Aitken Spence Amp Co V. Fernando

AITKEN SPENCE & CO. v. FERNANDO.

D. C., Colombo, 12,706.

Arbitration-Special authority to proctor under s. 676 of the Code to refer a matter to arbitration-Stamp thereon-" Recognized agent"-Necessity of filing power of attorney in Court-When to be filed-Effect of an arbitrator proceeding ex parte-Setting aside award-Misconduct of arbitrator under 8. 601 (a) of the Code-Cost of successful appellant refused for perverse conduct-Entering decree after appeal filed against previous order.

The special authority under section 676 of the Civil Procedure Code to a proctor to refer a matter to arbitration need not be stamped.

The requirement of section 25 (b) of the Civil Procedure Code, that the power of attorney in favour of a " recognized agent " or a copy thereof should be filed in Court, is complied with by such power or copy being filed at any stage of the case, and not necessarily when the recognized agent takes his initial step therein.

An arbitrator cannot, under the Roman-Dutch Law, proceed in the absence of one of the parties; and where he hears a case ex parte he is guilty of misconduct under section 691 (a) of the Civil Procedure Code and his award will be set aside.

The costs of a successful appellant will be disallowed for discreditable and perverse conduct on his part.

Where an appeal has been filed against an order of the District Judge refusing to set aside an award, he ought not to enter up a decree in terms of the award, but should wait till the Supreme Court decides whether the award should stand or not.

THE plaintiffs sued the defendant for the recovery of Rs. 51,254.19, being damages alleged to have been sustained by the plaintiffs by reason of failure on the part of the defendant to deliver to the plaintiffs certain plumbago sold to them by the defendant. The defendant pleaded that he was not liable to deliver the plumbago, inasmuch as the sale had been cancelled by the two parties; and the defendant counterclaimed from the plaintiffs a sum of Rs. 17,750.87, being balance value of certain plumbago sold and actually delivered by him to the plaintiffs.

On the joint application of the parties, the matters in dispute in the case were on the 1st February, 1900, referred to the arbitration of Mr. H. L. Wendt, Advocate. He was required to make his award on the 1st March, 1900. The due date of the award was on the 27th February, 1900, extended by the Court with the consent of both parties to the 15th March, 1900. After notice to both parties, the arbitrator began the hearing on the 28th February, 1900, and adjourned it to the "3rd March, 1900, and again on the latter day to the 10th March. 1900, when the hearing was concluded, and the arbitrator took time to consider his award. Although due notice, was given of the hearing on the 28th February, 1900, and of each of the adjournments, the

defendant did not appear before the arbitrator. His proctor wrote to the arbitrator that his client "'withdraws from the " arbitration and revokes his mandate to you to arbitrate in the " matter." as he wanted his case to be heard by the District Judge in open Court with the aid of assessors, in view of the conflict of evidence that was sure to arise in the case. The arbitrator replied: " I should be most happy to discontinue proceedings in " the arbitration, if both parties agreed. Without such agreement, " I consider it entirely out of my power to do so." The proctor for plaintiffs replied: " I have been advised by defendant's counsel " to point out that an arbitrator has power, under section 679 of " the Procedure Code, to refuse to act under the reference, and " that the unwillingness of my client would be good ground for " such refusal. With regard to any hardships that may be " occasioned to the plaintiffs by reason of the arbitration being " dropped at this stage, I undertake on behalf of my client to " make good all expenses and costs of the plaintiffs as well as

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