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TMI Blog1920 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... theut any notice to the other of them, be made a rule of the High Court of Judicature at Fort William. 3. On the 24th April 1919 the seller referred the dispute to the arbitration of the Bengal Chair of commerce terms of the just to our, and his letter gave a detailed account of what, according to his version, had taken place between the parties, The statement of the Heifer was forwarded by the Registrar of the Chamber to the buyer for his remarks. The buyer sent a reply in due course; this was transmitted by the Registrar to the seller, who submitted his final reply on the 17th July 1919. On the 14th August 1919 the instituted a suit on the Original Side of this Court for recovery of damages from She seller, on the allegation that the seller was in default. The seller received intimation of this suit on the 24th August 1919, but the writ of summons was not actually served on him till the 26th September 1919. On the 18th October 1919, the Arbitration Tribunal of the Chamber made an award in favour of the seller. On the 17th November 1919 the buyer made an application to this Court to Set aside the sward, on the ground that, by reason of the institution of the suit, the arbitrato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, plain that a Court invited to exercise its judicial discretion to deprive a party of the remedy by suit, must be satisfied that the remedy to proceed by arbitration is really available, 6. Now, in the case before as, there was a valid reference to arbitration on the 24th April 1919. What then was the effect of the institution of the suit on the 14th August I9119 The Position is best expressed in the would of Multon, L.J. in Doleman and Sons v. Ossett Corporation (1912) 3 K.B. 257 : 107 L.T. 581 : 7 J.P. 457 : 10 L.G.R. 915 : 81 L.J.K.B. 1092 The law will not enforce the specific performance of such agreements (that it, agreements to refer to private Tribunals), but if duly appealed to, it has the power in its discretion to refuse to a party the alternative of having the dispute settled by a Court of Law, and thus to leave him in the position of having no other remedy than to proceed by arbitration. If the Court has refused to stay an action, or if the defendant has abstained force it to do so, the Court has since of the dispute, and it is by its decision, and by its decision alone, that the rights of the parties are settled. It follows, therefore, that in the latter case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the 14th August 1919, when the suit was instituted. 8. The question next arises, whether, if the suit were now stayed, the bar to the continuance of the arbitration proceedings would be so effectually removed as to allow their termination in a valid award. In our opinion, the answer must be in the affirmative, in view of rule VIII of the Rules of the Tribunal of Arbitration, adopted by resolution of the Bengal Chamber of Commerce on the 16th January 1912, and confirmed on the 27th February 1912; If any arbitrator or umpire decline or fail to act, or if he die or became incapable of acting, the Registrar may substitute and appoint a new arbitrator or umpire in manner aforesaid (that is, in the manner stated in Rule V) and the Court so re constituted shall proceed with the arbitration, with liberty to act on the record of the proceedings as then existing, and on the evidence, if any, then taken in the arbitration, or to commence the arbitration de novo, 9. In the present case, we may hold, without unduly stretching the language of the rule, that the arbitrators became incapable of acting, when the suit was instituted, and their authority lost all life and power. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, a statutory provision would have been made that the order was final and not liable to be challenged by way of appeal. We must, consequently, examine the circumstances of the case and form our own conclusion, attaching due weight to the view adopted by the court below. Now, it is firmly settled that, where parties have agreed to refer a dispute to arbitration, and one of them, notwithstanding that agreement, commercial an action to have the dispute determined by the court, the prima facie leaning of the Court is to stay the action and leave the plaintiff to the Tribunal to which he has agreed. As Lord Sal borne, L.C, observed in Willesford v. Watmor (1873) 8 Ch. 473 at p. 480 : 42 L.J. Ch. 447 : 28 L.T. 428 : 21 W.R. 350, if parties choose to determine for themselves that they will have a domestic forum instead of resorting to the ordinary Courts, then a prima facie duty is cast upon the Courts to act upon such an agreement. This expression of opinion was adopted with approval in Law v. Garrett (1878) 8 Ch. D. 26 at P. 37 : 38 L.T. 3 : 26 W.R. 426 Lyon v. Johnson (1889) 40 Ch. D. 579 : 58 L.J. Ch. 626 : 60 L.T. 223 : 37 W.R. 427 and clog v. clegg (1890) 44 Ch. D. 200 : 59 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation proceedings could be legally revived and curried on so as to terminate in a valid award. This was a perfectly legitimate question to raise and we have already decided that; the proceedings an be revived and carried on before a re constituted Tribunal. The only other objection which has teen taken by the respondent is, that the application for away should have been made earlier, that is, immediately after the appellant was served with the writ of summons, if not shortly after he had notice of the suit. The appellant, however, has explained that at that time the law on the subject, as expounded in Dinabandhu Jana v. Durga Prasad Jana 51 Ind. Cas. 80 : 46 C. 104 : 29 C.L.J. 399 : 23 C.W.N. 716 was not very clearly appreciated, and that, as the summons was served during the long vacation, it was not easy to make the requisite application for tray and to obtain an order before the award could actually be made. The appellant has further urged that the conduct of the respondent has by no means been such as would entitle him to sympathy or indulgence from the Court. The respondent had full notice of the arbitration proceedings and submitted his case to the Tribunal; it was only after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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