092-NLR-NLR-V-62-THE-UDUWA-CO-OPERATIVE-STORES-SOCIETY-LTD.-Appellant-and-UKKU-AMMA-et-al.-Res.pdf
WEERASOORITA, J.—The Uduwa Co-operative Society Ltd. v. Ukkit Amrna 481
Present : Weerasooriya, J., and L. B. de Silva, J.
THE UDUWA CO-OPERATIVE STORES SOCIETY LTD., Appellant,
• and TJKKU AMMA et nl., Respondents
S. C. 401—D. C. Kandy, 2143jX
Co-operative Societies Ordinance {Cap. 107), as amended by Act ATo. 21 of 1040—Sections 45 (1), 45 (2) (6), 46 (1)—Dispute between registered society and heirs
of a deceased office}Arbitration proceedings—All the lieirs need not be mrule
parties—Deference docs not require consent of both parties to the dispute—Awardof arbitrator—Procedure for its enforcement—Validity of Rule 3S (13).
A roforonco of a clisputo unclor soot ion 45 (1) of M io Co-operative SooiofciosOrdinance need not bo in fclio form of an agreed statement signod by bothparties to tho dispute. A roforonco made ex parte by the cominittoo of tbosociety wotikl bo valid.
J-tulo 38 (13) inado iindor section 40 (1) of tbo Co-oiiorativo Sociotios Orcli-mmvQ and enabling an award to bo onforeod in tho siuno maimor its a docrooof court is not ultra vires.
In a dispute between a registered co-oporativo society and tho heirs of adecoasod officor of tho society, all tho heirs nood not bo mado respondents totho arbitration procoodings. Section 45 (1) (c) of tho Co-oporativo SociotiosOrdinance (as amended by Act No. 21 of 1949) specifically providos for thoroforonco of a dispute arising between a registered socioty and any heir of adocoasod officor.
_^^_PPEAL from an order of the District Court, Kandy.
E. B. Wikramanayake, Q.G., with G. R. Gunarahie, for petitioner-appellant.
H. W. J ay ewar dene, Q.C., with A. M. Ameen, for respondents.
Gur. ctdv. vult.
January 25, 1961. Weerasooriya, J.—
One M. P. Herat, ivho ivas the treasurer of the appellant society (TheUduwa Co-operative Stores Societ}' Limited) died on the 28th February,
.At the time of his death there was due from him to the So-ciety a sum of Rs. 2,420"22 cents being the balance of moneys receivedby him on behalf of the Society and not accounted for. He left as hisheirs his widow, who is the 1st respondent, and five children, four ofwhom arc the 2nd to the 5th respondents. The other child is said tobe a minor and is no party to these proceedings.
On the 12th May, 1955, the committee of the Society referred fordecision under section 45 (1) of the Co-operative Societies Ordinance,as amended by the Co-operative Societies (Amendment) Act, Ho. 21 of1949, a dispute said to have arisen between the Society and the res-pondents in regard to their alleged liability, as the heirs of the deceasedtreasurer, to pay to the Society the said sum of money. The dispute was
21—EXIT
2—j. N. R1639S—2,033 (4/01)
4S2 WEERASOORIYA, J.—The Uduxoa Go-operaliva Society Lt-l. v. Uhhic A/nrn
thereupon referred in terns of section 45 (2) (6) for disposal by an arbit-rator, -who in due course made an award directing the respondentsointly and severally to pay to the Society the sum of Rs. 2,420'22 cents.
On the 15th June, 1956, the appellant filed the award in the DistrictCourt of ICandy and moved by way of summary procedure to have itenforced as a decree of Court. Thereafter, on an order nisi entered bythe Court, the respondents appeared and filed a statement setting outvarious grounds against the appellant’s application being allowed. Butas they had not filed any affidavit in support of those grounds, they wereinformed by the Additional District Judge that they should state orallytheir objections to the enforcement of the award, and that he wouldproceed to inquire into those objections. The proctor for the respondentsthen called the 1st respondent as a witness and elicited from her certainobjections to the validity of the award. On a consideration of theseobjections the Additional District Judge discharged the order nisi anddismissed -with costs the application of the appellant to have the awardenforced as a decree of Court. From this order the appellant hasappealed.
One of the objections taken by the 1st respondent was that her consenthad not been obtained to the arbitration proceedings and that she wasnot a part}' to the reference of the dispute. This objection was upheldby the Additional District Judge on the strength of the opinion of myCord the Chief Justice in Don Nevens v. Halpe Katana Co-operative StoresLtd.1, that the proper way in which a dispute should be referred fordecision under section 45 (1) of the Co-operative Societies Ordinanceis “ to send to the Registrar an agreed statement setting out the relevantfacts and the matters in dispute sigued by both parties to the disputeThe Additional District Judge also took the view (although the pointwas not specifically raised in the form of an objection by the 1st res-pondent) that Rule 38 (13) made under section 46 (1) of the Co-operativeSocieties Ordinance, and which provides for the enforcement of anaward as a decree of Court, is ultra vires. This finding was also basedon an opinion to that effect expressed by my Lord the Chief Justice in thesame case. But in regard to those opinions, it should be mentionedthat L. W. dc Silva, J., who was the other member of the Bench whichheard that case, while concurring in the order allowing the appeal,stated that he did so only on the ground that there was a breach of arule of natural justice in that the appeal filed against the award of thearbitrator was dismissed without the appellant having been given ahearing ; and he added that since the procedure to be followed in refer-ring a dispute to the Registrar for decision in terms of section 45 of theCo-operative Societies Ordinance was not a point which was arguedbefore them, he 'was refraining from expressing an opinion on that matter.If I may say so with respect, the two opinions of my Lord the ChiefJustice to wliich I have referred cannot, therefore, be said to form part,of the decision in. that case.
1 (195G) 57 2J.Ij.JI. 505-
WEE RASOOR1YA, J.—The Uduiva. Co-oqieralive Society Lid. v. Ukhu Atnmn 483
In The Pinikahana Kahaduwa Co-operative Society Ltd. v. Tier at h,1which was an appeal specially reserved for hearing before a Bench offive Judges in view of the decision in Lon Nereus v. Halpe Katana Co-operative Stores Ltd. (supra), the majority of the Bench expressly dissentedfrom the opinion of my Lord the (5hief Justice that Rule 38 (13) is ultravires. They would also appear to have dissented from the other opinionexpressed by my Lord the Chief Justice that a reference of a disputeunder section 45 (1) of the Co-operative Societies Ordinance shouldbe in the form of an agreed statement signed by both parties to thedispute. For they upheld as valid the award of the arbitrator notwith-standing that the reference in that case had been made ex parte by thecommittee of the society (a fact which I have verified from the record).Pulle, J., who delivered the majority judgment, pointed out that theprocedure to be followed was already set out in Rule 38 (13), whichprovides for a reference by, inter alia, the committee of the societyconcerned.
At the time when the order appealed from in the present case wasmade, The Pinikahana Kahaduwa Co-operative Society Ltd. v. Herathcase had not yet been decided by this Court. In view, however, of themajority judgment in that case, the finding of the Additional DistrictJudge that the award in favour of the appellant is not enforceable as adecree of Court cannot be sustained on the grounds stated by the learnedJudge.
At the hearing of the appeal Mr. Jayewardene for the respondentstook two further objections, neither of which had been stated by the1st respondent at the inquiry. One objection is that no dispute is shownto have arisen between the Society and the respondents (in the sensethat a. demand for payment was made by the former and repudiated bythe latter) prior to the reference of the alleged dispute for decision undersection 45 (1) of the Co-operative Societies Ordinance, and, therefore, thereference was invalid and all the steps subsequently taken under section45 were of no force or avail in law. Paragraph 5 of the affidavit filedby the president of the appellant Society contains, however, a catego-rical statement that after the death of the deceased treasurer a disputearose between the Society and the respondents as to what sum of moneywas in his hands as treasurer of the Society and what sum the respondentsas his heirs should pay the Society. No evidence to the contrary wasadduced by the respondents at the inquiry. In my opinion this objectionfails. The other objection is that since the dispute, if any, involved allthe heirs of the deceased, all of them should have been made respondentsto the arbitration proceedings. I do not think that this objection istenable seeing that section 45 (1) (c) of the Co-operative Societies Ordi-nance (as amended by Act No. 21 of 1949) specifically provides for thereference of a dispute arising between a registered society and any heiror legal representative of a deceased officer or employee.
1 (1957) 59 N.L.71. 145.
484
The Qiteen~v.''A.ppuhamy
The order dismissing with costs the application of the appellant for theenforcement of the award as a decree of Court is set aside. The recordwill be returned to the District Court with a direction that the award beenforced as a decree of that Court. The respondents will pay the appellantthe costs of this appeal and also a sum of Rs. 105 fixed by the Addi-tional District Judge as costs of the inquiry in the District Court. Inview of this order I -wish to advert to a matter which was incidentallydiscussed at the hearing of the appeal without, however, any argumentbeing addressed to us on the point, namely, whether in the enforcementof the award as a decree of Court all the property of the respondentswhich falls within the description of “ property ” in section 218 of theCivil Procedure Code is liable to be seized and sold in realisation of theamount due under the award, or only such property as came into theirhands as the heirs of the deceased. The question is not one which ariseson this appeal. It may or may not arise in the course of the executionproceedings that will take place as a result of the award being enforced,and is reserved for decision if and when it does arise.
B. x>e Silva, J.—I agree.
Appeal allowed.