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Basappa Veerappa Karni Vs. Chanabasappa Shidappa Angadi - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 588 of 1957
Judge
Reported inAIR1960Kant190; AIR1960Mys190
ActsArbitration Act, 1940 - Sections 14, 14(2), 17, 20, 23, 32, 34, 41, 44, 46 and 47; Limitation Act - Schedule - Article 178; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantBasappa Veerappa Karni
RespondentChanabasappa Shidappa Angadi
Excerpt:
.....provisions of the arbitration act are concerned an application like the one filed by the petitioner was incompetent. in that decision, it is observed after quoting section 14(2): this section clearly implies that when the award or a signed copy thereof is in fact filed into court by a party he should have the authority of the umpire for doing so. but the first sentence clearly shows that in the view of the court an award filed by a party would be no filing at all unless he did so with the authority of the umpire for doing so. the court in fact found that no such authority had been given, and that, therefore, there had been clearly no sufficient compliance with the terms of section 14(2) (7) it is urged by the learned advocate for the petitioner that if section 14(2) should be..........in question as it was not one for the filing of an award but an application for enforcing an award filed along with the application. that was are also observations in support of the present petitioner's contention. they are as follows:'a feeble attempt was made by mr. shamair chand, learned counsel for the respondent, in the end to contend that if i were of the view that this application was not under s. 14, arbitration act, to be dismissed as not being provided by the arbitration act. but the arbitration act is not in my opinion exhaustive in the sense that an application like this could be thrown out as incompetent in the absence of a clear provision in the act. moreover, i cannot forget that the petitioner had asked for the award to be made a rule of the court or in other words,.....
Judgment:
ORDER

(1) The Petitioner and Respondent who were running a business in partnership referred the dispute which arose between them in regard to the dissolution of the firm to five arbitrators for arbitration. The latter made an award according to which Respondent was to pay the Petitioner a sum of Rs. 7200/- in two instalments and also an additional amount of Rs. 300/- in two instalments and also an additional amount of Rs. 300/-. The award signed by the arbitrators was given to the Respondent. The Respondent failed to make payment in accordance with the terms of the award. The Petitioner thereupon filed a petition before the Court of the Civil Judge, Junior Division, Gokak, purporting to be under Section 17 of the Arbitration Act for a judgment and decree in accordance with the award.

In that petition, he made an explicit statement to the effect that he was enforcing the award in his individual capacity and that he was not filing it as the agent of the arbitrators. The Respondent raised various objections in regard to the agreement of reference, the proceedings before the arbitrators and the award itself. He also questioned the maintainability of the application on the ground that it was not filed by a competent person. The question of maintainability and that of limitation were considered as preliminary issues.

The learned Civil Judge held that the application was not maintainable since under Section 14 of the Arbitration Act it was only the arbitrators or umpire that are competent to cause the award to be filed either at the request of a party or any person claiming under such party or any person claiming under such party or by the direction of the Court. He came to that conclusion after examining the whole scheme of the Act. He rejected the contention of the petitioner that it was open to the contention of the petitioner that it was open to the latter to apply for the enforcement of the award independently of the provision of the Act as also the contention that an application could be filed under Section 17 of the Act without reference to the provisions of Section 14. This decision is challenged by the petitioner.

(2) The learned Advocate for the Petitioner has mainly relied upon two decisions, viz., those in Jai Kishen v. Ram Lal Gupta, AIR 1944 Lah 398, and Radha Kishen v. Madho Krishna, : AIR1952All856 . In the former case, as in the case on hand, an application was filed by one of the parties for the enforcement of the award. The opposites party objected that the application was barred under Art. 178 of the Limitation Act. The Court before which the matter came in the first instance upheld this objection.

In revision, the High Court held that Art. 18 did not apply to the application in question as it was not one for the filing of an award but an application for enforcing an award filed along with the application. That was are also observations in support of the present Petitioner's contention. They are as follows:

'A feeble attempt was made by Mr. Shamair Chand, learned Counsel for the respondent, in the end to contend that if I were of the view that this application was not under S. 14, Arbitration Act, to be dismissed as not being provided by the Arbitration Act. But the Arbitration Act is not in my opinion exhaustive in the sense that an application like this could be thrown out as incompetent in the absence of a clear provision in the Act. Moreover, I cannot forget that the petitioner had asked for the award to be made a rule of the Court or in other words, for a judgment and decree to be passed in accordance with the award and this is distinctly provided in S. 17, Arbitration Act.'

The other decision, i.e., AIR 856, adopts the view expressed in the above Lahore decision, the view expressed in the above Lahore decision,. In that case also it was one of the parties that filed the award with an application for its enforcement. An objection was raised that the application was barred by Art. 178 of the Limitation Act. This objection was overruled by the Court. Dealing with this point in appeal, the learned Judges of the Allahabad High Court say:

'That (Art. 178 of the Limitation Act) is an article which applies to application made under Section 14 of the Act and not to those under Section 17. The distinction between these two sections is that under Section 14 the arbitrator is called upon to file the award while under Section 17 the prayer is that the award may be made a rule of the Court and a judgment and decree may be pronounced accordingly. In the present case, these is evidence to show that there was a copy of the award given by the arbitrator to Madho Kishan. Indeed it was filed by Madho Kishan along with his application under S. 17 read with S. 23 of the Act. The case reported in AIR 1944 Lah 398, is on all fours with the present case. Article 178 is not applicable to the present case.'

(3) It will be seen from the extracts given above that in the first of these cases, the question whether under the present Arbitration Act an award could be sought to be enforced independently of the provisions of Section 14 of the Act was not considered and does not appear to have been argued with particular attention or emphasis. The extract itself makes it clear that the matter came up for casual consideration. In the latter case, the ground actually considered was the applicability of Art. 178 of the Limitation Act. There are, however, observations in both the cases indicating that an application like the one in question could be filed independent of Section 14

The first of these decision puts it on the ground that the Arbitration Act is not exhaustive as there is no clear provision in the Act barring such an application. In the second of the above decisions there is no clear provision in the Act barring such an application. In the second of the above decisions there is an observation which seems to award being made a rule of the Court and a judgment and decree following in terms thereof may be made under Section 17 as distinguished from Section 14 which only provides for the arbitrator being called upon to file the award. It is difficult to say what the view would have been if the matter had been fully discussed.

It seems to me that Section 17 cannot be read independently of the preceding Secs. 14 to 16. Section 14(1) deals with the filing of the award by the arbitrators or umpire and giving notice of it to the parties. Sub-section (2) deals with the filing of the award in Court. Sub-section (3) deals with the statement of a special case. Section 15 deals with the modification or correction of an award by the Court. Section 16 deals with the circumstances under which the Court may remit the award or any matter referred to arbitration to the arbitrators or umpire.

Then we get Section 17 which enables the Court to pronounce judgment according to the award where the Court sees no cause to remit the award or any of the matters referred to arbitration or to set aside the award. It appears to be clear that the Court has to act under Section 17 only when the award has come before it in the manner provided elsewhere. The only provision dealing with the filing of the award in Section 14(2). Section 14(2) reads:

'The arbitrators or umpire shall at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.'

The language of this provision leaves no room for doubt that it is only the arbitrators or umpire that are authorised to cause the award or a signed copy of it to be filed in Court. It is therefore not open to one of the parties to file it in Court though it is open to the parties to request the arbitrators or umpire to file it or to apply to the Court to direct the arbitrators or umpire to file it. It is only when the award is filed in this manner that the Court can deal with it as provided in Section 17. In fact, Section 17 does not contemplate any application by any party.

(4) The learned Advocate for the petitioner has drawn my attention to R. 373 of the Rules framed by the High Court of Judicature at Bombay. This is one of the rules framed under Section 44 of the Arbitration Act, 1940. It reads:

'373(a) All applications under the Act shall be made by petition and, when they are not under Secs. 17, 20 and 34 of the Act, shall be presented to the sitting Judge in Chambers.

(b) Applications under Secs. 17, 20 and 34 shall be made by motion in open Court in the arbitration, suit, or matter, as the case may be.'

This rule no doubt appears to contemplate an application under Section 17 of the Act. But the rule has to be read with the substantive provision and it appears to me that the application contemplated is appears to me that the application contemplated is really in the nature of a motion requesting the Court to proceed to pronounce judgment after bringing to the notice of the Court that the prerequisite conditions mentioned in Section 17 are satisfied. Viz., that there is no cause to remit the award or to set it aside and that the time for making an application to set aside an award has expired or that such an application having been made has been rejected.

That this is the object is made clear by Rs. 378, 379 and 380. It must therefore be held that so far as the provisions of the Arbitration Act are concerned an application like the one filed by the petitioner was incompetent.

(5) As regards the contention that the party had an inherent right to file such an application, there seems to be no warrant for the view that the Arbitration Act is not exhaustive in the matter. The description of the Act as an Act to consolidate and amend the law relating to arbitration and the preamble make it clear that it is intended to be exhaustive except to the extent indicated in the Act itself and to the extent excluded explicitly or by necessary implication by any other enactment. This is clear from the scheme of the Act and in particular from Secs. 46 and 47 of the Act.

Section 46 makes the provisions of the Act substantially applicable to statutory arbitrations and Section 47 says that subject to the provisions of Section 46 and in so far as is otherwise provided by any law for the time being in force the provisions of the Act shall apply to all arbitrations. In this context, Section 32 also may be mentioned. It bars suits on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award and enjoins that such an agreement or award and enjoins that such an agreement or an award can be set aside, amended or modified or in any way affected, only in accordance with the provisions of the Act.

Support for the view expressed above, viz., that the Arbitration Act 1940 is a self-contained and exhaustive enactment, is to be found in the decisions of the various High Courts. One of the decisions may be referred to. In the case reported in Narbadabai v. Natverlal Chunilal, : AIR1953Bom386 , it is observed:

'Whatever the law on the subject may have been prior to the Indian Arbitration Act, X of 1940, it is clear that when this Act was passed, it provided a self-contained law with regard to arbitration. The Act was both a consolidating and amending law. The main object of the Act was to expedite and simplify arbitration proceedings and to obtain finality; and in our opinion when we look at the various provisions of the Arbitration Act, it is clear that no suit can be maintained to enforce an award made by arbitrators and an award can be enforced only by the manner and according to the procedure laid down in the Arbitrating Act itself. Section 14 deals with signing and filling of the award....

The Arbitration Act, in our opinion, does not merely furnish a summary procedure to a party who wishes to avail himself of it, but the Arbitration Act contains the whole law with regard to arbitration and also contains the only procedure which can be resorted to with regard to all matters arising out of arbitration and also contains the only procedure which can be resorted to with regard to all matters arising out of arbitration agreements and awards made as a result of arbitration agreements.'

(6) On the question whether a party is entitled to file an award in Court, reference may be made to the decision of the Supreme Court reported in Kumbha Mawji v. Dominion of India, AIR 1953 SC 813. One of the question that arose for consideration in that case was whether the appellant who was a party to the arbitration proceedings had the authority of the umpire to file the award on his behalf into Court in terms of Section 14(2) of the Arbitration Act. In that decision, it is observed after quoting Section 14(2):

'This section clearly implies that when the award or a signed copy thereof is in fact filed into Court by a party he should have the authority of the umpire for doing so. This is, at any rate, the assumption on which the question has been dealt with in the High Court, and it has been dealt with in the High Court, and it has not been contended before us that the filing of the award into Court by a party himself though without the authority of the umpire to do so on his behalf, is sufficient compliance with the terms of the section.'

The second sentence in the above extract no doubt shows that there was no controversy by the parties on this point, and naturally there was no argument addressed in regard to it. But the first sentence clearly shows that in the view of the Court an award filed by a party would be no filing at all unless he did so with the authority of the umpire for doing so. The Court in fact found that no such authority had been given, and that, therefore, there had been clearly no sufficient compliance with the terms of Section 14(2)

(7) It is urged by the learned Advocate for the Petitioner that if Section 14(2) should be construed in such a strict manner, it might lead to hardship, as for example, when the arbitrator dies after making the award and before he causes the award to be filed in Court. As observed by the Court below, it is difficult to find an answer to the question. There may be an answer or there may be none. At any rate, it may be conceded that there appears to be no specific provision in the Act to meet such a contingency. But that would only mean there is a lacuna in the enactment and cannot take away the effect of the clear language of Section 14(2)

(8) Another contention urged on behalf of the Petitioner is that Section 41 of the Act attracts the provisions of the Code of Civil Procedure and that therefore Section 151 of the latter enactment empowers the Court to exercise its inherent jurisdiction. But Section 41 of the Arbitration Act itself says that the application of the provisions of the Code of Civil Procedure is subject to the provisions of the Act. When the mode in which the award is to come before Court is specifically provided for in the Act, it cannot be argued that Section 151 of the Code of Civil Procedure can be resorted to.

(9) In the light of what is stated above, this revision petition fails and is dismissed with costs.

(10) Revision dismissed.


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