TaxTMI 
TaxTMI 
1942 (7) TMI 22
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.... 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 the expiration of the period mentioned in the agreement of lease or before the expiration of the period in the event of breach of any of the terms of this agreement, provided that, you are to give me one month's previous notice before you so intend to take up the land, I will then, during that period, appoint one pancha on my behalf and you should appoint one pancha on your behalf, and there should be one pancha on be half of us both. After you give me the price which the said panchas may fix for my structures I will hand over the land to you together with the structures. If I do not approve of the valuation made by the panchas or if I do not appoint the pancha in time then, I will, within three months of the first notice, remove the structures, clean the land and give the same into your possession. If....
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....tween the parties also when the parties reside within its jurisdiction or the land was within its jurisdiction. The provisions of Order XXXI, Rule 2, of the Civil Procedure Code, 1908, are also material. It is provided by that rule that all trustees should normally be made party defendants. At the end of that rule there is a clear exception, viz. that if any of the trustees is outside British India, he need not be joined as a defendant. Therefore if the respondent was to file a suit in respect of the subject-matter of the dispute 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....
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....experienced in valuation, will have to take evidence. Therefore, the decision would be after a. judicial inquiry resulting in an award of the arbitrators. In support of that contention Chambers v. Goldthorpe: Restell v. Nye [1901] 1 Q.B. 624 and passages from Redman on Arbitration and Russell on Arbitration were relied upon. In Chambers v. Goldthorpe the question before the Court was whether the architect who had given a completion certificate according to the terms of a building contract, stating that a certain amount was due, was liable for megligence. A.L. Smith M.R. and Collins L.J. (Romer L.J. dissenting) held that the architect was not liable because his functions were of an arbitrator or a quasi-arbitrator. That case is nor. directly helpful because the question was not whether4 the decision was as a valuer. The question was whether such a person after acting fairly and reasonably in the matter of certifying payment was liable for negligence. 8. In my opinion in the present case the parties did not intend to make the, persons named by them arbitrators. I am led to that view on reading Clause 5 as a whole. It is to be noticed that the respondent is expressly given a right ....
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....appoint the sur-pancha. I find no justification for that conclusion. As the respondent 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 both of them. There is nothing in the wording of this clause to show that the parties had delegated to the arbitrators the right to nominate such a sur-pancha, and in the absence of such proof the action of Mr. Kamtekar, taken at the instance of the respondent, in my opinion, is unjustified. It is not a case where a party had only failed to appoint his arbitrator. ....