# SMT. SANTA SlLA DEVI AND ANOTHER v. DHIRENDRA NATH SEN AND OTHERS

- **Citation:** [1964] 3 S.C.R. 410
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-santa-slla-devi-and-another-v-dhirendra-nath-sen-and-others-2904
- **Pages:** 16

## Headnote

1963
Darya Sin:h
••
St•'• of Pur1jab
GajntMqU/car J.
1963
AJril 26.
410 SUPRENIE COUllT REPORTS [19M] VOL.
reappreciate the said evidence and decide whether
the view taken by the High Court is right or not. In
our opinion, the conviction of the appellants rests on
the appreciation of oral evidence and no case has
been made out for our interference under Art. 136 of
the Constitution.
The result is, the appeal fails and is aismissed.
SMT. SANTA SlLA DEVI AND ANOTHER
v.
DHIRENDRA NATH SEN AND OTHERS
(B. P. SINHA a. J., J. c. SH.AH and
N. RAJAGOPALA AYYANGAR JJ.).
Arbitratiun-Incompletion of award-Silence of
Arbitrator on plea p/,aud for decision-lmplies rejectiun of the
plea-Validity of award-Should
be upheld if reasonably
possible-Arbitrator need not decide every matter of dispute
""less specifically required-Arbitration Act,
1940 (.X of
1940), •• 30.
The appellant as well as the respondents are the heirs
of one Hemendra Nath Sen who died intestate
in
1929
leaving considerable
properties. Dispute
having
arisen
between his heirs an agreement for partition was entered into
determining their shares. Among other provisions there was
one by which the 2nd appellant was to have 5 annas shares in
a glass factory and the rest of the members dividing the
balance of the 11 annas share. Further disputes arose and
the parties
executed
an
arbitration agreement in which
the dispute between the parties was set out. Before the
reference was submitted to the arbitrator the respondents
applied to the High Court under s. 20 of the Arbitration Act
for an order directing the agreement to be filed in the Court
and for making a reference to the arbitrator appointed by the
parties. The present appe!Jants· were impleaded as respondents.
The court made an order referring the
disputes to tJie
3 S.C.R. SUPRENIE COURT REPORTS
411
arbitrator named in the agreement. The arbitrator entered
on the reference and after following the prescribed procedure
he pronounced the award. The award was filed in the court
where upon the appellants applied for setting
it aside on
various grounds the principal of which was that the award
was.incomplete, in that all the disputes which had been
referred for arbitration had not been
disposed of by it. Tbe
SingleJudge before whom the application came for hearing
rejected the application and directed a decree to be passed
in terms of the award. The two appeals filed by the appellants
in the High Court, one from the order refusing to set aside
the award and the other from the decree in terms of the award
were dismissed. The present appeal is by way of special
leave granted by this Court.
The main contention raised was that the award was
incomplete in as much as the award clid not dispose of three
matters referred to the arbitrator. These three matters were
(a) the award had given no direction regarding the rendition
of accounts and profits with reference to a lease of the Glass
Works Ltd. whcih the award had declared invalid (b) the
award had failed to comply with the request, contained in
the arbitration agreement, that the arbitrator should give
directions as regards the future management of the Glass Co.,
(c) there was an allegation in the arbitration agreement as
regards which evidence was led before the arbitrator, in
relation as.to miappropriation of moneys by 6th respondent
but the arbitrator had not specified in the award whether thi1
allegation had been made out or not and no direction had
been given in regard to the matter.
Held that a court should approach an award with a
desire to support it if that is reasonably possible, rather than
to destroy it by calling it illegal.
Salby v. Whitbread and Oo .. [1917] I.K.B. 736 referred to.
Unless the reference to
arbitration
specifically
so
requires the arbitrator is not bound to deal with each c1aim
or matter separately, but can deliver a consolidated award.
Re Brown and the Croydon Canal Co. ( 1839) 9 Ad & Ell.
522 : 112 E.R. 1309 and Jewell v. Chriate (1867) L.R. 2
C.P. 296, ref

## Text

1963
Darya Sin:h
••
St•'• of Pur1jab
GajntMqU/car J.
1963
AJril 26.
410 SUPRENIE COUllT REPORTS [19M] VOL.
reappreciate the said evidence and decide whether
the view taken by the High Court is right or not. In
our opinion, the conviction of the appellants rests on
the appreciation of oral evidence and no case has
been made out for our interference under Art. 136 of
the Constitution.
The result is, the appeal fails and is aismissed.
SMT. SANTA SlLA DEVI AND ANOTHER
v.
DHIRENDRA NATH SEN AND OTHERS
(B. P. SINHA a. J., J. c. SH.AH and
N. RAJAGOPALA AYYANGAR JJ.).
Arbitratiun-Incompletion of award-Silence of
Arbitrator on plea p/,aud for decision-lmplies rejectiun of the
plea-Validity of award-Should
be upheld if reasonably
possible-Arbitrator need not decide every matter of dispute
""less specifically required-Arbitration Act,
1940 (.X of
1940), •• 30.
The appellant as well as the respondents are the heirs
of one Hemendra Nath Sen who died intestate
in
1929
leaving considerable
properties. Dispute
having
arisen
between his heirs an agreement for partition was entered into
determining their shares. Among other provisions there was
one by which the 2nd appellant was to have 5 annas shares in
a glass factory and the rest of the members dividing the
balance of the 11 annas share. Further disputes arose and
the parties
executed
an
arbitration agreement in which
the dispute between the parties was set out. Before the
reference was submitted to the arbitrator the respondents
applied to the High Court under s. 20 of the Arbitration Act
for an order directing the agreement to be filed in the Court
and for making a reference to the arbitrator appointed by the
parties. The present appe!Jants· were impleaded as respondents.
The court made an order referring the
disputes to tJie
3 S.C.R. SUPRENIE COURT REPORTS
411
arbitrator named in the agreement. The arbitrator entered
on the reference and after following the prescribed procedure
he pronounced the award. The award was filed in the court
where upon the appellants applied for setting
it aside on
various grounds the principal of which was that the award
was.incomplete, in that all the disputes which had been
referred for arbitration had not been
disposed of by it. Tbe
SingleJudge before whom the application came for hearing
rejected the application and directed a decree to be passed
in terms of the award. The two appeals filed by the appellants
in the High Court, one from the order refusing to set aside
the award and the other from the decree in terms of the award
were dismissed. The present appeal is by way of special
leave granted by this Court.
The main contention raised was that the award was
incomplete in as much as the award clid not dispose of three
matters referred to the arbitrator. These three matters were
(a) the award had given no direction regarding the rendition
of accounts and profits with reference to a lease of the Glass
Works Ltd. whcih the award had declared invalid (b) the
award had failed to comply with the request, contained in
the arbitration agreement, that the arbitrator should give
directions as regards the future management of the Glass Co.,
(c) there was an allegation in the arbitration agreement as
regards which evidence was led before the arbitrator, in
relation as.to miappropriation of moneys by 6th respondent
but the arbitrator had not specified in the award whether thi1
allegation had been made out or not and no direction had
been given in regard to the matter.
Held that a court should approach an award with a
desire to support it if that is reasonably possible, rather than
to destroy it by calling it illegal.
Salby v. Whitbread and Oo .. [1917] I.K.B. 736 referred to.
Unless the reference to
arbitration
specifically
so
requires the arbitrator is not bound to deal with each c1aim
or matter separately, but can deliver a consolidated award.
Re Brown and the Croydon Canal Co. ( 1839) 9 Ad & Ell.
522 : 112 E.R. 1309 and Jewell v. Chriate (1867) L.R. 2
C.P. 296, referred to.
The silence of the arbitrator upon the subject placed
before him means that the arbitrator has negatived such plea.
Unless the contrary appears the court will presume that the
1961
Santa Sil• D1iiv.
Dhirm,Jta Nmh s,.
Ssnl• Sit. D1lli
••
Dli1111ir• N11• s,,
412
SUPR.El\lB COURT REPORTS [1984] VOL.
award disposes of finally all the matters in dift'erencc,
Where
an a ward is made tk praemi.9•i•, the presumption is that the
a~bitrator intended to dispose finally of all the matters in
difference and his award will be held final if by any intendment
it can be made so.
Ha"i•on v. Ore.wick, (1853) 138 E. R. 1284 referred to.
Since the impugned award
expressly states
that it
is made
00de praemissi•", i.e .. of and concerning all matters
in dispute referred to the arbitrator, there1 is a presumption
that the award is complete. The silence of the award as
regards the claim for accounting must therefore be taken to
be intended as a d•cision rejecting the claim to the relief.
If the lease were set aside because of technical informality.
it would not necessarily follow that the relief of accounting
was implicit in the declaration of the invalidity of the lease.
Nrm constat, the amount due on taking an account has not
been taken into account
adjusted
in making the other
provisions of the award. Hence the contention that the
nature of the claims required a specific adjudicatioft
is
repelled.
The silence of the arbitrator on the question of the
award in the facts and circumstances of the case, on the
question of future management of the Glass Company and
his failure to make any specific provision in regArd to the
management did not therefore leave any lacuna as regards the
rights and must be taken to have left the right of the parties
to be determined by the relevant general law applicable to
the management of the company.
The absence of any provision regarding the claims of the
appellants to relief from the respondents on the ground that
they misappropriated the money of the company is capable
of only one interpretation and that is that the arbitrator
rejected the claims.
GrvrL APPELLATE JURISDICTION : Civil Appeal
No. 197 of 1961.
·
Appeal by special leave from the judg1t1ents
and decrees dated January 29, 30, 1957 of the
Calcutta High Court in Appeals from
Original ·
Orders Nos. 122 and 156of1956 respectively.
'
3 S.C.R.
SUPREME COURT REPORTS
413
Q.S. Pafhak, A.N. Sinha and P.K. Mukherjee,
for the appellants.
--·
s- SW ".ti
A.V. VisUJanatha Sastri, B.R.L. Iyengar and
S. N. JI ukherjee for the respondents.
~.
m;,,o1t. Nlllli g,.
1963. April 26. The Judgment of the Court
w:u delivered by
AYYA:tfGAR J.--This is an appeal by special
leave against the judgment of the High Court of
Calcutta affirming the decision of a Single Judge of
that Court refusing to. set aside the award of an
arbitr~tor dated May 27, 1955.
One Hemendra Nath Sen, father of the second
appellant, died intestate in 1929 leaving his widow
Premtarangini Debi and 8 sons. Respondents 1,2,3,
~. 6 and 7 are the brothers of the 2nd appellant.
The 5th respondent is the widow of a deceased
brother who died in 1933 while the 8th respondent
is the wife of the 2nd respondent. The 1st appellant
is the wife of the 2nd appellant. The parties were
governed by the Dayabhaga School of Hindu law.
Hemendra Nath left considerabl€ properties and on
his death disputes arose between his several heirs but
an agreement dated :January 31, 1933 these were .
settled. By then one of the sons the husband of
the 5th respondent had died leaving a widow (the
5th respondent) and these viz., the widow, the 7 sons
and the widowed daughter-in-law entered into this
agreement by which the properties left by the deceased
were partitioned among them. Broadly stated, the
agreement specified the shares of the 9 parties thereto
as equal i.e., one ninth each, with however the two
widows being allotted their respective shares for their
life as for their maintenance. There was also a
provision that in regard to a glass factory the 2nd
appellant was to have a 5 annas share, the rest of
the membm dividing the balance of the 11 annu
il_fJf'll•' J.
JJ6J
Santa Sila Mezri
..
Dhirentira N11.lh Sen
414 SUPREi.\lE COURT REPORTS [1964] VOL.
(prcmmably because the 1st appellant's money went
in for the initial capital for starting the concern) till
certain specified contingencies occurred. Fresh disputes
however, arose between the parties and by a formal
agreement dated May 11, 1953, they set out those
disputes between themselves and agreed to refer the
same to the sole aribitration of Dr. Radha Binode
Pal-an eminent lawyer and jurist of Calcutta.
As
the terms of reference have some relevance to the
points urged before us in the appeal it would be
cenvenient to set them out. It read :
"We the undersigned hereby agree, First to
refer all disputes arising out of or in connection
with or in relation to the New Indian Glass
Works Ltd., including the management thereof
and the acts of any of the parties in respect of
'i'
Gr in relation to or arising out of the said
Company, and for future management thereof
including the dispute regarding the alleged lease
in favour of R. N. Sen (7th respondent) and of
the alleged prior leases in favour of A. N. Sen
(2nd appellant) and F. N. Sen (6th respondent)
of the said Company's business, the legality and
validity thereof and Secondly all disputes whats9Cver in relation to the joint properties as
per Schedule hereunder written or otherwise
which were or are owned by the parties or
some of them, to the sole-Arbitration of Dr.
Radha Binode Pal, Advocate.
The said·
Arbitrator is to enquire, ascertain and partition .
the said joint properties. We agree that the 1
said Dr. Radha Binode Pal would have sum-~
mary powers and the award which would be ~
made by him would be final and conclusive
and binding upon the parties."
This was followed by a Schedule in which the joint
properties were 1pecified and to this document all the
Jamily members affixed their signatures.
_
3 S.C.R.
SUPREKIE COURT REPORTS
415
Before, however, the reference was submitted to
the arbitrator, the respondents made an application
to the High Court of Calcutta on its original side
on July 12, 1954 under s. 20 of the Indian Arbitration Act, 1940 for an order directing the agreement
to be filed into Court and for making a reference to
the arbitrator appointed by the parties. Notices
were issued to the appellants who were impleaded as
respondents to that application and after a hearing,
an order was made on November 29, 1954 referring
the disputes set out in the agreement to the arbitrator named therein. The arbitrator entered on the
·reference on January 16, 1955 and the parties there·
after filed statements of cases before him setting out
their respective claims and contentions. Evidence
was taken and counsel were heared and thrreafter
\}le arbitrator pronounced his award on May 27,
1955. It is the validity of this award that is under
· challenge in these proceedings. We might, merely
to clear the ground, mention even at this stage that
no 'misconduct' is alleged against the arbitrator but
the main ground on which the award is impugned is
that it is incomplete.
The award is a long document and purports to
decide all the disputes which had been referred to
him. It does not set out the arguments or even the
contentions urged by the parties in regard to any
specific matter or even the reasons for the particular
decisions recorded but corresponds in form to what
might for convenience be termed a decree in a civil
suit. The award was filed into Court on June 29,
1955, and thereupon the appellants made an application for setting it aside on various grounds the
principal of which was, as already indicated, that the
award was incomplete, in that all the disputes which
had been referred for arbitration had not been
disposed of by it. The application came on for
hearing before a learned Single Judge on the original
side and it was dismissed on May 26, 1956, the
/9o3
Santa Silo J),,;
••
Dhir1rtlrc N.ihS 111
S1nt• Sil• ••ff
••
»hi,, Ura N «lh Sen
416
St:JPRENm COURT REPORTS [I964]VOL. ·
learned Judge directing a decree to be passed in
terms of the award. The appellants preferred two
appeals one from the order refusing tp set aside the
award and the other from the decree in terms thereof.
These were heard and disposed of by a common
judgment dated January 29, 1957 which directed
the dismissal of the appeals and thereafter they
applied for and obtained special leave of this court
alld in pursuance thereof the present appeal which is
a consolidated one against the judgment in the two
appeals in the High Court has been filed.
Before the High Court ·a very large number of
Qbjections were taken to the validity or legality of
the award and they have been elaborately considered
and dealt with by the Judge of first instance and by ·
the appellate Bench. Most of these, however, were
not repeated before us and Mr. Pathak-learned
Counsel for the appellants intimated that he would
press only three of the grounds: (I) that all the
disputes which had been referred to the arbitrator
had not been disposed of by the award, and that
for this re!lson the award was incomplete and had to
be set aside.
He submitted that there was this in·
completeness in respect of three matters : (a) the
award had given no direction regarding the rendition of accounts and profits with reference to a lease
ef the Glass Works Ltd., which the award had
declared was invalid and not binding on the Company in which all the shares were owned by the
parties, (b) the parties had specifically required the
arbitrator in their agreement of reference that he
should give directions as regards the future management of the Glass Co., but the award had failed
to comply with this request., (c) there was an
allegation made in the reference, and as regards
whi.Ch evidence was led before the arbitrator, as ·
to misappropriation of moneys by the 6th respondent.
The arbitrator had not specified in his award as to
whether this allegation of misappropriation had been
\
3 S.C.R.
SUPREME COURT REPORTS
417
made out or not, nor had he given any direction in
regard to the matter. These related to the head
of objections touching the incompleteness of the
award. ( 2) The second ground urged was this :
This award had directed that a piece of land situated
at Ketugram in the district of Burdwan be allotted
to the 7th respondent in trust for sale for meeting the
costs and charges of filing the award and other Court
proceedings in reference thereto and to distribute the
balance remaining after meeting the said costs and
charges, equally between himself and 6 other named.
Learned Counsel urged that it was beyond the power
of the arbitrator to have created this trust of the
property in dispute. (3)
The values of the several
items of property were specified in the award and
the division effected was on the basis of this valuation.
Learned Counsel urged that the arbitrator failed
in his duty in not valuing the properties himself but
had adopted the values suggested by one or other of
the parties.
·
We shall now deal with these points.
As how•
ever, we consider that it is only the Ist of the above
points about the incompleteness of the award that
merits any consideration and that the other two have
really no substance and it would be convenient first
to dispose of the second and the third of the above
points.
The trust created by the award to which point
No. 2 relates is in the following terms. Clause 13
of the award which the relevant clause runs :
"That the land· at Ketugram, Katwa in the
District of Burdwan is allotted to Sri Dhirendra
Nath Sen, in trust for selling the same to meet
the costs and charges of filing the award toge·
ther with minutes of the arbitration proceedings,
depositiions and documents to be filed in court
with the award and to distribute the balance if
1969
~·anta Sila D•
y,
Dhirtndra Nath S•
Ayyangarl
418 SUPREME COURT REPORTS [1964) VOL.
1161.
any, left after meeting the said costs and
Saol• ·'ii• D1ui
charges, equally amongst himself and the 6 ·
v.
either sons ... "
DhirMira Nath Sm
none• 1•
and then the award proceeds to make provisions for
the contingency of the sale proceeds being insufficient.
It was submitted by learned· Counsel that the arbitrator had no jurisdiction to create a trust in respect
of property which he was called upon to divide
between the parties.
This contention however
proceeds on a misreading of what the arbitrator had
done, for he has done nothing of the sort alleged.
He has merely made provision for the payment of ,
the eosts to be incurred in filing the award which
obviously, if it were a valid award, would have to be
borne by all the parties whose property was being
divided under the award and he had made provision
just for that purpose and had directed a division of
the surplus sale proceeds among the parties entitled
to the property. W.hen this aspect of the matter
was pointed out to learned Counsel the contention
was not seriously m!l-intained.
·
.
Th~ third point about the arbitrator not having determine~ the values of the property himself
has even less merit than the oue we now disposed of.
The minutes of the proceedings before the arbitrator
were produced before the court and those clearly
showed that the estimated values of the items, as set
out in the award,. were those to which the parties
themselves had agreed. The point, therefore, does
not call for any further consideration.
Coming next to the point regarding the incompleteness of the award, we shall deal first with
the contention based on the absence in the award. of
a direction to account for profits with regard to a
lease of the Glas~ factory which was declared void.
The relevant facts relating to this objection are as
follows.
Under the arbitration agreement the 1st
3 S.C.R.
SUPREME COURT REPORTS
419
head of the disputes referred was this '·disputes
arising out of or in connection with or in relation
to the New Indian Glass Works Ltd. including the
management thereof and the acts of any of the parties
in respect of or in relation to or arising out of the
said company". This was amplified in a statement
filed before the arbitrator on February 12, 1955 by
the 1st appellant.
"Para 12. Dhirendra Nath Sen; Phanindra
Nath Sen, Satyendra Nath Sen, Rabindra Nath
Sen and Jitendra Nath Sen should render true
accounts of their dealings with the assets
and/or properties of the said Company (New
Indian Glass Works) and an award be passed
for my share of the amount found due on
accounting.
13. The alleged. leases in favour of Rabindra
Nath Sen and Phanindra Nath Sen were fraud·
ulently made in order to defraud me.
I claim
for an adjudgment that the said leases are void
and I pray for accounts, against the said alleged
lessees and an award for my share of the profits.
on accounting."
·
The arbitrator decided in paragraph 9 ( c) of the
award that "the alleged lease of the factory to
Rabindra Nath Sen to be declared void and to be of
no binding effect on the Company or on the share·
holders." The award contained, however, no fur·
ther dire~tion ordering or refusing to order Rabindra
Nath Sen to account for the profits with regard to
this lease declared void. The point that is now
urged is that the award is incomplete; in that it has
not followed up this declaration or invalidity of the
lease by making a consequential order.for accounting
or by rejecting the claim of the appellants to the
accounting and for their share of the amounts found
due on the taking of such accounts. The learned
I96S
y,
Dlu'r1ndra ,\'Qfh Sta
1961
8-t• Sil• D1ri
y,
PMl ... •N•IA 8,.
.
~,..,.,,,
·'20
SUPREME COURT REPORTS [1964)VOL.
Single Judge on the original side as well as the
appellate Bench rejected
thi~
objection on the
authority of an English decision in Harrison v.
Oreswick ('),where Parke, B., delivering the judgment of the court, stated :
"The silence of the Arbitrator upon the subject
. placed before him means that the Arbitrator
has negatived such plea."
It was submitted by Mr. Pathak that this decision
had been misunderstood by the learned Judges of the
High Court, and that, in fact, it was an authority
in his favour.
The C'mtention urged before the
Court of common pleas as a ground for setting aside
the award was that the defendant had pleaded a
cross-claim before the arbitrator and that the award
had granted thl' plaintiff a de~ree for a certain sum
without specifically allowing or negativing the
defendant's cross claim. Dealing with this objection
Parke, B. who spoke for the Court, observed :
"The only question is whether the arbitrator
has not by his award impliedly, .if not in
expres~ terms. finally disposed of the matter.
The rule as laid down in the notes to Birks v.
Trippett is, that, where an award professes to
be made de praemis8is, 'Even where there is
no award of grneral releases, the silence of the
award as to some of the matters submitted and
brought before the arbitrator, does not per se
prevent it from being a sufficient exercise of
the authority vested in him by the. submission.
An award is good, notwithstanding the arbitrator has not made a distinct adjudiction on
each or any of the several distmct matters
submitted to him, provided that it does not
appe.1r that he has excluded any ........ Where
an award is made de praemissis, the presumption is, that the arbitrator intended to dispose
(I) (IB59) Ull il. R. 12~4.
•
3 s.c.R.
SUPREME COURT REPORTS
421
finally of all the matters in difference ; and hi1
award will be held final, if by any intendment it can be made so. The rule is this,-
where there is a further claim made by the
plaintiff, or a cross demand set up by the
defendant, and the award, professing to be
made of and concerning the matters referred,
is silent respecting such, further claim or crossdemand, the award amounts to an adjudiction
that the plaintiff has no such further claim,
or that the defendant's cross demand is unten ·
able : but where the matter so set up from its
nature requires to be specifically adjudicated
upon, mere silence will not do."
It is this last sentence on which Mr. Pathak relies in
support of the submission that in the case now before
us there was a need for the arbitrator to have rendered a decision in express terms accepting or rejecting
the claim for the accounting and. that a rejection of
that claim could not be inferred from the mere failure
of the arbitrator to deal with it. Learned Counsel
pointed out that a case of a cross demand or a cross
claim with which Parke, B.
was dealing was quite
different from an independent claim such as that for
accounting made by the appellants in the present
case, for where a sum is decreed to a plaintiff it
necessarily involves the acceptance or rejection of the
cross claim made by the defendant but the position
is different where the claim made stands on indepen·
dent footing.
Before dealing with this point it is necessary to
emphasize certain .basic positions. The first of them
is that a Court should approach an award with a
·desire to aupport it, if that is reasonably posaible,
rather than to dest1·oy it by calling it illegal (Se-e
Salby v. Whitbread and Co., ('). Besides it is obvious
that unless the reference to arbitration specifically so
requires the arbitrator is not bound to deal with each
(I) (1917) l K. B; 736, 7'8.
IHI
s .. 1• Sit. Dnl
••
Dhir1nir• }(ell g,.
"''"'''°' J.
1.9~.
Santa Si/a D1Di
v.
Dhirendra Nalh -~en
AyyangarJ.
422 SUPREME COURT REPORTS [1964] VOL.
claim or matter separately, but can deliver a consolidated award. The legal position is clear that
unless so .specifically required an award need not
formally express the decision of the arbitrator on each
matter of difference. (Vide Re. Brown and The
Croydon Canal Go. (') and Jewell v. Christie (').
Further, as parke, B. himself put it during the course
of arguments in Harrison v. Greswick (8) :
"Unless the contrary appears the court will
presume that the award disposes finally of all
the matters in difference.",
and to repeat a sentence from the extract quoted
earlier :
"Where an award is made de praemissis, the
presumption is, that the arbitrator intended to
dispose finally of all the matters in differenc'! ;
and his award will be held final, if by an}'.
intendment it can be made so."
·
We shall approach the argument addressed to us in
the light of these considerations. Now the award
opens with a paragraph which recites, after setting
out the reference :
"Whereas I have heard and duly considered all
the allegations advanced, evidence adduced
before me regarding the respective cases of the
parties ............ ! do hereby make and publish
this, my award in writing as to all the diaputea
mentiqned above."
It need hardly be added that the arbitration agreement and the statements filed extracts from_ which we
have set out earlier were among the documents
·incorporated with this award and included among
the matters considered by the arbitrator which
{I) (1839) g Ad. & Ell, 522-112 E. R. 1809.
(2) (lll(J71 L.R. :! C.P, 296.
tS) tl85BJ !SB E.R. 1254.
-
3 S.C.R.
SUPREME COURT REPORTS
4~
disputes he intended to resolve by this award. The
award, therefore, on its face intended and purported
to decide all the disputesr aised for this adjudication
and therefore the Court will assume that he has
considered and disposed of every claim made or
defence raised. Since the award now impugned or
expressly states that it is made "de praemissis," i.e.,
of and concernirJg all the matters in dispute referred
to the arbitrator, there is a presumption that the
award is complete. In the circumstances the princi·
pie of construction enunciated by Parke, B. aptly
covers the case and the silence of the award as
regards the claim for acc:mnting must, therefore, be
taken to be intended as a decision rejecting the claim
to that relief.
We shall next turn to the rnbmission that the
nature of the claim here made required a specific
adjudication and the appellants were logically entitled
to the relief of accounting when once the lease of
the factory was declared void and that viewed from
that angle the award must be treated as in~omplete
as not expressly dealing with a legal consequence of
the declaration gtanted. We do not consider this
contention sound, for two reasons : ( 1) If the lease
were held to be void because of technical informality
it need not necessarily involve any accounting since
accounting postulates, the lease being for an improperly low rental. If the lease be set aside for
such a reason, it would not necessarilv follow that
the relief or accounting was implicit in 1 he declara·
tion of the invalidity of the lease, ( 2) Non con.stat,
the amount due on taking on an accounting has not
been taken into account or adjusted in making the
other provisions of th~ award. This objection, there,
fore, lia1 to be repelled.
The next item alleged as regards the incomplet·
eness of the award was the failure on the part of the
arbitrator to provide by his award, for the future
1963
Senta Sita D1oi
y,
Dhir1ndrc hcth Sin
. AJJ••1uJ.
JIJ6j
Santa Sita D1t1i
v.
Dlsir~ndra Neth Sin
AyyangarJ.
....... ' ·-
424
SUPREME COURT REPORTS [1964] VOL.
'
management of the New Indian Glass Works Ltd.
We consider that there is no substance in this objec·
tion either. The award had declared the shares of
the parties in the Glass Company and by cl. 9 (b)
had set aside the agreements or arrangements put
forward as regards the management of the affairs
of the company regarding whose validity and pro·
priety disputes had been raised. When those alleged
agreements were set aside and declared not to be
binding on the parties, the Jaw would step in and
the provisions of the Indian Companies Act as regards
the management of the business and affairs of the
company would come into operation, and the arbit·
rator may well have considered that the provisions
contained in the law of the land sufficient to safeguard
the interests of the shareholders. The silence of the
arbitrator in this regard and his failure to make any
specific provision therefor in regard to the manage·
ment did not therefore leave any lacuna as regards
the rights of the parties to manage but must be taken
to have left the right of the parties to be determined
by the relevant general law applicable to the man,
agement of the company. If the arbitrator consider·
ed that these provisions sufficiently secured the rights
of the parties and did not consider that any special
provision as regards this matter was needed the award
would be silent on that point and that mig~t be ,the
explanation for the state of affairs.
·
. The last of the points urged was that the award
had not referred to or decided the claim of the appdlants to relief from the respondents or some of them.
on the ground that they had misappropriat~' the.
moneys of the company and were, therefore, .. bound.
to bring the money back into hotch potch for divisioD..
among the parties. The absence of any provisfoniD.'
regard to this claim is capable only of one interpretation and that is that arbitrator . rejected the
claim. It is, therefore, an instance where the silence .
of the.award is a clear indication, having regard'to
•\
.
.
3 S.C.R.
SUPREME COURT REPORTS
425
the adjudication being professedly complete and d~
praemi8sis, that the claim in that respect was not
upheld. 'I his would not render the a ward incomplete. We consider therefore that none of the three
points urged in challenge of the validity of the award
on the ground of its incompleteness has any substance.
The appeal fails and is dismissed with costs.
---
NANDESHWAR PRASAD AND ANOTHER
ti,
THE STATE OF U. P. AND OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
and K. C. DAS GUPTA JJ.)
Land Acqui•ition-Notification by Go11ernor-Land require& for comtruction of indu•trial tenemtni.-&cond notification
-Collector direclfll to take po.,ea1ion-Oollector' • notification
•lating po,.eMion would be taken over-Acquiaition for Kanpur
Development Board-Action if mwt be taken under 1. 114 of the
Kanpur Act-Not;fication under •· 6 could be i,.ued without jirll
wking action under •· 5A-Land acquisitiM Act, 1894( 1 of
189,), "· ,,5,5A, 6,9, 17(1), 17(4), Kanpur Urban Ar•a Dewelopment Act, 1945(Act VI of 1945), aa. 71,114.
In these two appeals the same questions of law arise and
the facts in C.A. No. 166 of 1962 arc similar to those in C.A.
167 of 1962 which arc stated below.
The appellant in C.A. No. 167 of 1962 is the owner of
certain lands situated in the city of Kanpur. The land is
occupied by a Mill and godowns and no part of the land is
waste land or arable land. In 1932 the U. P. Government
sanctioned by a notification a Scheme (Scheme No. XX) of the
Improvement Trust, Kanpur. This Trust has been replaced
by the. Development Board, Kanpur, by reason of the Kanpur
Urban Arca Development Act, 1945.
Jiii -
s .. 1. Sil• v,,;
••
Dhir,.dr• N•th s,.
AJJMll"' J.
/96J