IN THE HIGH COURT OF SINDH AT KARACHI
(Original Jurisdiction)
Suit No. 1190 of 2009.
Present:
Mr. Justice Irfan Saadat Khan.
Plaintiff No.5 Wasiq Hussain Khan in person.
Nemo for the defendants.
Date of hearing: 16.09.2010.
JUDGMENT
IRFAN SAADAT KHAN, J:– The Award dated 20.08.2009 has been filed by the learned Sole Arbitrator under Section 14(2) read with Section 17 of the Arbitration Act, 1940 and with Rule 282 of the Sindh Chief Court Rules for pronouncing the judgment followed by the drawing of decree in terms of the Award.
2. Briefly stated, the facts are that, Mr. Justice (Retd.) Muhammad Mujibullah Siddiqui was appointed as a Sole Arbitrator by this Court in the above suit vide order dated 27.05.2009 in the following terms:
"It appears that a controversy has erupted between the parties over the meaning to be accorded to the words "lawful dues" used in the consent order dated 04.03.2009. It is contended by some of the persons present today that certain payments demanded by the Association are not lawful and therefore not payable in terms of the order dated 04.03.2009. Since the question whether or not a particular demand for payment constitutes a demand for lawful or unlawful dues is not before this Court in these proceedings, and, therefore, an issue that cannot be determined in these proceedings. The Hon'ble Retired Justice Muhammad Mujibullah Siddiqui is appointed as Sole Arbitrator to determine whether or not the payment being demanded by the Association constitutes lawful dues. The issue for determination by the Hon'ble Sole Arbitrator is framed as follows:-
Whether contributory payments being demanded from its members by the Association in respect of legal fees and other expenses incurred by the Association in defending suits and other legal proceedings instituted by its members against the Association constitute lawful dues to be paid by the members.
For the reason that will become evident from the latter part of this order the Hon'ble Sole Arbitrator is requested to determine this issue preferably within three weeks. Learned Counsel shall provide such assistance to the Hon'ble Sole Arbitrator as may be requested for the purpose of determining the issue framed above. The fee of the Hon'ble Sole Arbitrator shall be determined by him and shall be paid by all the plaintiffs and defendants to this suit.
Upon determination of the issue being referred to the Hon'ble Sole Arbitrator all the Association and its members shall abide by the same and moneys shall be paid by, or refunded to, the members as the case may be."
3. The Hon’ble Sole Arbitrator thereafter issued notices to the parties in response to which some of the plaintiffs and the defendants appeared before him. The learned Arbitrator after thrashing out the matter in detail in para 37 of the Award dated 20.08.2009, has observed as under:-
"Consequent to the above findings it is held that all members of Karachi Customs Agents Association who have deposited the amount with official assignee in pursuance of the order of Hon'ble High Court dated 04.03.2009 in respect of legal fees and other expenses and amount embezzled by Accountant Mr. Nehal Hussain and under the head advertisement are entitled to the refund of such amount wherever it may be lying so far the payments made under the head AFU Camp Office and units/lockers are concerned they were legal dues and are not to be refunded."
4. On filing of the Award, notices issued to the parties in response whereof, being aggrieved with the Award, objections filed by defendant No.3 namely Mr. Arshad Jamal, the Ex-General Secretary of the Karachi Custom Agents Association, raising a number of objections and requesting that the said Award may be set aside for the reasons mentioned in the said objections.
5. Mr. Wasiq Hussain Khan, plaintiff No.5, appeared in person whereas nobody appeared on behalf of objector though service has been affected upon them through substituted modes.
6. I have gone through the objections raised by defendant No.3 Muhammad Arshad Jamal which reveals that according to him no notices were issued to the parties and that defendants had no knowledge about the proceedings undertaken by the learned Sole Arbitrator. It has further been alleged that the said learned Arbitrator has disposed of the matter in a speedy manner without giving a detailed hearing to him. It has further been alleged that the learned Sole Arbitrator has relied upon the contentions raised by the plaintiffs and did not consider the arguments and submissions made by the defendants in this regard. It has further been alleged that the Award has been pronounced in favour of the plaintiffs on misleading facts given to the learned Sole Arbitrator. In the end, defendant No.3 prayed that the Award may be set aside and the case may be decided on merits.
7. I have heard plaintiff No.5 who appeared in person and have also considered the objections raised by defendant No.3. It is observed that this Court appointed Hon’ble Mr. Justice (Retd.) Mujibullah Siddiqui as Sole Arbitrator in this case on 27.05.2009 and no objection whatsoever was raised at that time by the said defendant. It has further been observed that vide above referred order the parties were bound down that they will abide the decision of the Hon'ble Sole Arbitrator. It is seen from the Award that the learned Arbitrator proceeded in a judicious manner by issuing notices to the plaintiffs and the defendants, some of whom appeared from time to time before him. It was agreed by the parties that no evidence is required for deciding the issue which could be decided by the learned Arbitrator on perusal of the documents and after hearing the arguments of the parties. Even some of the documents filed by the plaintiffs were supplied to the defendants for their rebuttal. It is also seen that a number of adjournments were granted to the defendants from time to time on their request in the interest of justice. It is specifically pointed out by the learned Arbitrator that a number of opportunities were given to defendant No.3 Arshad Jamal for filing his defence. It is also noted that the learned Sole Arbitrator even at the time of giving Award has accommodated Mr. Arshad Jamal by considering his written arguments only in the interest of justice though the same were filed quite late. The learned Arbitrator after going through the entire record available with him has given the Award which has been filed to be made Rule of the Court. In the objections filed by defendant No.3, in my opinion, he has totally failed to point out any error on the face of the record or any other issue warranting interference by this Court. Defendant No.3 himself has admitted that the said Award has been filed after considering his written arguments. I also do not find any force in the submissions made by defendant No.3 that the learned Sole Arbitrator has given the decision in a speedy manner rather it would appear from the record that not only ample time has been given by the learned Arbitrator to the defendants to make their submissions but, as mentioned above, has accommodated defendant No.3 and considered his written arguments while giving Award even though he informed defendant No.3 that he had already concluded the proceedings but only in the interest of justice had considered the written arguments sent by Arshad Jamal which amply proves that neither the decision has been given in a speedy manner nor his written arguments have been ignored by the learned Sole Arbitrator. As such the said Award has been given by fulfilling all the norms of law and by giving ample and sufficient opportunities of hearing to the parties and after considering their verbal and written arguments. It is not the case of the defendant No.3 that the learned said Arbitrator has not considered his arguments and thus an error has occurred in this regard rather defendant No.3 had candidly admitted in para-10 of his objections that some paragraphs of his written arguments have been quoted verbatim in the said Award.
8. The principle of estoppel and acquiescence would apply with full force to which the parties have consented to arbitrate and participate in the proceedings before the said Arbitrator. In such circumstances the parties are estopped from making an attempt to challenge the jurisdiction of the said Arbitrator. It is a trite proposition that law leans in favour of upholding the Award and not vitiating the same, when a party having submitted to the jurisdiction of the arbitration, as in the present case. It is established beyond any iota of doubt that defendant No.3 has fully participated in the proceedings and has specifically mentioned in the objections that his averments have duly been incorporated by the learned Arbitrator in his Award and having allowed to deal with the matter, in my opinion, is estopped and acquiesced with the matter of objecting to the same on the ground that he was either not heard or not given sufficient opportunity to present his case. Reference in this regard may be made to the following decisions:
i) PLD 2004 Lahore 404
ii) PLJ 2001 Lahore 1181
iii) 2001 CLC 289.
9. Thus the objections raised by defendant No.3 are found to be frivolous and contrary to the record. No error is apparent as alleged by defendant No.3 to calling for interference from this Court. It is a trite law that a valid Award has a binding force and such Awards are to be made Rule of the Court. As I do not find any error in the said Award hence, the same is made the Rule of the Court and the present objections raised in this regard by defendant No.3 are hereby overruled.
JUDGE
Dated: _____ September, 2010.