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TMI Blog1964 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... o treat the contract as subsisting, and waited till the date of delivery. As there was no delivery, there was a claim in damages arising out of the contracts, Ex. A. 1 to A. 4. While upon this topic, it is of importance to note a term of the contract, expressed in the following form: The contract entered into subject to the by-laws in force from time to time of Madras Oil and Seeds Exchange Ltd., of which the parties admit that they have knowledge and notice. In the event of any dispute of or differences of opinion in respect of any point under this contract, the same shall be settled by arbitration by and under the rules of the Madras Oil and Seeds Exchange Ltd., and the decision of the Madras Oil and Seeds Exchange Ltd., shall be final and binding on both the parties. This clause shall be considered as an arbitration agreement within the meaning of the Indian Arbitration Act 1940................ We may now proceed to scrutinise the further events. On 18-9-1956, there was a claim statement filed by the second respondent before the Madras Oil and Seeds Exchange (Pte) Ltd., first respondent, claiming damages against the appellants to the tune of ₹ 24,200. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the City Civil Court, Madras under S. 13(b) of the Arbitration Act. The three points of law referred were: 1. Whether the appellate Tribunal have jurisdiction, since the instant by-law was passed after the dates of the contracts? 2. Whether the rule providing for an appellate Tribunal to function was ultra vires, since the award given by the Arbitrators even in the first instance was final and binding under the Indian Arbitration Act 10 of 1940? 3. Whether the appeal could be prosecuted, when the appellants had filed a petition in the City Civil Court Madras to have the initial award filed into court? O. P. 182 of 1958 was proceeding in the City Civil Court, Madras, stating a case for opinion. On 11-4-1959 the court furnished its opinion, on all the three points, against the appellants. (5) The second respondent firm then withdrew the proceeding in the City Civil Court, Madras, to have the initial award filed into court, and the appellants instituted C. R. P. 1263 of 1959 in this court. The learned Judge who disposed of the civil revision petition (Venkatadri J.) held that the opinion of the City Civil Court, upon the three points of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Venkatadri J.) in C. R. P. 1263 of 1959 is res judicata, and thereby prevents the appellants from disputing the final award. But the learned counsel for the second respondent conceded, with fairness, that this argument could not be seriously pressed. We shall now proceed to determine the grounds of law urged in this case by the learned counsel for the appellants. (7) There can be no doubt whatever that appeal is a creature of statute, and is a remedy that does not merely or automatically flow in favour of a party upon any principle of natural justice, or as part of the incidents of common law. The authorities on this point are well known, and it is sufficient to refer to the dicta of the learned Chief Justice in Ramanatha Chetti v. Lakashaman Chetti, (FB). Nor can it be doubted that, being a right dependant upon statute or rule, it must be provided for, either by express language or by necessary implication. On this respect, the following passage from Maxwell on Interpretation of Statutes, 11th Edn. Page 78 is significant. One of these presumptions is that the legislature does not intend to make any substantial alteration the law beyond what is explicitly declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it operative, and nothing short of the impossibility so as to construe it should allow a court to declare a statute unworkable. This dictum necessarily implies that either by-law 202 should be taken out of the rule-book as unworkable and unmeaning, or we should hold that it provides a right of appeal to parties situated like the appellants and the second respondent (10) The next ground presents a little more difficulty. In Garikapati Veeraya v. Subbiah Choudhry, (S) the Supreme Court laid down that the right of appeal was a vested right and accrues to the litigant as on and form the date the lis commences, that cause would be governed by the rights then prevailing, and a subsequent legislation providing for a right of appeal could not clothe either party to the earlier lis with that right. This proposition is not seriously in dispute. That would certainly be the ordinary rule of law, and the Supreme Court observed in the cited case that, such a right (of appeal) is to be governed by the law prevailing at the date of the institution of the suit of proceeding, and not by the law that prevails at the date of its decision or at the date of the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition No. 7 of the First Schedule to the Arbitration Act, that the award shall be final and binding on the parties and persons claiming under them respectively . Naturally, these words have to be construed as subject tot any right of appeal, which might be provided for either by the contract itself, or by any by-law governing the parties; AIR 1927 Cal 647 is clear authority for this view. No doubt, except upon grounds specified in S. 30 of the Act, an award is not liable to be set aside, and is final between the parties. But, what is the award that is final between the parties, when the procedure governing the parties itself makes provision for an initial award on arbitration, and an appeal which may be instituted by either party aggrieved? An award is defined in S. 2(b) of the Act as an arbitration award . As observed by the Supreme Court in (S) the legal pursuit of successive remedies will make them all proceedings 'connected by an intrinsic unity' and 'to be regarded as one legal proceeding . In that sense, it is the award by the appellate Tribunal, if an appeal is preferred which becomes the final award that governs the parties. The passage form Russel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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