Skip to content


Mehta Dipchand Vakhatchand Vs. Dave Madhusudan - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 82 of 1956
Judge
Reported inAIR1957Bom269; (1957)59BOMLR367; ILR1957Bom571
ActsArbitration Act, 1940 - Sections 14, 14(2) and 41; Saurashtra High Court Rules - Rules 1, I, IV, VI and 109; Code of Civil Procedure (CPC), 1908 - Order 23, Rule 1(3) - Order 38
AppellantMehta Dipchand Vakhatchand
RespondentDave Madhusudan
Appellant AdvocateM.O. Shah, Adv.
Respondent AdvocateA.R. Baxi and ;J.R. Nanavaty, Advs.
Excerpt:
.....14, 41 - civil procedure code (act v of 1908), schedule h, para. 20(2)--saurashtra high court rules--application for filing award made under section 14(2) of arbitration act--whether such application can be treated as a suit.;an application for filing an award made under section 14(2) of the arbitration act, 1940, cannot be treated as a suit.;for the purpose of computing advocate's fees, in such an application, under the rules of the former saurashtra high court, the rule applicable would be rule vi of the appendix to part i (attached to rule 109) of the rules and not rule i(a) of the said appendix.;rajmal v. maruti (1920) 22 bom. l.r. 1377 ganpat kinushet v. vithal bhikan (1941) 43 bom. l.r. 976 : s.c. [1942] a.i.r. bom, 57 arura vir v. punjab zamindara bank, ltd. [1940] a.i.r...........an application by the arbitrator' to the court for filing an award comes within the category of 'civil proceedings' within the meaning of sections 141 of the code and therefore, where an award is made against a minor it is incumbent to make a prayer in such an application for a person being appointed the guardian of the minor. though the actual decision of that case is not material to the present case, the ruling docs lay down tile principle that such applications are mere civil proceedings and not suits.5. govind narayan v. venkstesh laxman air 1927 bom 259 , which has been relied upon by the learned judge below was also a ease in which an application made under paragraph 20 of the second schedule to the civil procedure code for enforcing an award was numbered and registered as a.....
Judgment:
ORDER

1. The dispute in this revision application relates to the computation of advocate's fees, under the Rules of the former Saurashtra High Court, in an application for filing an award under Sections 14 of the Indian Arbitration Act. The applicant filed the said application in the Court of the Civil Judge, Senior Division. Surendrana-Bar, and it was numbered as a suit, being suit No. 193 of 1954. The opponents raised various objections and one of these was that it was not competent to the applicant to file the award in Court and eventually the learned Judge dismissed the application, that is to say, refused to file the award but at the same time he ordered a decree to be drawn up and therein the advocate's fees were computed on an ad valorem basis of the sum in dispute. The applicant then applied to the Court for amending the decree in this regard by computing the advocate's fees under Rule VI of the Appendix to Part I (attached to Rule 109) of the Saurashtra High Court Rules, contending that the application for filing an award was not a suit and therefore did not fall under Rule 1(a) of the said Appendix but was covered by Rule VI as a case not otherwise provided for. . The learned Judge rejected this plea and held that the application was a suit and the case was therefore governed by Rule 1 (a) and in this view he dismissed the application. It is against this order that the applicant has come in revision.

2. Now Sections 14 of the Arbitration Act, 1940, under which the proceedings for filing an award are to be taken does not say expressly or by necessary implication that these proceedings are a suit, nor are there any other provisions in the Act to suggest that these proceedings are a suit. Under paragraph 20(2) of Schedule II to the Civil Procedure Code, no doubt an application for filing an award was to be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants and therefore there was some justification for calling such an application a suit but the Arbitration Act does not contain any corresponding provision. But even in the case of an application under para 20 Sch. II to the Civil Procedure Code, it has been held that it is not a suit. In Rajmal Girdharlal Marwadi v. Maruti Shivram 22 Bom LR 1377: AIR 1921 Bom 389 an application had been made by the plaintiff to file an award under paragraph 20 of the Second Schedule of the Civil Procedure Code and that application was numbered as a suit but it was summarily rejected, without trying the validity of the award on the ground that, treated as a suit, it was time-barred. The plaintiff then filed a regular suit to enforce the award and it was objected, to as having been barred by res judieata but the objection was overruled. Macleod C. J.. held that It cannot be said that the proceedings under paras 20 and 21 of the Second Schedule were proceedings in a suit, though for the purposes of convenience they may be numbered and registered as a suit. The judgment then proceeds to consider the question of res judicata and says that no doubt a decree can be made when the Court pronounces a judgment on the award and there being no appeal against it the question whether a suit could be filed to enforce the award would never arise. The order refusing to file an award however is a different matter and it cannot be considered as a decree and therefore the second suit will not be barred by res judicata. The observations relating to the question of res judicata are no doubt not material to the present case; all the same the learned Judges have definitely held that even though the explication might have been numbered and registered as a suit, it could not be said that the proceedings thereof were proceedings in a suit.

3. Another decision of this Court is 'Ganpat Kinushet v. Vitihal Bhikan AIR 1942 Bom 57. There an application to file an award had been withdrawn without obtaining the Court's permission to file a fresh suit, and the plaintiff having filed a fresh suit to enforce the award the bar of Order 23. Rule 1(3) was pleaded on behalf of the defendant. The reply of the plaintiff was that an application to file an award was not a suit and Rajmal's case (A) was cited in support of that contention. In view of the other grounds on which the learned Judges could rest their judgment, they said that it was not really very material whether an application for an award is regarded as a suit within the meaning of Order 23, Rule 1 or not; all the same, they felt bound by the authorities laying down the principle that an application to file an award, though it is numbered end registered as a suit, is not a suit for all purposes and they accepted the view taken in Rajmars case (A).

4. The Lahore High Court has held in Arura Vir Singh v. Punjab Zaraindara Bank Ltd. AIR 1940 Lah, 164, that the presentation of an application by the arbitrator' to the Court for filing an award comes within the category of 'civil proceedings' within the meaning of Sections 141 of the Code and therefore, where an award is made against a minor it is incumbent to make a prayer in such an application for a person being appointed the guardian of the minor. Though the actual decision of that case is not material to the present case, the ruling docs lay down tile principle that such applications are mere civil proceedings and not suits.

5. Govind Narayan v. Venkstesh Laxman AIR 1927 Bom 259 , which has been relied upon by the learned Judge below was also a ease in which an application made under paragraph 20 of the Second Schedule to the Civil Procedure Code for enforcing an award was numbered and registered as a suit, and the question arose whether the proceedings were a suit for purposes of Order 38 of the Civil Procedure Code, and whether the Court can direct attachment before judgment. It was held that the application became a suit for the abovesaid purposes. Rajmal's case (A) was sought to be distinguished on the ground that there the question related to the bar of res judicata and it was quite different to that of attachment before judgment. Marten C. J., observed that they were not called upon to give any decision on the question of res judicata and he based his decision on the technical ground that the application made under paragraph 20 of Schedule II to the Civil Procedure Code, being numbered and registered as a suit, could be treated as a suit. That decision is therefore no precedent for a case arising under Section. 14 of the Arbitration Act.

6. Now apart from the last mentioned case which takes a rather technical view, and has a limited scope, the other decisions do hold that an application to file an award made under para 20 of the Second Schedule to the Civil Procedure Code is not a suit for all purposes, and that) is despite the provisions of sub-para 2 of para 20. A fortiori an, application for filing an award made under Sections 14(2) of the Arbitration Act cannot be treated as a suit. That is so, also appears from Sections 41 of the Act. Clause (a) of the Section applies the provisions of the Civil Procedure Code, to all proceedings before the Court, meaning proceedings under the Arbitration Act, subject of course to the provisions of the Act it-self and the rules made thereunder, and Clause (b) empowers a Court) to make orders in respect of any of the matters set out in the Second Schedule to the Act, and this definitely suggests that an application made to the Court for filing an award is a proceeding very different from a suit because if it was a suit then there would have been no need to apply the provisions of the Civil Procedure Code or to empower the Court to make orders in respect of the matters in the Second Schedule to the Act.

7. It must be held therefore that the application for filing an award made by the presentapplicant was not a suit and the learned Judgebelow was therefore in error in computing theadvocate's fees on an ad valorem basis underRule I(a) of the Appendix to Part I of the Rulesof the Saurashtra High Court. The case fallsunder Rule VI of the Appendix being a case nototherwise provided for and the amount of advocate's fees to be allowed should have been one-fourth of that payable according to the ratesspecified in Rule I (a). Accordingly, this revisionapplication is allowed, the order of the learnedCivil Judge is set aside and it is ordered that theadvocate's fees shall be computed under Rule VIof Appendix above referred to. The opponentsto pay the applicant's costs of this applicationand to bear their own.

8. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //