Judgement

Appeal (No. 107 of 1927) from an order of the High Court in its appellate jurisdiction (November 8, 1926) affirming an order of that Court in its original jurisdiction (April 19, 1926).

The appeal arose out of an award of arbitrators appointed in 1922 whereby the respondents were awarded damages for the defective quality of jute delivered by the appellants under contracts of sale made in 1913 and 1914 ; the award was subject to the opinion of the Court on the questions (1.)

Law Rep. 56 Ind. App. 128 ( 1928- 1929) Ramdutt Ramkissendass V. F. D. Sassoon and Company

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whether the defence of limitation could be raised, and if so (2.) whether the buyers (respondents) claim was barred.

The facts appear from the judgment of the Judicial Committee.

The opinion of the Court delivered by Sanderson C.J. and Rankin was that the defence of limitation could be raised but that the claim was not barred.

That judgment not being open to appeal the appellants petitioned that the award (to which the opinion of the Court had been directed to be added) should be set aside on the ground that there was an error upon its face. The petition was dismissed by Buckland J. and that decision was affirmed on appeal by Rankin C.J. and Ghose J.

1928. Nov. 13,15. De Gruyther K.C. and W. Wallach for the appellant. The respondents claim was barred by limitation. The High Court rightly held that the defence of limitation could be raised In re Astley and Tyldesley Coal and Salt Co. (( 1899) 68 L. J. (Q. B.) 252.); and Russell on Arbitration, 11th ed., p. 394. In Board of Trade v. Cayzer Irvine & Co. ([ 1927] A. C. 610, 614.) in the House of Lords the above decision was referred to with approval by Viscount Cave L.C. The claim was therefore barred by the Indian Limitation Act, 1908, Sch. L, art. 115. The view of the Appellate Court that the arbitration of 1922 was a continuation of that commenced in 1915 was erroneous. When the first award was made the proceedings of 1915 ended; the arbitrator became functus officio. The terms of s. 14 makes it impossible to apply that section to the period between 1917 and 1922 occupied by the appellants suit to set aside the earlier award. During that period the respondents were not even by analogy " prosecuting " a civil proceeding. If the respondents had brought a suit in 1922, s. 14 clearly would not have applied.

Dunne K.C. and S. Hyam for the respondents. The principle of In re Astley and Tyldesley Coal and Salt Co. (( 1899) 68 L. J. (Q. B.) 252.) does not apply to this case. In England procedure by arbitration in mercantile matters was established after the Statute of Limitations. In India it was established before the Indian Limitation Act, 1908, and the Indian Arbitration Act, 1899. Yet the Indian legislature expressly refrained from prescribing any period of limitation for arbitration proceedings. If, however, the defence of limitation could be raised in the present case, the claim was not barred. The High Court rightly held that the arbitration was a continuous proceeding commenced in 1915. Further, it would be inequitable to apply the provisions of Sch. I. of the Limitation Act without applying by analogy s. 14. Upon the facts of this case, and so applying s. 14, the claim was not barred. In any case it is submitted that the proceedings being under the Indian Arbitration Act, not under the Code of Civil Procedure, the present appeal does not lie.

De Gruyther K.C. in reply. The arbitration in Champsey Bhara & Co.s case (( 1923) L. R. 50 I. A. 324.) was under the Indian Arbitration Act, but it was not suggested that the appeal did not lie. It is conceded that the language of ss. 13, 19 and 20 of the Limitation Act makes it possible to apply them by analogy to an arbitration, but that is not so in the case of s. 14.

1929. Jan. 24. The judgment of their Lordships was delivered by

LORD SALVESEN. This is an appeal from an order of the High Court of Judicature at Fort William in Bengal, dated November 8, 1926, which