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Seth Pamandas Sugharam (Died) by Hardevi and ors. Vs. T.S. Manikyam Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 90 of 1959
Judge
Reported inAIR1963AP28
ActsArbitration Act, 1940 - Sections 32
AppellantSeth Pamandas Sugharam (Died) by Hardevi and ors.
RespondentT.S. Manikyam Pillai and anr.
Advocates:M. Krishan Rao, Adv.
DispositionAppeal allowed
Excerpt:
.....can set up award as bar to an action that may be brought against where such award has not been filed - where an award has not been filed and statutory formalities not complied with it is not open to defendant to set up award - not open to court to dismiss suit on basis of award which has not been filed - held, it is not open to defendant to set up award as bar to action which may be brought against him. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case,..........high court viz., air 1948 mad 436 and : air1952mad24 , relied on by the subordinate judge. we consequently find issue no. 1 in favour of plaintiff.2. we set aside the decree of the court below and allow the appeal and remand the suit fora decision of the other issues. the costs willabide the result. the appellant will be entitledto a refund of the court-fee paid on the memorandum of appeal.
Judgment:

Umamaheswaram, J.

1. In Sugnaram v. Nagappa, : AIR1960AP59 (FB) it has been held at p. 860 (of ILR Andh Pra) ; (at p. 64 of AIR) that if a defendant has not taken steps to have an award filed and gone through the formalities enjoined by the specific provisions of the Arbitration Act, it is not open to him to set up the award as a bar to an action that may be brought against him. Following the above decision, we hold that the learned Subordinate Judge of Kurnool erred in dismissing the suit on the basis of the award which has not been filed into-Court and in respect of which a decree had not been passed. The decision of the Supreme Court in Kashinathasa v. Narasingasa, : [1961]3SCR792 has no application to the facts of the case. The learned Judges did not express any final opinion as to whether the view taken by the Madras High Court in Suryanarayana Reddy v, Ven-kata Reddy, AIR 1948 Madras 436 and Raja-manickam Pillai v. Swaminatha Pillai, : AIR1952Mad24 or the view taken by the Full Bench of the Andhra Pradesh High Court in : AIR1960AP59 (FE) was correct. Shah, J., observed in the following tems:

'It may be sufficient to observe that where an award made in arbitration out of Court is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. By setting up a defence in the present case that there has been a division of the property and the parties have entered into possession of the properties allotted, defendant No. r is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up a plea that the property was divided by consent of parties. Such a plea is in our judgment not precluded by anything contained in the Arbitration Act.'

On the facts of the case, the award has not been acted upon and the Supreme Court decision has consequently no application. We are bound by the decision of the Full Bench of our High Court in : AIR1960AP59 (FB) and we follow that decision in preference to the two decisions of Madras High Court viz., AIR 1948 Mad 436 and : AIR1952Mad24 , relied on by the Subordinate Judge. We consequently find issue No. 1 in favour of plaintiff.

2. We set aside the decree of the Court below and allow the appeal and remand the suit fora decision of the other issues. The costs willabide the result. The appellant will be entitledto a refund of the court-fee paid on the memorandum of appeal.


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