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Judgment
Macpherson, J.—This second appeal arises out of a suit by a retired head ticket collector of the East Indian Railway Company in which he claimed interest on the amount at his credit in the Provident Institution or as it is usually termed the Provident Fund, of which the servants of the Company are compulsorily members, on the allegation that there was abnormal and unreasonable delay on the part of the Committee of the Institution in making payment to him of the said amount. He sued the Committee and also the East Indian Railway Company, but the suit was dismissed against the latter by the trial Court and it is not a party to this appeal.
The case of the plaintiff was that he retired on the 28th February 1921, and that the defendants, though bound to pay him on that date the sum of money standing at his credit including interest up to that date, failed, inexcusably and in spilt of every effort en plaintiff''s part to pay anything" until December 1921, and then paid interest only up till the end of September 1920. He accordingly claimed interest from the 30th September 1920 till the 30th November 1921.
The defence of appellant was first, that the suit was barred under the rules of the Institution; secondly, that plaintiff was only entitled to receive the sum at his credit on 30th September 1920; thirdly, that there was no delay on the part of the Committee; and fourthly that there was no rule under which the plaintiff could get any part of the interest claimed.
The learned Munsif held in favour of the defendant in respect of the period between 30th September 1920 and the date of retirement but decreed the claim in respect of the period from 1st March to 30th November allowing the plaintiff interest at 3 per cent, per annum. There was an appeal to the District Judge on behalf of the Committee and a cross-appeal by the plaintiff. The District Judge dismissed the appeal and allowed the cross-appeal to the extent of increasing the interest to 5 per cent, per annum.
So far as the allegations of plaintiff are concerned they were abundantly sub-instantiated and in second appeal Mr. N.C. Sinha presses only the point that the suit is not maintainable in view of Rule 26 of the Rules of the Provident Institution. That rule runs as follows:
If any dispute shall arise between the Committee or the Manager and the Trusterans of the Institution for the time being, or between the Manager and any individual member, or any executor, administrator, next of kin, or credtor, or assignee of a member, who may become bankrupt or insolvent, or any person claiming to be such executor, administrator, or next of kin, creditor, or assignee, or to be entitled to any moneys deposited in the Institution, then and in every such case, matter in dispute shall be referred in writing to the Advocates-General or Standing Counsel in Calcutta; and in award, order, or decision of the said referee shall be a condition precedent to any right of action of any party in difference in respect of any of the matters by these rules provided for, in any way arising there out or connected therewith; and whatever award, order, or determination shall be made by the said referee, shall be binding and conclusive on all parties, and shall be final to all intents and purposes without any appeal.
On behalf of the respondent Mr. Manohar Lal contends that the plea should not be considered inasmuch as there is not and there has never been on the record a copy of the rules of the Provident Institution. Strange as it may seem, the fact is as stated. The plaintiff''s pleader endeavoured to purchase a copy from the East Indian Bail way Company Press at which it was printed, but was informed that the rules were not issued to the public. As the rules were referred to in the written statement of appellant an application for inspection was, made to the Court which eventually directed the defendant to produce a copy by the 14th December. The order was not complied with and time was allowed till 4th January, but no copy was produced then or until the case went to trial on the 8th January. The vakil for defendant having referred to the rules at the time of argument, a petition objecting to any such use of them and to their being treated as a part of the defence was filed on behalf of the plaintiff on which the order of the Court was that the objection "would be considered at the time of writing out judgment."
The rules had not been proved in any way nor even placed on the record nor apparently shown to the counsel of the plaintiff; but according to the judgment a copy was handed over by the vakil for the defendant to the Munsif who used it in writing his judgment, but made no reference to the plaintiff''s objection to it. There being no copy on the record, the plaintiff''s counsel was unable either to inspect it or to get a copy even om payment of copying fees.
A similar objection was taken before the appellate Court which declined to accede to it on the ground that the rules, were freely referred to in the lower Court, without any objection and that therefore the objection before him was too late. It is obvious from what has been set out; above that here the appellate Court was. under a misapprehension, there having; been very strenuous oral and written objection to reference to the rules which had not been, produced for inspection nor filed in Court and of which the plaintiff'' knew nothing.
In this Court also, not only had counsel for the respondent not, been supplied with a copy of the rules in accordance with the practice that no paper can be referred to at the hearing, unless a copy has been previously supplied to the Advocate for the Opposite party, but no copy was provided on the first day of the hearing either for him or for the Judges. In fact a typed copy of some of the rules was only handed over to Mr. Manohar Lal after the learned advocate for the appellant had spoken for some time on the second day, a similar copy being supplied to the second Judge. Mr. Naresh Chandra Sinha has no answer to this argument except the somewhat cynical one that the rules are before the Court now.
To my mind the contention on behalf of the respondent is entirely reasonable. No doubt the trial Court did not strike out the defence of the appellant under the provisions of Order 11, Rule 21, as it might well have done. But the defendant Committee have persisted in their tyrannous behaviour towards the plaintiff. The plaintiff has been greatly prejudiced in the conduct of his case inasmuch as his legal advisers (in point of fact he himself also) were kept in ignorance of the rules in an oppressive manner contrary to accepted ideas of fair dealing as between the Committee of a Provident Institution and an individual who has been a member of that institution and as betweens litigant and litigant. The defendant Committee relied upon the rules as a defence, but failed to prove them or place them on the record or even to give the plaintiff a correct idea of what they are. Appellant is entitled to no sympathy. On the contrary, as will be obvious from a later part of this judgment, appellant acted with deliberate design. In order to make some sort of defence the Committee had in the written statement misquoted in their own favour the rule upon which reliance was placed as a bar to the suit, and so were concerned to conceal the misdeed by preventing the plaintiff''s counsel from seeing a copy of the rules and bringing the truth to the knowledge of the Court.
In my opinion they cannot be allowed to refer to a document not on the record and deliberately withheld both from inspection and from the proof, with a most unworthy object. Such being the case, the present appeal must fail as they have no answer to the portion of the plaintiff''s claim which is now in controversy. Had it been necessary to negative this plea of respondent and eventually to decree the appeal, it would, in my judgment, have been equitable to make the appellant Committee pay not only their own costs throughout, but also those of plaintiff in this Court and as allowed by the lower appellate Court.
A few words may, however, be said as to the appellant''s plea. It is contended on behalf of the appellant that the plaintiff had no right of action, inasmuch as there was no award, order or decision of the Advocate-General or Standing Counsel in his favour after reference in writing of the matter in dispute to one of them. Reliance is placed on Scott v. Avery [1856] 5 H.L.C. 811 and the decisions which follow it, in particular that of the Judicial Committee in Hallen v. Spaeth [1923] A.C. 684. For the plaintiff Mr. Manohar Lal contends in the first place that the decisions applicable are Dawson v. Fitzgerald 1 Ex. D. 257; Doleman v. Ossett Corporation [1912] 3 K.B. 257; and Ramprasad v. Mohan Lal [1920] 47 Cal. 752, there being first a promise to pay in Rule 16, whereby, on the retirement of a member of the Institution from the service of the Company the Committee shall pay him the sum of money standing at his credit on the 30th March or 30th September preceding his retirement, and then an independent agreement in Rule 26 for reference to arbitration. That view was apparently taken by the learned District Judge who held, probably in reliance on Ramprasad v. Mohan Lal [1920] 47 Cal. 752, that the proper course for defendant was to apply to the trial Court to stay proceedings in view of the arbitration clause, and that, as defendant failed to do that, he cannot at a later stage object to the decree made by the Court. In my opinion the construction put upon Rule 26 by the appellant is correct. The decision in Scott v. Avery [1856] 5 H.L.C. 81 is applicable. Rule 26 establishes a condition precedent to a right of action in a case to which it applies and is not merely an independent collateral agreement to refer to arbitration.
Mr. Manohar Lal next contends that Rule 26 is not applicable to plaintiff''s suit. The contention is well founded.
In the first place the rule has no reference to a dispute between the Committee and a member. No doubt the Committee is sued through the Manager of the Institution; but the rules make a distinction between them and, in particular, there is no evidence as to what business of the Company the Committee, with the consent of the Board of Directors of the East Indian Railway Company, have made over to the Manager. That the defendant Committee was conscious of this weakness in their position is manifest from the fact that in their written statement they misquoted Rule 26,ss setting out:
It is provided that any dispute or difference arising between the Committee or Manager and any individual member shall be referred in writing to the Advocate-General or Standing Counsel in Calcutta
whereas in fact Rule 26 makes no provision for a dispute between the Committee and an individual member.
Furthermore, it would hardly appear that the plaintiff at the date of suit was a member of the Provident Institution within the meaning of Rule 26, since for the purposes of Rule 16 already quoted "service" of the Company, from which he had retired, is synonymous with membership of that institution.
Finally, assuming that plaintiff was a member within the meaning of Rule 26, and that the dispute arose (as is not shown) between such member and the Manager, it is exceedingly doubtful whether they were.
in difference in respect of any matter by these rules provided for, in any way arising thereout connected therewtih.
The rules contemplate payment of the amount at credit at the date of the retirement of the member from service, and, so far as a member not belonging to specified classes to which plaintiff did not belong is concerned, nothing further, or rather they contemplate a complete severance of relations thereafter, the member becoming thereafter an outsider, whose relations with the Institution are in respect of a claim to interest governed by the Interest Act.
Thus the appellant would also have failed on the ground advanced in this appeal. This appeal is without merits and I would dismiss it with costs.
Adami, J.
I agree.