TMI Blog1947 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory modification thereof for the time being in force. So far as appears from the Record, the business of the partnership was always carried on at Indore. 2. By the end of 1940 there were disputes between the partners which appear to have become the subject of public controversy, and on 17th December 1940, the seven partners referred their differences to the arbitration of the Prime Minister of Holkar State, Indore. There is nothing in the Record to indicate that the arbitrator was asked, or agreed, to act in accordance with any law but that of Indore. On the contrary, the appellants pleaded in the course of the suit which has given rise to this appeal that the arbitration was governed by the Indore Arbitration Act, and until the hearing at their Lordships' Bar all the parties appear to have acquiesced in this view. 3. On 8th February 1941, the arbitrator made an award, after conducting an inquiry which was admittedly of an informal character. It was apparent that if effect were given to this award, a dissolution of the partnership would result. After reciting that all the parties agreed that it was impossible to carry on the present partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The other member of the Court disagreed, and thought that an appeal lay and should be heard. An enactment described as Indore Notification No. 34 provides that when there is a difference of opinion between the two Judges of the High Court constituting the Bench the decision of the lower Court will prevail. At a subsequent sitting the High Court held that this provision must be applied, and the decision appealed from thus prevailed. 6. When the present suit came before the High Court of Bombay the defendants (now the respondents) relied on the judgment and order of the High Court of Indore as a bar to the suit. Preliminary issues were framed and were tried by Chagla J. who decided in favour of the present respondents. On appeal, the High Court of Bombay (Sir John Beaumon, C.J., and Mr. Justice Weston) dismissed the appeal. The present appeal was brought against the decision of the High Court. Their Lordships find themselves substantially in agreement with the judgment of the learned Chief Justice, in which Weston J. concurred, and will state their opinion as briefly as possible, dealing more particularly with those points which were relied upon in the argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made at any stage to show that the judgment of the Indore Court fell within them. Exception (c) may be disregarded also, for, although (as will be seen) it was suggested at their Lordships' Bar that the Courts of Indore should have applied the law of British India to the arbitration, there was certainly no refusal to recognise that law, which indeed neither party to the proceedings in Indore suggested should be applied. Exception (d) is also now irrelevant, as it was conceded by the appellants' counsel that he could not contend that the proceedings in the High Court of Indore were contrary to natural justice. 10. It will be convenient to deal at this stage with the arguments founded on the two remaining exceptions, and to take them in their order. (a) It was contended that the transfer of the proceedings initiated before the District Judge to the High Court of Indore was an erroneous exercise of the High Court's powers, and that the High Court was not a Court of competent jurisdiction. This argument was disposed of satisfactorily by both Chagla J. and the Appellate Court, who rightly pointed out that the question whether a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted upon. The matter referred to was the question whether or not the arbitration was subject to the law of British India. It is certainly true that the High Court of Indore did not adjudicate upon this question in the sense of treating it as being in issue and coming to a decision upon it. That Court could not well have done so, because, as has been said, it was common ground between the parties before it, and the present appellants in terms asserted, that the law to be applied was that of Indore. In these circumstances, it is not surprising that it did not occur to the appellants in the Courts of India to make the point that this matter had not been the subject of adjudication. What is more, no place was found for any such ground of appeal among the forty-six grounds set out in the petition for leave to appeal to His Majesty in Council. It would be not only a departure from the practice of this Board but a manifest injustice to allow the appellants to take advantage of a point which was never submitted to the Courts below, and is inconsistent with the case which the appellants have hitherto made. Their Lordships think it right to say, however, that the submission could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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