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Judgment
Walsh, J.—The respondent in this petition filed a suit (O.S. No. 301 of 1929) to recover Rs. 900 from the'' defendant. While the suit was
being tried, the parties entered into an agreement Ex. A without reference to the Court to submit the matter to arbitration and ""the other disputes
between us."" Ex. A ends as follows:
We having agreed to this willingly, the first executant has withdrawn the suit O.S. No. 301 of 1929 on the file of the District Munsif''s Court,
Eajam.
One of the five arbitrators appointed could not act and therefore it was necessary to make a second reference, Ex. B. This begins:
We were having disputes and fighting with each other in Courts and to settle all disputes between us we executed in favour of you four persons and
another, Rowthu Swami Naidu, a reference to arbitration on 21st April 1930.
It ends:
It is agreed that the award passed by you shall be binding on us as per terms of the previous agreement dated 21st April 1930.
This is dated 16th May 1930. Thereupon the arbitrators met and each party put in a list of debts which he claimed from the other. It may be
stated that each of them claimed to have paid debts to which the other had to contribute and the suit, 301 of 1929, was laid for contribution. The
arbitrators made an award and the respondent to this petition filed O.S. No. 650 of 1930 to file the award under para. 20 of Schedule 2, Civil P.
C, as the defendant had. refused to abide by the award. The defence was that the words ""the other disputes'' in Ex. A, were unauthorised and that
the only matter referred to arbitration was O.S. No. 301. As regards Ex. B the defendant pleaded that it was not a genuine document at all nor
was Ex. C (1), the list of claims put in by him as against the plaintiff. The trial Court found that both Exs. A and B were genuine throughout as also
Ex. C-1. The District Munsif says:
I have therefore no hesitation in holding that the defendant submitted to the arbitration of the five arbitrators. But the defendant deposes as D. W. 1
that ho told them to stop all further proceedings since he was not willing to abide by their award.
The trial Court also apparently found that this latter plea was also false. But the learned District Munsif observed:
If anything emerges from the evidence which goes to vitiate the award it should be given effect to,
and came to the conclusion that the award Ex. D was true in fact but not valid in law. He says:
I am of opinion that the language employed in Ex. A is on its face ambiguous or defective and u/s 93, Evidence Act, no extrinsic evidence is
admissible to show what these ""other disputes"" are. Even assuming that extrinsic evidence is admissible there is absolutely no evidence in the
present case as to what were the ""other disputes."" It cannot be argued that because the parties filed their statements of claim before the arbitrators
Exs. C and C-1 they must have known all along what the ""other disputes"" between them were. The parties might have known them but the
question is, did the arbitrators know them and did they get jurisdiction to enquire into the ""other disputes"" mentioned in Ex. A.
He found this point in the negative relying on Gopalam v. Suryanarayana 1926 Mad 752. He further held that it was not open to the Court to file
only that part of the award which determined matters referred to the arbitrators and that the award could not be filed at all. In appeal the learned
District Judge held that Gopalam v. Suryanarayana 1926 Mad 752 did not apply to the facts of the present case that it was not necessary for the
arbitrators to know at the time the reference was drawn up what the disputes referred to them were and that it was sufficient that they should know
before they passed the award that the award should cover only the disputes referred to them. As regards the second question he admitted that
there was ample authority in Madras to support the view taken by the District Munsif but said that there was a decision of the Privy Council to the
contrary effect. Against this appellate judgment this Civil Revision Petition has been filed.
The finding of fact by both the lower Courts that Exs. A, B, C and C-1 are genuine documents cannot be and is not objected to. The main
argument is that because Exs. C and C-1 are not identical and each party has not signed the other pary''s list of claims there was no agreement
between the parties as to what should be submitted to arbitration. A number of English cases were quoted to show that a reference to arbitration
must be in writing signed by the parties, but all these rulings are inapplicable in dealing with Schedule 2, Civil P. C. It was in fact admitted by the
learned advocate for the petitioner that i where a submission to arbitration is without reference to the Court it need not be in writing but can be
oral. It would appear that even the application to the Court under para. 1, Schedule 2 need not be signed by the parties: Umed Singh v. Sobhag
Mal 1915 P.C. 79. I also agree with the learned District Judge that there is no such ambiguity in the submission of Ex. B as would prevent
evidence being called with regard to the points which were actually submitted to the arbitrators. Section 29, Contract Act, says:
Agreements, the meaning of which is not certain or capable of being made certain, are void.
There is no difficulty in this case as to what were the disputes to be referred to the arbitrators being made certain '' subsequent to the agreement.
In this connexion, see Shadi Lal v. Thakar Das (1890) 12 All 175 and Kanhia Lal v. Muhammad Hussain Khan (1883) 5 All 11. The maxim,
certum est quod certum reddi potest is one which clearly applies to a case like the present. This is borne out by the illustrations u/s 29, Contract
Act. III. (e) says:
A agrees to sell to B one thousand maunds of rice at a price to be fixed by C. As the price is capable of being made certain, there is no uncertainty
here to make the agreement void.
This is followed by III.(f):
A agrees to sell to B ''my white horse for rupees five hundred or rupees one theusand.'' There is nothing to show which of the two prices was to be
given. The agreement is void.
The conduct of the parties both before and after the award shows beyond doubt that the respective claims mentioned in Exs. C and C-1 were
the disputes submitted to the arbitrators. The parties called evidence, and the arbitrators gave findings in favour of some of the claims'' The
arbitratoros distinctlv say:
The other matters mentioned in the statements appear to us from the oral evidence to be false.
And it is very noticeable that when this suit was filed, the defence set up by the defendant was not that he did not agree to any of the matters
mentioned in Exs. C and C-1 being submitted to the arbitrators because each party had not signed the other list. On the other hand his defence
was that Ex. A was a forgery, Ex. B was also a forgery, as well as even the list Ex. C-1 which he himself was said to have submitted and the trial
Court expressly states in its judgment that it is not dismissing the suit on the defence set up but because it finds something in the evidence which
goes to vitiate the award. Since it is admitted that the submission to the arbitrators as to the matters to be arbitrated upon may be oral, it is a pure
question of ''""fact as to whether the particular matters in Exs. C and C-1 were these that were submitted for arbitration and even if I differed from
its view I would have no power to interfere with a finding of fact by the lower appellate Court. But as stated above, to my mind, the conduct of the
parties leaves no room for doubt on the point. This being so, it is unnecessary to determine the second question as to whether if the arbitrator''s
award was invalid in part, that part which was valid could be filed. But I may observe that the decision of the Privy Council in Amir Begum v.
Badru-ud-din Hussain 1914 PC 105 was not alluded to in Gopalam v. Suryanarayan 1926 Mad 752 though that decision has been followed in a
number of cases by other High Courts. In the result, this revision petition fails and is dismissed with costs.