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MRS. W. JAYASUNDERA v. KATULIYADDE CO OPERATIVE SOCIETY LTD.
NLR55V445
1954 Present; Gratiaen
J. and Gunasekara J.
MRS. W. JAYASUNDERA, Appellant, and KATULIYADDE
CO-OPERATIVE SOCIETY LTD., Respondent
S. C. 88-D. C. Kandy, X 1,456
Co-operative Societies
Ordinance (Cap. 107), as amended by Ordinance No. 21 of 1949, ss. 2, 45-Dispute
between co-operative society and ex-officer's heirs-Assistant Registrar's
unauthorised reference to arbitration-Validity of award.
Where an Assistant Registrar of Co-operative Societies acted in excess of his
powers by referring to arbitration a dispute between a co-operative society and
the heirs of an ex-officer of the society-
Held, that the award of the arbitrator was a nullity.
APPEAL
from a judgment of the District Court,
Kandy.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the 6th defendant appellant.
H. V. Perera, Q. C., with S. W. Jayasuriya, for the plaintiff respondent.
Cur. adv. vult.
March 25, 1954. GRATIAEN J.-
A person named J. M. Jayasundera was, until he died intestate on 13th February,
1949, the Treasurer of the Katuliyadde Co-operative Society Ltd. (the respondent
to this appeal). His heirs are the appellant (his widow), three minor children,
and three children by a former marriage.
After the death of Jayasundera, the respondent Society claimed from the
appellant and the other heirs a sum of Rs. 1,571 o 49 alleged to represent a
debt to the Society incurred by Jayasundera as its Treasurer. This claim was not
admitted, and a " dispute" accordingly arose between the Society and the heirs
of an ex-officer of the Society within the meaning of section 45 of the
Co-operative Societies Ordinance (Cap. 107) as amended by the Co-operative
Societies (Amendment) Act, No. 21 of 1949.
An assistant Registrar of Co-operative Societies purported to refer this dispute
on 8th August 1949 to the decision of an arbitrator in terms of section 45 (2)
of the Ordinance ; the arbitrator purported to make an award in favour of the
Society on 10th-September 1949 ; and the Registrar,
on appeal, purported to affirm
the award on 23rd January 1950. I may add in passing that throughout these
extra-judicial proceedings the minor children against whom an adverse decision
was successfully obtained were unrepresented.
On 22nd April 1950 the Society made an ex parte application in the District
Court of Kandy to have the purported award enforced as if it were a decree of
Court. In due course the appellant and the other heirs-took steps to have the ex
parte order against them vacated, but the learned District Judge held that their
objections to the validity of the award were devoid of merit. The present appeal
is from his order dated 2nd August 1951 in favour of the Society.
The arbitrator's purported award has been challenged on various grounds, but it
is sufficient for the purposes of this appeal to refer to one fundamental reason
for deciding that the award was a nullity from its-inception.
In my opinion the Assistant Registrar of Co-operative Societies (Mr. T. D. L.
Peiris) had no power to refer the dispute to arbitration under section 45 (2) of
the Ordinance on 8th August 1949. The only person who* was vested with this
statutory power at that date was the Registrar himself.
Section 2 of the Ordinance authorised the (then) Governor of Ceylon to issue a
general or special Gazette notification conferring on any Assistant Registrar "
all or any of the (statutory) powers of a Registrar ". On 19th July 1946 Mr.
Peiris was specifically given power under section 45 to " refer any dispute for
disposal to an arbitrator or arbitrators "-vide Gazette notification No. 9,581
dated 19th July 1946. This is the power which Mr. Peiris purported to exercise
on 8th August 1949.
It is important to note that the Gazette notification empowered Mr. Peiris only
to make a reference to arbitration in respect of disputes of the kind
particularised in section 45 in its unamended fo
