P L D 1961 Dacca 452 (PLP)

SA'ITAR, J.‑These six appeals by the defendant are directed against the order of the Subordinate Judge, Second Court, Dacca by which he refused to remit or set aside six awards filed in Court by the Registrar of the Tribunal of Arbitration, Dacca‑Narayanganj Chamber of Commerce and Industry. On the basis of the awards, six suits were registered which were ultimately heard analogously and. disposed of by the judgment of the learned Subordinate Judge, dated the 23rd September, 1958. The plaintiff Company; M/s. Amin Jute Mills Ltd., entered, into a contract on the 8th August 1957 with the defendant Company, M/s. Alhaj Muhammad Keramat Ali & Co. Ltd., for purchase of 5,000 maunds of jute in bales of four maunds each of two different qualities. The delivery .was to be given during the month of September, 1957 at Sholoshahar at the Chittogong siding of Amin jute Mills Ltd. The defendant supplied some quantities of jute with regard to which the plaintiff Company raised certain objections in respect of the quality and the condi?tion of the supplied jute. Later on, in terms of the contract, the purchaser referred the dispute to the arbitration, of the Dacca?Narayanganj Chamber of Commerce and Industry with the prayer for appointment of two Arbitrators. Accordingly the said Chamber of Commerce appointed two arbitrators who made six awards on 16‑11‑

57. By their awards. the arbitrators found that the jute supplied was not a fair tender under the contract. They; therefore, gave the plaintiff Company three options, one of which was to be exercised within fourteen working days, from the date of the award. We reproduce below a portion of one of the awards which are practically in identical terms. Clauses 2 and 3 of the first award are to the following effect:‑

2. That the buyers shall have the following options to be declared within 14 working days from the date of this award : (a) That the buyers may accept the aforesaid bales at the contract rate subject to the following allowances :‑ A quality allowance of Rs. 2/8/0 per Md., plus A moisture allowance of Rs. 1/12/0 per Md., on 125 K. B/ S C Bottom: A quality allowance of Rs. 1/8/0 per Md., plus A moisture allowance of Rs. 0/12/0 per Md., on' 60 K. B/s Bottom. (b) That (subject to all bales opened for inspection and arbitration purposes bein‑2 retained and paid for at the contract rate subject to the aforesaid allowances) the buyers may reject the said jute and treat that portion of the contract as cancelled, and charge the sellers market difference at the rate of Rs. Nil per Md. or (c) That (subject to all bales opened for inspection and arbitration purposes being retained and paid for at the contract rate subject to the aforesaid allowances) the buyers may reject the said jute and claim a fresh tender within 30 days from the date on which the option is declared ;

3. That in the event of the buyers' exercising option (b) or (c) above : ‑ (i) The sellers shall ‑ (a) forthwith refund to the' buyers such sums as may have been paid by the buyers to the sellers in respect of all the intact bales now remaining with the buyers out of the said 185 K. B./s bales. These clauses in the other awards differ only in respect of the quantity and type of jute. The buyer admittedly exercised the option under clause 2 (b) within the period allowed by the awards. The letters exhibit 4 series were written by the plaintiff to the defendant to intimate the same and further along with these letters the bills for the claim under that clause were also sent. The defendant was further asked to submit; the bills for the quantities of jute of the opened bales to the plaintiff in terms of the awards. As the defendant Co., failed to take delivery of the jute which it was under the terms of the awards, to take back and pay for the same together with the expenses mentioned in the awards or to submit the bills for the opened bales of jute, the plaintiff Co., submitted these bills to the Registrar, Tribunal of Arbitration, Dacca-?Narayanganj Chamber of Commerce and Industries, Dacca who along with the awards filed these bills in Court. The defendant then appeared in Court and filed objections against the awards and wanted them to be set aside or remitted to the Arbitrators. The grounds of challenge of the awards were that the Arbi?trators did not give the defendant sufficient time to contest the claim of the buyers ; that the Arbitrators did not use any machine to test the percentage of moisture in the jute supplied ; that the Arbitrators being themselves big shippers like the buyers were biased ; that the Arbitrators did not select any umpire before entering upon the reference ; that the Arbitrators having given their awards in the alternative form, the same were bad in law and inoperative, and that the awards were not made in terms of the contract. The learned Subordinate Judge, Second Court, Dacca, over?ruled the objections and further held that the objections in two of the suits were barred by limitation as they were filed out of time. It may be mentioned at the outset that Mr. H. S. Suhrawardy, who appeared in support of these appeals, has pressed' none of the grounds on which the awards were attacked at the trial Court. The learned counsel has pressed certain additional grounds which were not taken earlier, at the hearing of the appeals, for this formal applications have been filed and he was permitted to urge them. The learned counsel contends that the awards are vague and indefinite and therefore void and should therefore have been either set aside or remitted. It is pointed out that since under clause 2 (b) of the awards the buyers were to retain the bales opened for inspection and pay for them subject to the allowances mentioned in clause 2 (a) and since the awards did not mention the number of bales actually opened for inspection, the awards are unenforce?able in law. In support of this argument, reliance has been placed on the provisions of section 16 (1) (b) of the Arbitration Act; which provides that the Court may remit the award or any matter referred to arbitration, to the arbitrators where the award is so indefinite as to be incapable of execution. It is not the case of the appellant Company before us that any of the matters referred to arbitration has been left undecided by the Arbitrators. In this connection, the learned counsel has also drawn our attention to clause 3 (b) of the awards Which provides for the recovery by the buyers of all costs of unloading, stacking and reloading the rejected bales, together with the insurance, cartage and/or freight incurred thereon. As the costs of unloading, stacking, reloading the rejected bales etc., were not ascertained and mentioned in the awards they, according to the learned counsel, are vague in this respect also and are therefore incapable of execution. Before we proceed to examine the decision on which reliance has been placed in support of the above contentions, we think it worthwhile to mention certain facts which are undisputed. Before the arbitrators proceeded to inspect the jute in question, notices were issued on the 'parties, and inspection took place in the presence of both the parties. This is evident from the statement made in paragraph 11 of the petitions of objection filed in the trial Court. We have already indicated that after the awards the buyers served notices and bills which clearly stated the number of bales which were opened for inspection and these notices and bills were forwarded with the awards to the Court. Moreover, on 13‑3‑58, the plaintiff Company filed an application in Court under Order XXXIX, Rule 6 of the Code of Civil Procedure for the sale of the unopened bales mentioning their number in each case with notice to the defendant Company The defendant Company did not contest the petition. Accordingly, sale of the unopened bales was ordered on 22‑3‑

58. It may, therefore, be safely assumed that at no stage has there been a dispute between the parties with regard to the number of bales opened for inspection or the claim of the plaintiff Company in regard td the costs as mentioned in clause 3 of the awards. Mr. Suhrawardy's conten?tion, however, is that as the awards do not mention the number of bales concerned nor the amount of costs in each case and do not give the basis for calculation of the same, they are vague and unenforceable. So far as the principle of law in determining the executability or otherwise of an award is concerned, there does not seem to be any difference between the counsel of both the parties and in our view the principle is so settled by a series of well considered decisions that it cannot be disputed. The question arises about the application of the principle to the facts of a particular case. In the case of Manindra Nath Mandal and others v. Mahananda Roy and others (15 C L J 360), certain disputes regarding some immovable properties were referred to the arbitration of two gentlemen. One of the objections against the award was that it was vague and uncertain inasmuch as there were some blanks in two places in the award and in two other places the Arbitrators had decided that certain lands were to be held in tenancy right in respect whereof the rent was left unascertained and lastly in another instance the rent was assessed at one rupee, but it was not stated to whom that rent was payable. In dealing with these objections, it was observed as follows:?- "With regard to the first item, the arbitrators have laid down the principle upon which the sum payable has to be ascertained. The arbitrators have overruled the contention that the darputnidars under the document executed by Brahmomoyee and Umamoyee on the 2nd September" 1902 had made payment of the rent alleged by them. The amount of rent payable by the darputnidars to the zemindar can be ascertained without any difficulty from the darputni lease. The arbitrators have also laid down in detail the principle upon which the particular set off has to be allowed, though they have not made out of, the actual calculation and have left blank 'where a particular figure ought t6 have been inserted in their award. Under such circumstances, we are not prepared to hold that 'there is any real uncertainty in the award Higgins v. Willes (1828) 3 M & R 382; Hopcraft v. Hickman 2 S & R 130 and. Beale v. Beale (1635) Cro. Car

383. The principle is that if the arbitrator has given rules for calculating the amount of money to be paid, without stating the result of such calculation, the award is sufficiently certain, on the principle that, that is sufficiently certain which can be made certain. (Broom on Legal Maxims, 1911, p. 478) As an illustration of this Rule, reference may be made to the case of Beale v. Beale (1,635) Cro. Car. 383 in which an award was made that one party should pay to the other all such moneys as he had expanded in the prosecution of a suit. The award was held to be sufficiently certain, because the amount could be ascertained from the attorney's bill. The principle applicable to the cases of this description was lucidly stated by Mr. Justice Caushing in the case of Strong v. Strong (1852) 9 Caushing 560); where it is laid down as a principle of law that an award should be final, the meaning is not that nothing shall remain to be done to complete the execution of the award, but that the thing to be done shall have been determined and defined to a reasonable certainty. The division in that case was to be of certain chattels, the property of a partnership and the learned Judge in applying the above view of a law observed as follows : It is true that the arbitrators did not themselves actually severe the things to be divided, whether hay, grains, utensils or the like. There is nothing in the submission which requires them to effect such actual severance and mechanical distribution of those things. They adjudge in the award that the things should be divided and they decided in that proportion. In many cases, no more is possible to be done, as in an award for the division of partnership effects, which may happen at the time to be abroad or otherwise not in the personal posses?sion of either party, and of which the quantity or value is not known.; or as in the case of an award concerning objects not in their nature presently divisible or susceptible of division, such as they yet immature crop or fruit of trees, or as in the case of joint interests not in their nature capable at any time of a material severance, like the property in a ship. All these and many other examples, which readily suggest themselves, would seem to show that an award which purports to divide a property between two persons by prescribing a rule of division may well be final though the property in question be not actually divided ; may, though it be incapable of division. If the award gives a definite and certain rule for the' division, there is no want of power in the laws to apply the rule and enforce its application. Though possible doubt may attach to the doctrine by reason of the dicta in some English case, yet on the whole; it is admitted in? those very cases that if the arbitrator makes `some' regula?tion upon matters of difference, to use the words of Baron Piarke, or `gives direction' as to what is to be done, according to the language of Lord Abinger, it is decisive in favour of the award.' Again in the case of Thor v Cole (1835) 2 C M & R 367 I M & W 531 reference to eitrinsic documents was allowed for the purpose of explaining or determining an amount not named or ascertained in the award otherwise than by reference to such document. The award was that the defendant should pay to the plaintiff's attorney a certain sum which was paid by him; the bill included charges relating to the plaintiff as well as to another man ; the award was sufficiently certain, though it had not determined specifically the plaintiff's share of the bill, for since it was stated that the bill had already been delivered, it could be ascertained by a reference to it. In so far as the second item is concerned, it has been pointed out that the amount of rent has not been assessed in respect of two properties. It is manifest, however, that the substantial point in controversy between the parties was, whether those lands were to be allowed to be held under tenancy right. The question of assessment of rent was of a wholly subordinate character and the arbitrators have properly left the amount of rent to be adjusted hereinafter by a proper tribunal. In so far as the third item is concerned, namely; the party to whom the rent of one rupee was payable, it is clear that the intention of the arbitrators was that the amount should be paid to the holder of the superior interest, that is, the represen?tative of Kartick Prosad and Krishna Prosad. It follows, consequently, that the second branch of the third contention must fail." On a careful examination of the facts of the case and the above observations, we do not find any support for the contention of the appellant in this case. We may here indicate that the point that arises for determina?tion in the instant case is whether the number of bales opened for inspection and the expenses incurred in connection with unloading; reloading, etc. could be determined otherwise than by reference to the award itself. The case above referred to clearly indicates that it could be, done. We shall discuss the other decisions relied on by Mr. Suhrawardy presently but before that, we think we should observe that it is a settled principle of interpretation of awards that the Courts should make every reasonable intendment in favour of an award being a final, certain and sufficient termination of the matters in dispute. In the case of Simpson v. The Commissioners of Inland Revenue ((1914) 2 K B 842) the award of the referee which was sought to be made a rule of Court, was in the following terms :‑ "I order that any expenses incurred by the Commissioners be paid by the appellant." The Court dismissed the motion on the ground that the award was vague inasmuch as the amount of expenses mentioned could not be made certain through the taxing officers of the Court as the expression "expenses" was not known as a term in English Law. This case was considered by the same learned Judge in the case of Matthews v. Commissioners of Inland Revenue ((1914) 3 K B 192), where the award was upheld as it awarded costs instead of "expenses". We may, in this connection, quote a portion of the order which was passed in the latter case to indicate the reason why the award was not upheld in the former case. The relevant portion of the order is to the following effect (1914) 3 K B 192 at page 195 :‑ "It is ordered that the said decision as to costs be and the same is hereby made a rule of Court. And it is further ordered that the said costs including the costs of this application be taxed by the taxing Master." The main reason why the award of the referee in the first case awarding "expenses" was not upheld was, as the learned Judge in the case in (1914) 3 K B 192 explained, that there were no means by which the taxing Master of the Court could settle what were expenses. The decision in (1914) 2 K B 842 is not, therefore, of any aid to us in deciding the present case. A reference was made by the learned counsel also to the decision in the case of K. K. N. K. Chokulingam Chetty v. S. P. S. T. R. M. Raman Chetty (A I R 1925 Rang. 155). This is a decision by a Full Bench of the Rangoon High Court, a portion of the headnote of which runs as follows .:‑ "An award not specifying a definite sum as payable by one party to other but merely indicating the manner by which the accounts should be taken by the parties is not final and is not capable of immediate execution. If on the basis of such an award, one party files an applica?tion for execution of the award against the other for a definite sum arrived at by his own calculations, and the Court proceeds to execute the decree, such order of the Court directing immediate execution is without jurisdiction and may be treated as nullity. (22 Cal. 434 (F. B.) ; 6 All. 269 ; 8 Cal. 51). In such a case an order in the nature of preliminary decree would be proper." It may be mentioned in this connection that the question that was decided by the Full Bench came up in connection with an order passed by the Court in an execution proceeding in the following circumstances, The appellant and the respondent were partners in a money‑lending business. Disputes arose between them and they desired to dissolve the partnership. The disputes were referred to the arbitration of four Chettiars.. The arbitrators made their award in writing. The award indicated the manner in whish calculations were to be made and laid down the rules to govern the account taken in respect of a large number of, questions. It did not decide what sum was due by one to the other but purported to lay down the principles upon which the two parties should make calculations and arrive at a final decision. The respondent then filed a suit to set aside the award. The suit was eventually dismissed. On this suit being filed the arbitrators at the request of the appellant submitted their award to the Court with the request that it be filed. The Court filed it and, therefore, in accordance with the provisions of section 15 of the Indian Arbitration Act, 1899 it became enforceable as if it were a decree of the. Court. Thereafter the appellant filed an application for execution of the award and in the application it was stated that in pursuance of the decree adjustments had been made as a result of which there remained due to the decree‑holder a certain sum and prayed for arrest and imprisonment of the judgment‑debtor. On a later date the Court ordered for attachment of some promissory notes and mortgages belonging to the respondent. It is this attachment order of the Court that the respondent challenged, and it is only under those circumstances that the Court came to the conclusion mentioned above. It is, therefore, manifest that this decision does not support the contention of the learned counsel. In the case of Mian Nathu and another v. Abdul Ghani (A I R 1930 Lah. 22), one of the grounds of challenge of the award was that it was indefinite and incapable of execution. The‑learned Judge in over?ruling the objection observed as follows :‑ "The last point argued was that the award is incapable of execution, because the executing Court will have to make an enquiry into various circumstances before determining what each party was entitled to get. The award no doubt provides for different contingencies and a preliminary enquiry with reference to them will be necessary but I find no authority in support of the contentions that an executing Court has no authority to make an enquiry as regards the conditions to which a decree is subject. The award is not perhaps very happily worded, but in my opinion, the intention is sufficiently clear, and there should be no difficulty in getting it executed. Another objection raised in this connection was that the arbitrators have found that a sum of Rs. 505‑7‑6 is due from Abdul Ghani to the appellants out of the price of the house and Abdul Ghani has been allowed to deduct the cost of wiring and laying water pipes out of this sum. The arbitrators have not actually ascertained that sum, but this also does not appear to be an insuperable obstacle in the matter of execution. Abdul Ghani will have to prove in Court what he actually spent on the wiring and water pipes and the sum so proved can then be deducted from the aforesaid amount due from Abdul Ghani. The mere fact that the amount was not actually ascertained or calculated by the arbitrators does not appear to be sufficient justification for holding the award to be uncertain for the principle will apply that, that is sufficiently certain, which cans be made certain." We are in entice agreement with the above views of the learned Judges and therefore unable to accept the contention that the award in the present case is uncertain or vague. The defendant Company knew how many bales were opened for inspection and at no stage of these proceedings has the correctness of the asser?tions of the plaintiff in this regard been challenged. Similarly, the costs of unloading etc. were not in dispute. If the figures, were challenged by the defendant, we do not see, why the Court could not have ascertained them with reference to materials other than the awards. The question as to how many bales were actually opened, is a question relating to what happened before the arbitrators and if there were any dispute with regard to it, the arbitrators could be called as witnesses to ascertain the same [Leiserach v. Schalit and Schzlit v. Leiserach ((1534) 2 K B 353)]. Some other decisions were referred to by the learned counsel which were mostly based on the well known decisions of the Privy Council in the case of Champsey Bhara & Company v. Jivraj Balloo Spinning and Weaving Company, Limited (50 I A 324), in support of the contention that in deciding the point in dispute nothing can be looked into except the award and the papers referred to in the award. We may, however, point out that those decisions have no relevance to the facts of the present cases as all of them relate to the point as to what can be referred to for determining if there is any error on the face of the award. Another point that has been raised in these appeals by Mr: Asrarul Hossain, in the course of his reply, is that the awards are not final and preliminary in form and are, therefore, unenforce?able. We are unable to accept this contention as a perusal of the awards we do not find that by the awards the dispute in question has not been finally determined. The calculations that were to be made consequent on the exercise of option by the plaintiff were ministerial acts not requiring judicial determination by the arbitrators. The other points raised in these appeals, all relate to the decrees passed persuant to the acceptance of the awards and as appeals have not been filed against the decrees, we do not think that they can at all be raised ; but since these points have been urged, we deal with them also on merits. It is pointed out that the bills which the plaintiff submitted were not in accordance with the awards inasmuch as payment for the opened bales has also been claimed. We have already indicated that plaintiff claimed refund of the entire money paid together with costs incurred and wanted the defendant to submit bills for the opened bales, subject to the deductions allowed. The defendant never submitted the bills with the result that the decrees have been passed in accordance with the plaintiff'; bills. It is the defendant Company'‑s recalcitrant attitude and its failure to raise this question in the trial Court which are responsible for this and we are not in a position to correct the decree in appeals under section 39 of the Arbitration Act. The next contention is that the learned Judge was wrong in passing money‑decrees. It is contended that all that tae learned Judge could do after rejecting the objection of the defendant to the awards, was to pass decrees in terms of the awards. We are afraid this contention cannot also be accepted as the awards in regard to each of the option gave the basis for calculation of the claim of the plaintiff' who had advanced a considerable amount in lieu of the supplies made and claimed refund of the same as the supplies were considered not to be in accordance with the terms of the contract. The claim of the plaintiff was for refund of money which was upheld by the arbitrators. The subordinate Judge has rejected the objections of the defendant Company in Title Suits Nos. 14 and 15 on the grounds that they were filed beyond the period of limitation. It has been held that as the notices in these two suits were served on the defendant Company on 28‑2‑58 and the objections were filed on 3‑4‑58, they were barred by time. The return of service in these two cases are exhibits 2 and 2 (a) and they are in identical terms. On a perusal of these returns, we cannot taut hold that they do not disclose that service on the defendant Company was effected as required under Order V, Rule 17 of the Code of Civil Procedure. The learned Subordinate Judge was, therefore, wrong in holding that the petitions of objections were time‑barred in these two cases, in the view of this provisions of Article 158 of the Limitation Act. The result, therefore, is that these appeals are dismissed with costs with one set of hearing fee in the main appeal. CHOWDHURY, C. J.‑I agree.. K.B. A. ?????????? Appeals dismissed.