Gunawardene, S.D.A. V. Muttiah Pillai, M.

1952 Present: Gratiaen J. and Pulle J.

S. D. A. GUNAWARDENE, Appellant, and M. MUTTIAH
 PILLAI et al., Respondents

S. C. 73-D. C. Colombo, 804/X
 

Arbitration without intervention of Court--Ex-parte award-Delay in making award- Validity of award-Effect of regular action filed subsequent to reference to arbitration-Bribery of arbitrator-Strict proof necessary-Arbitration Ordinance {Cap. 83), s. 7--Civil Procedure Code, ss. 386, 691 (2), 696.

Where parties, without the intervention of Court, voluntarily submitted a matter in dispute to arbitration and the award of the arbitrator was attacked on various grounds under section 691 (2) of the Civil Procedure Code

Held, (i) that the neglect or refusal of one of the parties to avail himself of the opportunity of presenting his case before the arbitrator did not invalidate the subsequent proceedings or disqualify the arbitrator from exercising his jurisdiction in the matter.

(ii) that delay of the arbitrator in making his award did not constitute " misconduct" on his part because no time limit was fixed in the terms of reference and the delay was largely occasioned by the dilatory and non-co-operative methods employed by the party objecting to the award.

(iii) that a reference to arbitration is not superseded by the institution of a subsequent regular action, unless the subject matter of the arbitration and the subject matter of the regular action are clearly identical.

(iv) that there was nothing improper in an arbitrator accepting from one of the parties, before the date of the award, the fee payable by that party in accordance with an agreement which bound all the parties.

(v) that the Court should not, by reference to affidavits alone, have arrived at a finding of corruption or misconduct against the arbitrator. Before reaching such a conclusion on a disputed allegation the Court should have framed issues of fact and heard oral evidence.

APPEAL from a judgment of the District Court Colombo.

S. J. V. Chelvanayakam, Q. C. with P. Colin-Thome, for the petitioner appellant.

C. Thiagalingam, Q. C., with C. Manohara, for the respondents.

Cur. adv. vult.

July 17, 1952. GRATIAEN J.-

It is convenient at the outset to recite the facts regarding which there is no controversy between the parties. The petitioner and the respon dents had formed a business association in or about November, 1947, whereby they carried on a commercial venture under the name, style and firm of " Muttiah Pillai and Co. " with a view to then mutual financial advantage. On 4th September, 1948, they agreed to terminate their so-called " partnership " and to submit the disputes which had arisen in connection therewith to the arbitration of a man named

H. E. Weerasinghe. The reference to arbitration, which also incorporates the agreement to dissolve the business, is contained in a document dated 4th September 1948 signed by all the parties in the following terms :-

" We the undersigned M. Muthiah Pillai, K. Selvadurai and S. D. A. Gunawardene being the three partners of the firm of Muthiah Pillai & Company do hereby give notice to each other of the final dissolution of the abovenamed Partnership and agree unconditionally to the following procedure with regard to the winding up of the said firm :-

(1) That we appoint Mr. Hettiaratchige Edwin Weerasinghe to act as the sole arbitrator in the dissolution of the partnership.

(2) That we submit to him within the fortnight hereof all account or accounts connected with the affairs of the said Muthiah Pillai & Co.

(3) That our individual statements of accounts showing the actual capital outlay contributed and the profits or payments received from the funds of the firm to be submitted to the said Mr. Weerasinghe before the specified date.

(4) That we agree unconditionally to accept as full and final settlement any settlement or decision that the said Mr. Weerasinghe as Arbitr

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