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TMI Blog1929 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... orm and submits to arbitration "any disputes arising out of or in any way relating to this contract or to its construction or fulfilment between the parties hereto and whether arising before or after the date of expiration of this contract." The clause also imports the rules and by-laws of the Association which provide machinery for carrying out the reference in the event of one of the parties failing to appoint an arbitrator within forty-eight hours after having been called upon to do so. 3. As the respective deliveries of jute sold under the contracts were made questions arose as to the quality of the goods supplied by the appellants and the respondents had to submit to large deductions in respect of alleged inferiority of quality. The cause of action arose at different times, but it is not material to consider the exact dates as the respondents showed due diligence in making their claims, for these were formulated in July 1915, when a demand for compensation for breach of contract was made on the appellants, who refused to consider the same. 4. On July 15, 1915, the respondents appointed an arbitrator to act on their behalf and called upon the appellants to appoint a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amounts awarded by seizure of the appellants' goods, and this was done. 6. The appellants thereafter, on January 8, 1917, brought a suit for a declaration that Mr. Singleton's awards were void and inoperative on the ground that his appointment as sole arbitrator was illegal. 7. On April 7, 1920, the Judge of the first instance upheld the award, but on appeal to the High Court at Fort William this judgment was reversed and an appeal taken by the present respondents to the Privy Council was dismissed. 8. These proceedings occupied a considerable time. It was not until December 13, 1920, that the decision of the High Court was pronounced and the decision of the Judicial Committee of the Privy Council was only issued on July 20, 1922. Taking either of these dates, much more than three years had elapsed from the date when the cause of action had arisen. On December 13, 1922, the respondents again demanded from the appellants the amount which they claimed under the eleven contracts, and on December 28, appointed Mr. W.G. Dredge as arbitrator. The appellants declined to appoint an arbitrator on the grounds that the alleged claims were barred by limitation. On March 16, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nglish Statute of Limitations, and the question has been considered and decided in one case in England. This is the case of In re Astley and Tyldealey Coat and Salt Go. and Tyldesley Coal Co (1899) 68 L.J.Q.B. 252. In that case it was held by the Divisional Court consisting of Bruce and Ridley JJ. that "a submission to arbitration does not per se exclude the right of either party to raise the defence of the Statute of Limitations, but if it be intended to exclude such a defence an express term to that effect must be imported into the agreement of submission." In his judgment Bruce J. said (p. 255):- There is nothing in the submission to take away the right of the Tyldesley Coal Co. to raise any defence in relation to their liability to damages It seems to me unreasonable that parties by a submission should be precluded from raising the defence of the Statute of Limitations, unless a provision to that effect be drawn up and embodied in the submission. 13. Previous to that decision there had been general statements in other cases which lay down more clearly the principle upon which the decision must be taken to have proceeded. In Aubert V. Maze (1801) 2 Bom. & P. 371 Cham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any definite opinion upon the point, although for the purposes of the decision they were content to assume it. Such being the state of the authorities (the paucity of which may be explained by the fact that where contracts contain an arbitration clause the parties usually contemplate that their dispute will be disposed of), their Lordships are of opinion that the law was correctly laid down in Tyldesley's case, Although the Indian Limitation Act does not in terms apply to arbitrations, they think that in mercantile references of 19a9 the kind in question it is an. implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every defence which would have been open in a Court of Law can be equally proponed for the arbitrator's decision unless the parties have agreed (which is not suggest-ed here) to exclude that defence. Were it otherwise a claim for breach of a contract containing a reference clause could be brought at any time, it might be twenty or thirty years after the cause of action had arisen although the legislature has prescribed a limit of three years for the enforcement of such a claim in any applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the section there is this explanation For the purpose of this section, a plaintiff op an appellant resisting an appeal shall be deemed to be prosecuting a proceeding. 18. It may be assumed that it had been ascertained before these provisions were formulated that there was a serious risk of injustice arising if the period of limitation, which is in many cases shorter than in England, should be too strictly applied. In Indian litigation it is consistent with the experience of their Lordships that the time necessary for the decision in a suit may be of much longer duration than one is accustomed to in the Courts of Great Britain. Hence the necessity for some provision to protect a bona fide plaintiff from the consequences of some mistake which had been made by his advisers in prosecuting his claim. 19. Holding, as they did, that the proceedings before the second arbitrators were merely a continuance of the first arbitration, it became unnecessary for the learned Judges of the High Court to deal with the question. It had, however, been dealt with by Greaves J. in the application which the appellants made to revoke the submision to the arbitrators and to restrain the present resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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