee ; Cooverbaee, manager of the firm of Modee Rustomjee Hormusjee, who is his widow ; and Baee Premcoover, manager of the firm of Shett Hurgovundass Nuthoobhaee, write this (to wit) Meer Mynoodeen Khan, Wd. Meer Sud-roodeen Khan, in the matter regarding us, the creditors, presented three separate petitions in English, with their Goozerothee translations, on the 24th of April, 1852, the .same being attached at the top of this paper. In this matter, we contend, that his claim is altogether false, and the contents of the petitions are without grounds. We, therefore, in conjunction with the said Meer Mynoodeen Khan, give this aktiarnamah, authority in writing, to William Ed-ward Frere, Saheb Bahadoor, agent of Surat, to investigate this dispute, so that the~ said agent, after investigating the dispute consistently with justice, shall give his decision, which shall be agreed to by the parties. The parties shall not appeal against it ; and should the resolution of the decision be consistent with the razeenamah, it shall be agreed to by us, the parties." This deed of reference was signed by the parties, and attested by four witnesses.
Pursuant to this deed of reference, both parties appeared before Mr. Frere. Evidence was adduced, and documents and accounts of great length produced, and counsel were heard for both parties before the arbitrator, who, on the 2nd of November, 1852, made his award, by which he, in substance, decided that the Appellants had
