TMI Blog1942 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay at intervals of two or four years, stays a month or so here and returns to England. In respect of the management of the trust properties, since 1882 there is a trust office at Kurla. For the Parel property a separate mehta is employed. He collects the rent which is used for charities in Bombay according to the trust-deed. 3. Two different plots of land at Kurla were let out by the trustees to two different parties and some buildings were erected thereon. On November 22, 1933, the then trustees gave a new lease of the two plots for the remaining period of nine years commencing from June 1, 1932, to the respondent. Clause 5 of that lease is material and runs as under: You are to be entitled to take back the aforesaid land, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and called upon the petitioners to appoint their arbitrator. The trustees declined to do so. The respondent then purported to treat Mr. Kamtekar as the sole arbitrator authorised to act under Clause 5 of the lease, and after giving notice of the various meetings which he was holding, Mr. Kamtekar made his report, which is called the award. 5. On behalf of the petitioners three objections are raised against the award. The first is that this Court has no jurisdiction to accept this award on the file. Under Section 2(c) of the Indian Arbitration Act, 1940, 'Court' means a civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit. It was argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute and the suit was to be against the petitioners, it was open to the respondent not to make the second petitioner a party at all. Therefore the Bombay High Court would have jurisdiction to accept this award on its file. That contention of the petitioners therefore fails. 6. The second contention is that by Clause 5 there is no reference to arbitration and therefore no award. The document is only a report on valuation. In this connection the petitioners relied on In re Cams-Wilson and Greene (1886) 18 Q.B.D. 7. In that case on a sale of land one of the conditions was that the purchaser should buy over the timber on the land at a valuation. It. was provided for the purpose of such valuation that each party should appoint a valuer and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party and the third by the two arbitrators so appointed. It was further provided that if either party neglected to appoint the arbitrator, the other party would be competent, after giving a month's notice in writing, to appoint all the three arbitrators and the decision of such arbitrators would be final against both parties. The Court considered the previous decisions and also In re Carius-Wilson and Greene's case. The learned Judges came to the conclusion that the report made by the three persons appointed at the instance of the plaintiff only was not on a matter in difference between the parties on an arbitration. 7. It was contended before me on the respondent's behalf, that in the present case it was open to the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not care for the valuation and could take away the structures. It was strongly urged that these considerations are not relevant because in spite of these rights the respondent would be bound by the report, and if he chose to let the structures remain, he could not claim that the petitioners should pay a higher amount. There is considerable force in the reasoning in In re Cams-Wilson and Greene and Macnaghten v. Rameshwar Singh for holding that there was no dispute between the parties to go to arbitration. It is true that under Clause 5 it would be open to either of the parties to appoint a non-technical man like a barrister, and if such an appointment were made that party will have to take evidence on which he would make his final report. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent seeks to support a decision of a tribunal which is not a Court established according to the law of the land, the burden is on the respondent to show that the decision is binding on the petitioners. It is for the respondent to show that Mr. Kamtekar had authority to act as he did, and in spite of the absence of a sur-pancha acting on behalf of both, the decision of Mr. Kamtekar is binding on the petitioners. In my opinion the respondent has particularly to show that the parties had agreed to delegate to the arbitrators the right to appoint this sur-pancha on behalf of both. I: see nothing unusual in the parties agreeing that each party shall nominate one pancha on his behalf, but the sur-pancha shall be one who enjoyed the confidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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