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TMI Blog1943 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... igned a written submission authorizing the Prime Minister of Indore State to arbitrate between them. The terms of the submission are these : We, the undersigned, the seven partners in the Managing Agency Firm of the Malwa United Mills Limited, Indore, by this writing authorize the Prime Minister of the Holkar State to fix the price of the transaction of purchase or sale of any debentures of the said Mills or any share in the agency or capital stock of any nature that may be effected by any one of us. And the price fixed by him shall be acceptable by each one and all of us and we shall act accordingly. Another version of the English translation of the original document, which was in Hindi, makes it rather clearer that the price was to be fixed conditional on the parties wishing to sell, because the terms of that document are : If any of us were to sell or buy any debentures of this Mill or any share of the Managing Agency or any kind of 'Capital Stock' then the Prime Minister is to fix the price of such dealings and the price fixed by him shall be acceptable to each one and all of us and we shall abide by it. 3. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fixed the value of the shares in this partnership at par, an expression to which it is difficult to assign any meaning in relation to a partnership. 5. The plaintiffs on February 12, that is directly after the award had been published, filed this suit in the Bombay High Court, asking for a declaration that the decision of February 8, 1941, that is to say, the award, is invalid, of no effect, and not binding on the plaintiffs, and for a declaration that the plaintiffs continue to be partners in the managing agency firm, and an injunction to restrain the defendants from excluding them from partnership. An interlocutory injunction was granted restraining the defendants from excluding the plaintiffs. After the filing of the suit, namely, on February 25, the arbitrator sent the award to the District Judge of Indore to file, and gave notice of so doing to the plaintiffs. 6. Under the Indore Arbitration Act it is provided that the Court means the Court of the District Judge, and submission means a written agreement to submit present or future differences to arbitration. Clause 11 provides that the arbitrator shall sign the award, and give notice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That this appeal is dismissed, that the decision of the lower Court prevails; that the parties should bear their own costs. 8. Now, the first question is whether the judgment of the Indore High Court is binding upon the parties to this suit under Section 13 of the Code of Civil Procedure, 1908. That section provides : A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title. 9. Then there are certain exceptions to this enactment. The first is : Where it has not been pronounced by a Court of competent jurisdiction. 10. The second is : Where it has not been given on the merits of the case. 11. The third is not relevant. The fourth is : Where the proceedings in which the judgment was obtained are opposed to natural justice. The other exceptions are not material. Foreign judgment is defined in the Civil Procedure Code as the judgment of a foreign Court , and judgment is defined as meaning the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment so as to bring it into line with the true agreement of the parties. As I understand him, the learned Judge holds that there was an oral agreement between the parties that the arbitrator should decide, not only the price at which a sale or purchase should take effect, but also which partners should sell and which purchase, though the learned Judge agrees that the written submission as it stands does not cover that point. Then, as I understand him, he holds that there was a mutual mistake in not including this further matter in the written submission, and, therefore, the arbitrator was entitled to decide such matter. I must confess that I have the greatest difficulty in appreciating the relevance of the discussion as to the principles on which Courts of Equity act in rectifying a written document. It is not suggested by the learned Judge that the arbitrator himself could rectify the submission. So to hold would at once destroy the efficacy of insisting that the submission must be in writing. It is apparent that no application had ever been made to the Court to rectify the submission. The learned Judge himself was dealing with a notice to show cause why the award should not be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely upon an oral submission, I do not think it possible to say that the Indore Court had no jurisdiction to make such an order. It may not be an order which this Court would have made, but we cannot say that it was outside the competence of the Indore High Court. There is no evidence before us, apart from the statement to which I have referred in the learned Judge's own judgment, that it is illegal under the law of Indore to file an award on an oral submission. At common law a submission can be oral. It seems to me, therefore, that Mr. Justice Chagla was right when he held that the judgment of the Indore High Court does amount to an adjudication that this award is a valid award, and for that reason ought to be filed, and we cannot say that the only decision is that the award be filed. That is the main question in dispute between the parties. 15. But the award is challenged on other grounds. It is said, in the first place, that the High Court had no jurisdiction under the Indore Arbitration Act to deal with the filing of an award; that that is entirely a matter for the District Court. No doubt, under the Act the District Court is the Court in which the award has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal has destroyed the finality of the decision of the lower Court. In that case the lower Court had dismissed the suit on merits, and the Court of Appeal dismissed the appeal on the ground that the proper parties were not before the Court. The Privy Council in appeal held that there was no decision upon merits, because the decision of the Court of Appeal, which was not upon merits, had overridden, and destroyed the finality of, the decision of the lower Court. It was sought to apply that principle here. But the difficulty in this case is that the Court of Appeal never really entertained the appeal at all, because the two Judges constituting the Court differed on the question whether an appeal lay, and, that being so, the decision of the lower Court prevailed, not under the order of the Court of Appeal, but under the notification dealing with the matter in Indore State. No doubt, the decision of the Court of Appeal was that the decision of the lower Court prevails, but that result would have followed, if the Appeal Court had made no order. If the Appeal Court's order had recited that the Judges differed as to whether an appeal lay, and, therefore, thought fit to make no order, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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