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Nagesh Venkatrao Nilkani Vs. Mahabaleshwar R. Hegde and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1976Kant70; 1975(2)KarLJ276
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantNagesh Venkatrao Nilkani
RespondentMahabaleshwar R. Hegde and anr.
Appellant AdvocateVasant H. Ron, Adv.
Respondent AdvocateP.G.C. Chengappa, Adv.
Excerpt:
.....and the kerala education rules, there is no justification for the respondents refusal to act upon the said order. directions given for effecting the change. - i am well aware that the question of jurisdiction even though not taken in the lower court could be argued here, or at any other stage......was obtained by fraud. the court made the award as per his consent. as per the terms of the award decree, he has received the bulk of the amount due to him from respondent-2. respondent-2 also discharged the loan due to the north kanara industrial co-operative bank, which the petitioner did not disclose before the arbitrator. the petitioner was said to have moved the necessary authorities to change the khata and the licence of the mill in the name of respondent-2. it is said that the electric meter has, already been changed in the name of respondent-2. the parties have thus worked out their rights under the award decree. in these circumstances, if i am now to hold that the munsiff's court has no jurisdiction to pass the decree, i would be bringing about a great injustice and.....
Judgment:
ORDER

1. This revision petition under Section 115 of Civil P. C is primarily concerned with the validity of a consent decree made by the Munsiff's Court under the Arbitration Act, 1940, shortly called 'the Act'.

2. From the long chain of facts, I set out only those necessary for my decision.

N. V. Nilekani ('the petitioner') and Thomas M. Chacko ('Respojident-2') entered into a partnership agreement for running a rice and flour mill at Dharma Colony, North Kanara, under the name and style of 'Sri Umamaheshwara Rice and Flour Mill'. As between the partners, several differences arose relating to the management and conduct of the business of the firm. As per the terms of the agreement, the dispute was referred to an Arbitrator. When the Arbitrator was considering the dispute, the partners expressed their desire to get the firm dissolved as per the joint Jahiri produced by them. The Arbitrator on accepting the Jahiri, made a consent Award dissolving the firm with effect from l6th day of March 1974. The Award provided that respondent-2 should become the sole proprietor of the business and owner of the buildings thereon. In return, respondent-2 had to pay Rs. 35,000/- to the petitioner in two instalments and the petitioner undertook to co-operate for getting Khata of the Mill and the business licence transferred in the name of respondent-2.

3. On 20th March 1974, the Arbitrator made an application before the Court of the Munsiff at Sirsi producing the Award and praying for a decree in terms thereof. On 9th March , 1974, the Court registered the said application as an Arbitration Case. The petitioner filed his objection statement, inter alia, contending that the Court has no jurisdiction to pass a decree as per the Award. But later he had a second thought over it. He did not press those objections. On 9th of December 1974, counsel on both sides filed a joint memo before the Court stating that they agreed to the terms and contents of the Award and have no objection for the decree being passed in terms thereof. The Court accepted the memo and passed a decree as per the Award. Thereafter, the terms of the decree are said to have been substantially complied with. The petitioner, however, approached this Court with this Revision petition challenging the validity of the decree on the sole ground that the Munsiff's Court has no pecuniary jurisdiction to pass the decree on the Award

4. From the facts and circumstances of the case, it seems to me, that this is not a fit case where I should exercise my revisional jurisdiction. I am well aware that the question of jurisdiction even though not taken in the lower court could be argued here, or at any other stage. But, at the same time the revisional powers of the High Court are not exercised unless it appears to the High Court that injustice has been done to a litigant. In this context, I may usefully quote the observation of Beasly, Chief justice of the Madras High Court in Kuppuswami Pillai v. Alwar Chettiar : AIR1935Mad89 . The learned Chief Justice said 'that the High Court will certainly not use its revisional powers to bring about injustice to the parties.'

I may recall the conduct of the petitioner and the steps that he has hitherto voluntarily taken. He gave his consent before the Arbitrator for the dissolution of the partnership. The Arbitrator made the Award as per the terms agreed upon by him. He also agreed before the Munsiff's Court for passing a decree as per the Award. It is not his case that his Consent was obtained by fraud. The court made the Award as per his consent. As per the terms of the Award decree, he has received the bulk of the amount due to him from respondent-2. Respondent-2 also discharged the loan due to the North Kanara Industrial Co-operative Bank, which the petitioner did not disclose before the Arbitrator. The petitioner was said to have moved the necessary authorities to change the Khata and the licence of the Mill in the name of respondent-2. It is said that the electric meter has, already been changed in the name of respondent-2. The parties have thus worked out their rights under the Award decree. In these circumstances, if I am now to hold that the Munsiff's Court has no jurisdiction to pass the decree, I would be bringing about a great injustice and setting at naught the decree the terms of which have been substantially complied with. I, therefore, decline to interfere in revision.

5. Before parting with the case, I must make it clear that I am not accepting the contention that the Munsiff's Court has no pecuniary jurisdiction to pass the Award decree. On that contention much could be said on both sides.

6. In the circumstances, I dismiss the revision petition and make no order as to costs.

7. Petition dismissed.


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