1962 Present : Basnayake, C. J., Sansoni, J., and H. N. 6. Fernando, J.

R. CHELLIAH, Appellant, and N. NAVARETNAM, Respondent

S. C. 459A-B/58-D. C. Jaffna, 349/M

    Civil Procedure Code-Reference to arbitration-Procedure-Requirement of application in writing-Sections 676, 677, 691(2), 692, Form 108 of Schedule.

    Held (BASNAYAKE, C. J. dissenting), that a minute made by the Judge of an oral application of the parties or their lawyers that all matters in dispute between the parties be referred to an arbitrator, coupled with the signature of the minute by the parties to the action in token of their consent to the reference, is a valid application in terms of section 676 of the Civil Procedure Code, which requires an application in writing.

    Madasamy v. Amina (1951) 45 C. L. W. 40, not followed.

    APPEAL from a judgment of the District Court, Jaffna.

    H. V. Perera, Q. C., with S. Sharvananda and S. T. Croos, for Defendant-Appellant in both Appeals.

    C. Ranganathan, with E. B. Vannitamby, for Plaintiff-Respondent in both Appeals,

Cur. adv. vult.

March 16, 1962. BASNAYAKE, C. J.-

    The question that arises for decision on this appeal is whether-

    (a) an application under section 676 of the Civil Procedure Code should be made in writing by the parties themselves or by their specially authorised Proctors and should contain a statement to the effect that they desire that any matter or matters in difference between them should be referred to the determination of the arbitrator.

    (b) it is open to a party to an action who has participated in an arbitration to object to the award on the ground that the order of reference has been made without the conditions precedent to such an order being satisfied.

    Shortly the facts of the case are as follows :-Nagalingam Navaretnam the plaintiff sued R. Chelliah for the recovery of the sum of Rs. 10,670 and the return, of certain implements, machinery, and other articles set out in Schedule A to the plaint. The defendant denied his liability and claimed in reconvention a sum of Rs. 5,629.86. The plaintiff in his replication asked that the defendant's claim in reconvention be

dismissed. The trial of the action was postponed from time to time and eventually took place on 20th May 1957. On that day both parties were represented by counsel and the record reads as follows :-

    "At this stage learned counsel on both sides move that the matter in dispute between the parties in this case be referred to the sole arbitration of Mr. S. Kulasingham, Managing Director, Jaffna Co-operative Stores Ltd., and that his award will be final and accepted by the parties.

    Each party to deposit a sum of Rs. 73'50 as preliminary fees of the arbitrator.

    Parties consent to the above terms and sign the record. Reference and arbitration fees on 22. 5. 57."

    The document which represents the application of the parties under section 676 is a shorthand note signed by them without more. It was assumed at the hearing of this appeal that the transcript of the shorthand notes is contained in the minute I have quoted above. Now section 676 is in the following terms :-

    (1) If all the parties to an action desire that any matter in difference between them in the action be referred to arbitration, they may at any time before judgment is pronounced apply, in person or by their respective proctors, specially authorised in writing in this behalf, to the court for an order of reference.

    (2) Every such application shall be in writing, and shall state the particular matters sought to be referred, and the written authority of the proctor to make it shall refer to it, and shall be filed in court at the time when the application is made, and shall be distinct from any power to compromise or to refer to arbitration which may appear in the proxy constituting the proctor's general authority to represent his clien