P L D 1959 (W (PLP)

Naimuddin for Plaintiff. Ibadat Yar Khan for Defendant. Date of hearing : 20th November 1958. An award by the sole arbitrator, Muhammad Bashir was filed in this Court on the 28th of March, 1955. It is in favour of Messrs S. Abdul Wahab Muhammad Said, who are the plaintiffs in these proceedings and against Messrs Noor Muhammad Adamjee & Co., who are the defendants. The defendants have filed their objections. Their allegation is that the agreement of reference is not binding on them, because it was the result of fraud and misrepresentation on the part of the plaintiffs. The real agreement was the clause of arbitration which is contained in the contract of sale, and according to which any dispute arising out of the contract between the parties was to be referred to arbitration in accordance with the rules and by‑laws of the Sind Cotton Ginners Association. That original agreement of reference to arbitration has not been observed because the forum of arbitration provided by that clause was different, and Muhammad Bashir could not be the sole arbitrator and could not give an award. In order to appreciate the position of the parties it is necessary to state that there were two agreements between the parties dated the 19th of July 1953 and the 25th of July 1953. They were made by executing the printed forms of the Sind Cotton Ginners ‑ Association. Their clause (15) provided that arbitration was to be in accordance with the rules and by‑laws of Sind Cotton Ginners Association. Subsequently, the parties have signed another agreement on a stamp paper, which is dated the 16th of February, 1954. On this document the signature of the defendants appear and are not denied. According to this document, Shaikh Mian Muhammad Bashir was appointed the sole arbitrator. In other words, clause (15) of the contracts which were made by the parties was substituted by the terms of the new agreement. Disputes admittedly arose between the parties and the arbitration of Mian Muhammad Bashir was sought by the plaintiffs. The arbitrator has submitted a copy of the record of the proceedings which were taken by him. Accord ing to it he issued notice to the defendants twice in September, 1954. The notices could not be served on the defendants and therefore he advertised the notice, which appeared in the Dawn on the 11th of November, 1954. After that' he took ex parte proceedings. Here it may be noted that the relevant sentence of his last order is as follows :‑ "He (plaintiff) produced original contracts dated 19th and 25th July 1953 and various receipts. Ex parte award given." This order is dated the 18th Novemb6r, 1954. The award, which has been filed in Court is dated the 9th of December, 1954. Notices of the submission of the award in Court were issued to the parties by the Court, but the defen dants could not be served for about 3 years. The plaintiffs, therefore, made an application for substituted service on the 5th of October, 1957, which was granted on the 21st of October, 1957. On the 17th of December, 1957, Mr. Ibadatyar Khan, the learned counsel for the defendants, appeared and accepted service, and submitted objections on the 7th January, 1958. The objections, as stated above, are two‑fold, firstly, the agreement between the parties to refer the dispute to the arbitrator, Mian Muhammad Bashir is not valid and binding because it is vitiated by fraud and misrepresentation ; secondly, according to the original clause of arbitration, the proceedings ought to have been commenced and conducted in accordance with the rules and by‑laws of the Sind Cotton Ginners Association. The plaintiffs submitted their replies by their affidavit dated the 8th of April 1958 and took up the position that not only the agreement to refer the disputes to Mian Muhammad Bashir was not tainted with any fraud or misrepresentation but that it was actually acted upon. In support of their contention they pro duced the copy of a notice sent by S. Mahmud Raza, advocate, on behalf of the defendants. In this notice it is admitted that Mian Muhammad Bashir was the sole arbitrator and that in pursuance of his award, although it was not correct according to the defendants they had paid Rs. 8,000 through the arbitrator himself to the plaintiffs. The defendants have replied by their affidavit dated the 15th of October, 1958 in which they alleged that the amount of Rs. 8,000 was not paid by Adamjee, the proprietor of the defendants, but by his father‑in‑law, and that this payment was made before the arbitration. The plaintiffs submitted a counter‑affidavit to dispute the allegations made by the defendants and submitted a copy of another notice sent by Mr. S. Mahmud Raza, advocate, on behalf of the defendants, in which the payment of Rs. 8,000 through the arbitrator to the plaintiffs is admitted. The defendants have submitted a rejoinder affidavit which is dated the 18th of November, 1958, in which they have reiterated their defences. Their stand with regard to the notices is that they had never given instructions to S. Mahmud Raza, advocate. It is not clear as to what the suggestion is, because it is possible that the notices were given not under the personal instructions of Noor Muhammad Adamji, but under the instructions of his representative or relation. It is also possible that the suggestion is that S. Mahmud Raza sent the notices without the instruction of anybody, and that the facts stated by him in the notices were his own invention. Today, at the commencement of the hearing, Mr. Ibadatyar Khan wanted to produce witnesses in support of the allegations made by his clients in their objections and affidavits. He wanted to prove by producing witnesses that there was fraud and mis representation in the execution of the agreement by which the parties agreed to refer the disputes to Mian Muhammad Bashir. The defence taken by his clients in the objections is nothing more than an allegation bare and without any particulars that there was a fraud and misrepresentation on the part of the plaintiffs. This plea of fraud and misrepresentation in terms of Order VI, rule 4, C. P. C. is not adequate. The learned counsel for the plaintiffs had relied on the following observation which appears in the commentary by Mulla on this provision of law :‑ " General allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. " If the defendants are allowed to produce witnesses then, according to Mr. Ibadatyar Khan, the particulars of fraud and the type of fraud which was committed would be brought on record. In other words, what he wants to do is to raise new pleas at this stage. He has explained the reason for the omission to give the particulars of the fraud by stating that, after the service of notice of the award on him, he had to file objections within 30 days, which time was inadequate to enable the defendants to ascertain facts and to raise their pleas according to these facts. As a result of the hurry in which the objections were filed, the particulars of fraud could not be given. I do not think that this is a satisfactory explanation, because the period of 30 days is not as inadequate as counsel suggests. Moreover, the defence that the agreement is not landing in spite of admitted signatures, would have required the statement of a few facts if they were real and were known to the defendants. Mr. Ibadatyar Khan, has also contended that the plaintiffs never applied for better particulars and, therefore they cannot feel aggrieved on account of their absence. This contention is in disregard of the real objection of the plaintiffs, whose contention is that there is no allegation of fraud and misrepresentation because the insertion of these two words in the objections does not amount to which the defendants want to take now on the pretence of proving something which has not been pleaded. I do not think that this is a proper case in which evidence of witnesses should be recorded. Under section 33 of the) Arbitration Act, the general rule should be to decide disputes covered by that section by affidavits and evidence should be allowed only when it is considered to be just and expedient. This is a case which falls under section 33 because the main objection is that the agreement by which reference was made to Mian Muhammad Bashir was not existing or was not valid. The other objections can be taken into consideration only if this plea is upheld. In this connection I may also point out that the defendants could not be served by the arbitrator with out advertisement in the daily Dawn and they could not be served in these proceedings for three years. Their counsel did ultimately come and accept service, but that was after the application for substituted service was granted. The present request for pro ducing evidence appears to me to be another attempt for causing further delay, because as soon as any kind of fraud and mis representation is set up in evidence, the plaintiffs will find themselves helpless to contest the allegations without asking for time and, may be also without asking for the amendment of their pleas. If this is allowed, then looking at the general pattern which has been followed by the defendants, they would further succeed in delaying indefinitely the final decision. I, therefore, disallow the production of oral evidence. The pleadings as they are before me have no substance. The defendants admit the execution of the agreement by which the disputes were to be referred to Mian Muhammad Bashir. No fraud or misrepresentation of any kind has been alleged. Mere use of the words "fraud and misrepresentation" being unhelpful to the defendants, the document must be held to be valid and binding. In support of the conclusion that the sole arbitrator was properly appointed, there are two notices which were given by an advocate on behalf of the defendants. These notices, which are dated the ‑3rd of February, 1955, and 11th of February, 1955, fully support the stand of the plaintiffs that the agreement for reference of disputes to Muhammad 13ashir was genuine, that award was given by him to the full knowledge of the defendants, that they accepted it, and made part payment in pursuance of it. Mr. Ibadatyar Khan has contended that the advocate, who gave the notices, ought to have been produced by the plaintiffs in order to prove that he had given those notices according to the instructions of the defendants, but there is presumption of law that notices given by advocates are in accordance with the instructions given by their clients. The stand taken by the defendants with regard to notices is not convincing at all. According to them, the payment alleged in the notices was made but it was not made by them but by their father‑in‑law who is now dead. They have, therefore, tried to take advantage of the payment by imputing it to their late father‑in‑law and at the same time disputing the genuineness of the notices. These notices are additional evidence in support of the genuineness of the award, but they are only an indirect support to it, because the defendants' case cannot proceed with out firstly establishing that the agreement of reference to Mian Muhammad Bashir was obtained by fraud and misrepresentation. In this regard they have failed even to raise a proper plea. The excuse of hurry is, to say the least, ill‑conceived. I, therefore, disallow the objections, and make the award rule of the Court. The plaintiffs are granted a decree in terms of the award, with costs of these proceedings. A. H. Award made rule of Court.