Richard Garth, C.J.

1. The point referred to us raises the question whetherArticle 7 of the agreement between the parties can be enforced by the law ofthis country

2. Under article 6 the Company are at liberty, in case ofany breach of the rules by the conductor, to retain the whole of the Rs. 15,which the latter deposited as security for his good behaviour, as liquidateddamages for the breach; and they are also in the same way at liberty to retainany wages due to him; and then article 7 provides that the Manager of theCompany for the time being shall be the sole judge between the Company and theconductor, as to whether the Company, in the event of any breach of the rules,is entitled to retain the whole or any part of the deposit of Rs. 15, and alsoall wages due at the time of his discharge, as liquidated damages; and theManagers certificate in writing is to be conclusive evidence before any Courtof Justice that the amount certified to be retained is correct, and that thereis sufficient cause for its retention.

3. It is contended, that this article is in directcontravention of Section 28 of the Contract Act as ousting the jurisdiction ofthe Courts to adjudicate between the conductor and the Company under suchcircumstances.

4. Now Section 28, as I take it, intends to enact, as nearlyas may be, what the law of England is upon the subject. It says, that"every agreement by which any party: is restricted absolutely fromenforcing his right under it, or in respect of any contract by usual legalproceedings in the ordinary tribunals or which limits the time within which hemay thus enforce his rights is void to that extent."

5. But then the first exception to the section provides,"that this is not to render illegal a contract, by which two or morepersons agree that any dispute which may arise between them in respect of anysubject shall be referred to arbitration, and that only the amount awarded insuch arbitration shall be recoverable in respect of the dispute soreferred."

6. The point which we have to determine here is, whetherarticle 7 of the agreement now in question comes within that exception. I am ofopinion that it does. The Manager of the Company is by that clause constitutedby both parties the sole arbitrator between the Company and the conductor, asto whether, in the event of the conductors misconduct, the Company is entitledto retain the whole or any part of the deposit of Rs. 15, and of any wageswhich may be due to him at the time of his discharge; and the certificate of theManager is to be conclusive evidence in all Courts of Justice of the amountwhich the Company are entitled to retain. That seems to me precisely such acase as comes within exception I of Section 28 of the Contract Act; and thedispute between the parties which has arisen in this instance has been decidedby the Manager under the arbitration clause.

7. The point is very similar to those which so frequentlyoccur in England, where an engineer or architect is constituted the arbitratorbetween a contractor and the person who employs him as to what should beallowed in case of dispute for extras or penalties.

8. It has been argued for the plaintiff, that the Managerin this case is -virtually the Company. But this is not so. The Manager here isno more the Company than the engineer or the architect in the cases to which Ihave just referred is the employer. Both parties have faith in the Manager, andare content to place themselves in his hands, as an arbitrator between them inthe event of dispute.

9. In the English case of the London Tramways Companyagainst Bailey L.R. 3 Q.B.D. 217, to which we were referred, a preciselysimilar clause in the articles of agreement was held to be valid.

10. There the complainant was one of the conductors of theTramways Company under an agreement very similar in its terms to that which weare now considering; and the Court held, that the certificate of the Managerwas conclusive against the claim of the conductor.

11. If I am right in supposing that Section 28 of the ContractAct does virtually enact the law of England, that case is a direct authority infavour of the view which we take.

12. We therefore hold that the certificate of the Manager isconclusive evidence against the plaintiffs claim.

13. We make no order as to costs.

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Aghore Nauth Bannerjeevs. The Calcutta Tramways Co. Ltd.(12.02.1885 - CALHC)