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Chief Engineer, Southern Army, Poona Vs. Harikiratsingh and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 354 and 355 of 1954
Judge
Reported inAIR1960Kant205; AIR1960Mys205
ActsMysore Arbitration Act - Sections 11(2); Limitation Act - Schedule - Article 178
AppellantChief Engineer, Southern Army, Poona
RespondentHarikiratsingh and ors.
Excerpt:
.....was not a partner of the firm of paten venkataswamappa and brothers. if he was a partner of that firm, notice on the firm was certainly notice on him also as a partner, which fact clearly disentitled him from asking the court to set aside the decree. this is a plausible explanation, but it does not explain, in my opinion, how the court with the papers of the case before it which clearly should that the advocate for the petitioner harikiratsingh in mis. that being the position, i fail to see how and under what provision of law the court could have dismissed the miscellaneous petition 139 of 47-48 for default of appearance of the petitioner therein. the application signed by harkiratsingh in miscellaneous 139 of 47-48 clearly shows that the was merely filing the award into court under..........have no right whatever to get the decree passed therein set aside. if he was a partner of that firm, notice on the firm was certainly notice on him also as a partner, which fact clearly disentitled him from asking the court to set aside the decree. if he was not a partner of that firm, then he would not be a party to the decree or be bound by it and his remedy for his grievance that his properties had been attached under the decree was certainly not an application to set aside the decree to which he was not a party. in either view of the case, the order allowing miscellaneous 120 of 51-51 ought not to have been passed.(5) proceedings in miscellaneous 139 of 47-48 subsequent to the above order disclose, in my opinion. a very unsatisfactory state of affairs. on 19-8-1953, i.e. the date.....
Judgment:
ORDER

(1) One Lt. Col. Harikirtsingh, care of Chief Engineer, Southern Command, Poona, made an application to the Court of the District Judge, Bangalore Miscellaneous No. 139 of 1947-48, under S. 11(2) of the Mysore Arbitration Act. It appears from the allegations made in that petition that in respect of an agreement entered into at Bangalore City between the Chief Engineer, Sourthern Army, on behalf of the Governor-General in Council of the one part and Messrs. Patel B. M. Venkataswamappa and Brothers of the other part under which the latter agreed to supply 40 lakhs of bricks at a certain rate and within a specified period, differences and disputes having arisen those were referred to arbitration pursuant to the provisions of the said agreement and that the Arbitrator, one Col H. W. Bush, made an award on 8-10-1947 holding that Messrs. Patel B. M. Venkataswamappa and Brothers should pay Rs. 12,575/- to the claimant, the Governor-General in Council represented by the Chief Engineer, Southern Army, Poona. Harkiratsingh further alleged that the Arbitrator having been requested by the Chief Engineer, Southern Army, one of the parties to the dispute, to cause the award to be filed into Court, has by his letter dated 6-12-1947, directed him to file the same in Court.

He, therefore, prayed that the award may be filed in Court after issue of notice to the parties viz. (1) Chief Engineer, Southern Army, Poona, and (2) Patel Venkataswamappa and Brothers, Byappanahalli, Hebbal P. O. Bangalore. The order sheet shows that the first respondent, Chief Engineer, received notice, appeared through counsel and filed a statement consenting to the award being filed and made into a decrees of Court. It is further found recorded in the order sheet that the 2nd respondent, Patel B. M. Venkataswamappa and Brothers, had refused notice and that the Court holding that the notice was sufficient placed the 2nd respondent ex parte on 26-7-4-1948. On 16-8-1948 the Court passed an order that the award may be filed into Court, that the 2nd respondent should pay costs and that the Miscellaneous Petition be granted.

The effect of this, I take it, was that a decree so passed was put into execution and some properties were attached in Execution 332 of 1950-51. In September 51, two applications came to be filed, viz. Mis. No. 109 of 51-52 and 120 of 51-52. The former was presented by B. M. Ramaswamy on behalf of himself and as power of attorney holder of his brothers Appa Reddy, B. M. Narayanaswamy alone in which he impleaded the other four persons mentioned above as respondents 2 to 5, the 1st respondent being the Chief Engineer, Southern Army.

The prayer in both the petitions was that the ex parte decree passed in Miscellaneous 139 of 47-48 be set aside. Mis. 109/51-52 was dismissed on 26-11-1953 because both the petitioner and his counsel were absent. The petitioner therein does not appear to have taken any further steps in the matter. In Mis. 120/51-52, however, evidence was taken and by its order dated 19-8-1953 the lower Court allowed the petition. After this petition was so allowed the petition. After this petition was so allowed. Miscellaneous 139 of 47-48 was treated as restored to file to be proceeded with. After several adjournments it was finally dismissed on 8-12-1953 on the ground that the petitioner and his counsel have not appeared for three hearings successively.

(2) Civil Revision Petition 354 of 1954 is directed against the order dated 8-12-1953 dismissing Miscellaneous 139 of 47-48 and Civil Revision Petition 355 of 1954 is directed against the order dated 19-8-1953 allowing the Miscellaneous 120 of 51-52. It will be convenient to deal with the latter case first.

(3) It is admitted that the petitioner and respondents 2 to 5 in Miscellaneous 120 of 51-52 are brothers. Venkataswamappa, whose name appears in firm name 'Messrs. Venkataswamappa and brothers, was another brother of these persons. In his affidavit in support of Miscellaneous 120 of 51-52 the petitioner therein B. M. Narayanaswamy complained that he was not aware of any proceedings until on 11-9-1951 his house was got attached in Miscellaneous 139 of 1947-48. His principal appears to have been that he was not a partner of the firm called Venkataswamappa and Brothers. It is better to state his case in his own words and I therefore, copy below paragraphs 2 and 3 of his affidavit:

'2. The petitioner ventures to submit in this connection that the 1st respondent has made it falsely appear in the said execution case that this petitioner is a partner and Venkataswamappa and Brothers constitutes a partnership firm. There was no firm in existence at any time under the name and style of Venkataswamappa and Brothers of which I was a partner. As a matter of fact, no notices of the filing of the award in Mis. Case No. 139/47-48 on the file of this Court were served either upon me or upon the partnership firm or upon Venkataswamappa as required by law. Further, by the time the said award was filed in Court, Venkataswamappa was dead and hence notices could not have been served upon him. The 1st respondent had however managed to get an ex parte decree and is executing the same.

3. As no notices were served upon me and I had no knowledge of the filing of the award in Court by the 1st respondent, it did not become possible for me to meet the case of the 1st respondent and to prove that I was not a partner of the alleged firm Venkatasamappa and Brothers'.

It will be noticed that there is no clear or firm averment that there never was any firm by name Patel B. M. Venkataswamappa and Bros. The deponent of the affidavit merely ventures to submit that the Chief Engineer, Southern Army, has falsely made it appear in the Execution Case that B. M. Narayanswamy was a partner is an equivocal statement and does not, in my opinion, amount to a statement that no such firm ever existed. That such a firm did in fact exist appears to be implicit in the further averment that no notice was served upon the partner ship firm.

The respondent, the Chief Engineer. Southern Army, Categorically denied the allegations made in the affidavit and asserted that the partnership firm referred to in the application represented by B. M. Ramaswamy and of which B. M. Narayanaswamy was a partner, was a party to the Arbitration proceedings from the beginning and was fully aware of all the legal proceedings and the court having held that notice on the firm was sufficient, B. M. Narayanaswamy, one of the Partners thereof, was precluded form pleading want of knowledge of the Arbitration and the subsequent proceedings.

(4) It will thus be seen that the question whether such a firm did exist as well as the question whether B. M. Narayanaswamy was a partner of the firm did specifically arise for consideration on the pleadings. If the averments of B. M. Narayanaswamy, as already stated, were halting and vague, the conclusion stated by the lower Court in its order under revision is, in my opinion, indefinite and in conclusive. The concluding portion of the order reads as follows:

'In the circumstances, it is seen that the petitioner has sworn clearly that he was not a partner of the firm of Paten Venkataswamappa and Brothers. As it is not shown that he was a partner of that firm, the service of notice on the firm cannot be considered to be service on him. Hence the petition is allowed x x'.

The lower Court has not expressly dealt with the question whether the firm of Patel B. M. Venkataswamappa and Brothers did or did not exist. But, because in allowing the petition the learned Judge proceeded on the footing that service on the firm was not service on B. M. Narayanaswamy, it has to be taken that the learned Judge did not find any reason to accept his first contention, viz. that the firm did not exist, nor any reason to disagree with what had been recorded already by the Court as to the sufficiency of service on the firm of the original notice issued in Miscellaneous 139 of 47-48.

If that is the position the learned Judge's conclusion cannot possibly be sustained. Once the learned Judge found that the firm, which was one of the parties in Miscellaneous 139 of 47-48, had been duly served with notice, B. M. Narayanaswamy the petitioner in Mis. 120 of 51-52 could have no right whatever to get the decree passed therein set aside. If he was a partner of that firm, notice on the firm was certainly notice on him also as a partner, which fact clearly disentitled him from asking the Court to set aside the decree. If he was not a partner of that firm, then he would not be a party to the decree or be bound by it and his remedy for his grievance that his properties had been attached under the decree was certainly not an application to set aside the decree to which he was not a party. In either view of the case, the order allowing Miscellaneous 120 of 51-51 ought not to have been passed.

(5) Proceedings in Miscellaneous 139 of 47-48 subsequent to the above order disclose, in my opinion. A very unsatisfactory state of affairs. On 19-8-1953, i.e. the date on which Mis. 120 of 51-52 was allowed, there is any entry in the order sheet in Miscellaneous 139 of 47-48 to the effect that the case has been ordered to be restored in Mrs. 120/51-52. The entry in the order sheet begins with the words 'Petitioner by Sri H. M.'. This entry continues to be made in seven subsequent entries of adjournment. I also find that the matter was being adjourned from time to time for some amendment.

The letters 'H. M.' Mean Sri H. Munivenkatappa, the learned Advocate for B. M. Narayanaswamy, the petitioner in Mis. 120/51-52. How his name came to be entered as Advocate for the petitioner in Miscellaneous 139 of 47-48 is by no means clear. I am also unable to understand what the amendment was which is found entered several times in the order sheet. Sri Munivenkatappa appearing before me for the same party informs me that he had represented to the Court that he was Advocate for the petitioner in Mis. 120/51-52 in which the order for this restoration had been passed and that the word 'amendment' apparently refers to the fact that he expected the petitioner in Miscellaneous 139 of 47-48 to implead his client Narayanaswamy in Miscellaneous 139 of 47-48 for taking further steps for the hearing on merits of that petition.

This is a plausible explanation, but it does not explain, in my opinion, how the Court with the papers of the case before it which clearly should that the Advocate for the Petitioner Harikiratsingh in Mis. 139 of 47-48 was Sri. S. P. Shamnna, could nevertheless how the name of Sri Munivenkatappa as the Advocate for the petitioner. It is also difficult for me to understand how Sri Munivenkatappa's client who has obtained an expression of opinion from the Court in the order passed in Mis. 120 of 51-52 that it has not been shown he was a partner of the firm could have any interest in the hearing of the proceeding directed against the firm and on what basic he could have any interest in the hearing of the proceeding directed against the firm and on what basis he could expect himself to be impleaded in that. Later from the 18th of November 1953 we find the order sheet mentioning the name of Sri S. P. Shamnna as the petitioner's counsel.

Thereafter there are three adjournments at each of which the petitioner's counsel Sri. S. P. Shamnna is shown as having been absent. Then we come to the final order passed on 8-12-1953 which is in the following terms:

' I have perused the records in Mis 120/51-52. The petitioner and his counsel have not appeared since the 3 hearings. This petition is dismissed with costs of the respondent. Advocate's Fee Rs. 25/- '

I should have stated already that from 18-11-1953 onwards the order sheet shows that the respondent the Chief Engineer, Southern Army) was represented by Sri V. K. Govindarajulu in the first instance and later by Sri B. S. Puttasiddiah. This shows that the claimant under the award in whose favour the decree on it came to be passed was before the Court. The other respondent was the firm of Patel B. M. Venkataswamappa and Brothers on whom the notice had already been served and held sufficient which finding had not been disturbed by the order in Mis. 120 of 51-52. B. M. Narayanaswamy who the Court said, had not been shown to have been a partner, could have no interest whatever in the matter.

That being the position, I fail to see how and under what provision of law the Court could have dismissed the Miscellaneous Petition 139 of 47-48 for default of appearance of the petitioner therein. That petitioner, it must be remembered, was not a party to the proceedings either in arbitration or before the Court. The application signed by Harkiratsingh in Miscellaneous 139 of 47-48 clearly shows that the was merely filing the award into Court under the provisions of Section 11(2) of the Mysore Arbitration Act as directed by or on behalf of the Arbitrator Col. Bush, who had been requested by the Chief Engineer, Southern Army, who was one of the parties to the Arbitration, to cause the award to be filed into Court.

That application prayed that the Court may issue notices to the parties to the Arbitration, whose names and addresses had been given therein, and proceed further in accordance with the provisions of the Arbitration Act. When once the award has been so placed on the files of the Court by the Arbitrator, he could have no further interest in the matter. Indeed, he cannot in any sense be described as a party to the dispute nor can his communication to the Court be treated as an application. In filing the award into Court the Arbitrator. In filing the award and Court the Arbitrator is not making an application asking for any relief for himself.

He is merely discharging his statutory duty. Once he puts the award into Court, it is the mandatory duty of the Court to issue notices to the parties interested in the arbitration and the resulting award and it is thereafter for the parties to take further proceedings. They may either support the award or apply to have it modified, set aside or remitted back to the Arbitrator in accordance with the provisions of the Arbitration Act. It is then for the Court after hearing the parties to decide whether the award needs to be modified or remitted or to set it aside, if it does not do any one of these things, the Court should proceed to pronounce judgment according to the award, whereupon a decree shall follow.

This legal position clearly flows, in my opinion, from the provisions of the statute itself and does not require argument or authority in support of the same. I may, however, refer to the judgment of Chagla, J. as he then was in Jayantilal Jamnadas v. Chhaganlal Nathoobhai, AIR 1945 Bom 417, where his Lordship held that Article 178 of the Limitation Act did not apply to filing of the award by the Arbitrator and stated the position as follows.

'Column 3 of Art. 178 which lays down the period from which limitation begins to run, namely, the date of service of the notice of the making of the award, seems to indicate that it is only when a party to a reference applies that the article would come into operation as the notice could only be served on one or other of the parties to the reference. It could not have been contemplated that this article should apply when the arbitrator files the award. Further there is considerable force in Mr. Desai's argument that the Limitation Act applies to applications made by parties to proceedings. It cannot apply to any act done by one who is not a party to the proceedings and who is not interested in the result of the proceedings and, therefore, it could not have been intended that any act on the article of the Limitation Act. In my opinion, therefore when an arbitrator files his award he is not making any application to the court and, therefore, by the arbitrator. Puranik J., in Narayan Bhawn v. Dewajibhawu, ILR (1945) Nag 323: (AIR 1945 Nag 117), observes that the where arbitrators make an application for filing an award at the request of one of the parties to the arbitration the proper procedure is to allow the parties to the arbitration to take up the litigation in their hands and relieve the arbitrators.

(6) Such being the clear effect of the statute and the correct position in law, Mis. 139 of 47-48 could not have been dismissed for the default of appearance of Karkiratsingh, who on behalf of the arbitrator merely out the award into Court and was not in any sense a party to the proceedings.

(7) The result is that both the Civil Revision Petitions are allowed with costs and the orders of the lower Court under revision are set aside.

(8) Petition allowed.


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