010-NLR-NLR-V-61-K.A.-SOMASUNDRAM-SARMA-et-al-Appellants-and-S.-KRISHNAPILLAI-et-al-Responden.pdf
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Somasunderam Sarnia v. HrishnapiUai
1957
Present:H. N. G. Fernando, J., T. S. Fernando, J., and Slnnetamby, J.K.A. SOMASUNDERAM SARMA et al., Appellants, and,
S. ERISHNAPILLAI et al., Respondents.
S. G. 200—D. C. Batiicaloa, 954j Mis.
Arbitration—Award of arbitrator—Grounds for setting it aside.
An arbitrator who was appointed by Court, with the purported consent of-ail the parties to an action, to investigate and decide all the matters in disputebetween the parties did not permit the 2nd defendant to present his case atthe inquiry.
Held, that if the Court had had no power to include the 2nd defendant’sclaim in the matters under reference, the consent of the 2nd defendant to thereference to arbitration was invalid because it was given in the expectationthat his claim would be entertained by the arbitrator. If on the other handthe 2nd defendant’s claim was properly made a subject of the reference, thenthe award was invalid because the arbitrator refused to entertain and considerthat claim.
H. K. G- FEB2TA2TDO, J—Somaaunderam Sarma v. KrishnapiUai
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■^~Lp~PTT. AT. from an order of the District Court, Battiealoa.
Ff. ~W. Jayewardene, Q.C., with T. P. P. Cfaonetillehe, F. Thillctinaihctnand N. R. M. Daluwatte, for the defendant-appellant.
Ranganathan, with P. Naguleswaram, for the plaintiffs-respondents.
Our. adv. mdt.
December 10, 1957. H. 1ST. G. J’eswajstdo, J.—
In this action a number of persons as plaintiffs sued the present firstdefendant for ejectment from the premises of a Hindu temple and forcertain other reliefs on the footing that the plaintiffs are the lawfullyelected committee of management of the temple, that the 1st defendanthad been appointed priest of the temple by the ten trustees thereof, andthat the plaintiffs had given notice terminating the services of the 1st.defendant on the ground of alleged misconduct. The 1st defendant filedanswer on 7th August 1952 and subsequently filed an amended answer■on 5th November 1952. On 6th November the original 3rd plaintifffiled an affidavit moving to withdraw from the case. This motion wasput off for consideration and on 24th February 1953 the 3rd plaintifffiled fresh prosy for the purpose of cancelling the proxy originally grantedby him to the Proctor for the plaintiffs. The journal entry made by theDistrict Judge on this occasion was to the effect that the consent of thelatter Proetor to the revocation should be filed. It would appear thatthis consent was ultimately filed although no mention of the matter ismade in the journal entry.
On 4th August 1953 the following entry was made of record and it wassigned by the present 1st defendant and by some of the plaintiffs :—
“ Mr. Subramaniam for pltff. & Mr. Adv. Hanagasunderam-Mr. Edwards for defdt. & Mr. Adv. Ariaretnam. Parties are agreeableto refer all matters in dispute to the arbitration of Mr. BasamanikamM. P. for Padirippu whose decision parties agree to accept as final.Parties agreed to meet expenses in equal shares.
Papers for 7.8.53 and Receipt. ’5
Thereafter on the same day the learned Judge has made the followingfurther entry which has been signed by the original 3rd plaintiff who isnow the 2nd defendant and described as such below his signature.
rc 3rd plaintiff !K. P. Seenitamby states that he is not (sic) a sole trusteeof the temple and as such his interests, are adverse to the plaintiffsand other defdts.
He is agreeable to have this claim of his also decidedby the Arbitrator -Under sec. 18 C. P. C. I now mate him a defendant styling him asthe 2nd defendant. He now signs record. Mr. Subramaniam consents■to the revocation of this proxy.
Mr. Theivanayagam will 61ft fresh proxy on 6/8. Call 6/8 for the otherpltffs. to appear to sign their consent reference for arbitration. **
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~FT. N. G. FEiRJSTAJ^DO, J.—Somasunderanm, Sarma v. BLrishnapUlai
On 6.8.53 the remaining parties plaintiff signed the record after the termsof settlement and the reference were read to them.**
We understand from Counsel that when this Appeal was argued before*a Bench of two Judges there was disagreement on the question whether-the signing of the record by the parties was a sufficient compliance with.the requirement that there should be an application in writing for areference, signed by all the parties. In the event, however, we find it-unnecessary in the circumstances of this case to deal with that question _
At the inquiry before the arbitrator the 2nd defendant desired to pre-sent his case, namely that he had title to the land on which the temple*stood and that he is the sole heir to the administration and management-,of the temple. The arbitrator however thought that this rival claimito the property would be outside the scope of the inquiry and that the-2nd defendant’s claim should be the subject of a separate action in theCourts. He therefore did not permit the 2nd defendant to present his.case at the inquiry. The principal objection taken before the DistrictJudge to the award ultimately made was based on the failure of the*arbitrator to decide the matter in. dispute raised by the 2nd defendants
In my opinion the simple question which arises is whether in signing the*record on 6th August 1953 the 2nd defendant consented to the reference-to arbitration only of the dispute between the plaintiffs and the 1st-defendant outlined in the pleadings, or whether on the contrary hiAagreement to the reference to arbitration was based, on the understanding-that the claim he mentioned to the Judge on that day would be*investigated and determined by the arbitrator either as part of or in.addition to the determination of the first-mentioned dispute.
In considering this question it is of importance to bear in mind that the-provisions in the Code relating to references to arbitration are designedto secure that a Court will not yield its jurisdiction to any other tribunalunless it is manifest that all the parties voluntarily and deliberatelyconsent to an adjudication by another tribunal. To hold therefore that-there was such a voluntary and deliberate consent, there must be-circumstances which clearly establish the consent, and conductwhich is ambiguous or equivocal should not properly be regarded as-establishing consent.
In the present case the entry signed by the 2nd defendant makesit clear that he informed the Judge on 6th August 1953 of the nature ofhis claim and of his desire that it should be decided in the action.His statement recorded by the District Judge that he is agreeable to have-this claim also decided by the arbitrator means on its face that he=understood that it would be in fact so decided ; but it is argued for the-respondents that his mere oral statement to the Judge did not constitute a-
H. X. G. FERXAXDO, J.—Somasunrteram Sarma v. KrishnapUlai45
proper statement for the purposes of an action, that the statement was onlyan expression of an intention to have his claim investigated by the arbitratorin addition to the substantial dispute between the plaintiff and the 1stdefendant, that that intention could only have been carried out either byfiling an answer or by presenting an instrument of reference incorporatingthe matter to be referred for arbitration, and that that intention wasultimately not carried out. On this basis it is further argued that thesignature of the 2nd defendant constituted only an agreement to refer theprincipal matter to arbitration and that the claim mentioned by the2nd defendant to the Judge was not matter in dispute in the reference.
It is not necessary to decide in this case whether, when the nature ofthe 2nd defendant’s claim was stated orally in Court, the proper procedurewould have been for him to file answer or to set out his claim clearlyin an instrument of reference. It is almost obvious that the 2nd defendantexpected, when he signed the entry, that his claim would be investigatedand determined by the arbitrator. This question whether the intentionof the parties was that this claim should be considered merely as anindependent one or should else be taken into consideration alsoin determining the substantial dispute can receive no clear answer,but it is sufficiently clear in the circumstances that if the 2nd defendant’sclaim that he was the sole trustee had been determined in his favour,that determination might well have militated against the plaintiffs whohad set out to prove that they were trustees and had installed the 1stdefendant as priest by virtue of their powers as trustees.
In the result only two views appear to be possible, both of whichare against the plaintiffs. If the Court had no power to include the2nd defendant’s claim in the matter under reference, the consent of the2nd defendant to the reference was invalid because it was given in theexpectation that his claim would be entertained by tbe arbitrator. Ifon tbe other hand the 2nd defendant’s claim was properly made a subjectof tbe reference, then tbe award was invalid because tbe arbitrator refusedto entertain and consider that claim.
I would accordingly allow this appeal with costs and set aside the awardof 14th March 1954 made by tbe arbitrator. The case is remitted to theDistrict Court for further proceedings to be taken in Court, but it willbe open to tbe parties to seek a fresh reference to arbitration if theyso desire. The costs of the previous proceedings will abide the ulti-mate event.
T.S. Ferita^tdo, J.—I agree.
Sinxetamby, J.—I agree.
Appeal allowed.