Barnes De Silva, W. V. Galkissa Wattarappola Co Op Stores Society

1953 Present : Gratiaen J. and Gunasekara J.

W. BARNES DE SILVA, Appellant, and GALKISSA WATTARAPPOLA
CO-OP. STORES SOCIETY, Respondent

S. C. 157-D. C. Colombo, 930/X

Co-operative Societies Ordinance (Cap. 107)-Sections 45, 46 (2) (t)-Award of arbitrator-Ultra vires-Power of Court to authorise re-reference of dispute- Enforcement of an award-Procedure.

Where a writ for the enforcement of a purported award tinder the provision of the Co-operative Societies Ordinance is recalled by a court of law on the ground that the arbitrator's decision was ultra vires and therefore inoperative, the court has no power to make an order granting to a party to the dispute liberty to take fresh proceedings under the correct section of the Ordinance. The question whether a dispute may be " re-referred " for arbitration depends on the provisions of the Ordinance.

Before an award can be enforced by court, it is the duty of the person seeking to enforce it to apply either in a regular action or at least by petition and affidavit setting out facts which prove that the purported award is prima facie entitled to recognition. The court should in the latter event enter an order nisi or interlocutory order granting the application, and notice thereof should be served on the opposite party so that he may be given an opportunity of showing cause against the proposed enforcement of the award. Then, and only then, would the court be justified in permitting execution proceedings under the Civil Procedure Code to be issued.

APPEAL from an order of the District Court, Colombo.

Colvin R. de Silva, with Ananda G. de Silva, for the defendant appellant.

H. W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiff respondent.

Cur. adv. vult.

February 18, 1953. GRATIAEN J.-

This is an appeal from an order of the District Judge of Colombo refusing to recall a writ issued for the enforcement of a purported award under the provisions of the Co-operative Societies Ordinance (Cap. 107).

I find from certain recorded admissions in the document D1 filed of record, that the appellant had been the Treasurer of the Galkissa and Wattarappola Co-operative Stores Society Ltd. (hereinafter referred to as " the Society ") during the period 20th August, 1944, to September, 1948, and a dispute had arisen between the Society and the appellant in regard to certain claims preferred against him relating to his period of office as Treasurer. That dispute was referred to the Registrar of Co-operative Societies on 13th August, 1949, for his decision, and he referred it in turn to an arbitrator named A. E. Perera for disposal. On 25th October, 1949, Perera purported to make an award directing the appellant to pay to the Society a sum of Rs. 2,210.56, and the Society applied in due course to the District Court of Colombo for enforcement of the award " as a decree ". The application was granted ex parte, but

the appellant later moved that the writ should be recalled on the ground that Perera's award had been made without jurisdiction. After some-argument on this issue, Counsel for the Society conceded in the lower Court that the arbitration proceedings were irregular and he accordingly moved to withdraw the Society's application for enforcement of the purported award. The learned District Judge made an order in the following terms :-

" in view of Mr. Misso's submissions, no execution proceedings will be permitted in this Court. Let the writ be recalled forthwith. "

In my opinion this part of the order is equivalent to an inter partes decision that Perera's purported decision was ultra vires and therefore inoperative. That decision is binding on both the Society and the appellant.

The learned Judge then proceeded to make an order granting to the Society " liberty to have its dispute with (the appellant) referred to arbitration in accordance with the provisions

Click Here to Read the rest of this document