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Vissamseth Chandra Narasimham Vs. Ramdayal Rameswaralal and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1228 of 1959
Judge
Reported inAIR1966AP134
ActsArbitration Act, 1940 - Sections 2, 14(2) and 31(1)
AppellantVissamseth Chandra Narasimham
RespondentRamdayal Rameswaralal and ors.
Appellant AdvocateV. Parathasarathy, Adv.
Respondent AdvocateC. Narasimhacharya, Adv.
DispositionPetition allowed
Excerpt:
.....cannot be estoppel against statute - district munsif court has jurisdiction before which award could be filed under section 14 (2). - - sri parthasarathi for the petitioner has contended that the learned munsif failed to evercise the jurisdiction vested in the munsif. the learned munsif purported to give findings on issues 1 and 2 as..........vijayawada, in o. s. 793 of 1955 which is a proceeding for passing a decree in terms of the award filed under section 14(2) of the arbitration act, 1940. it is seen that under rule 5 of the rules framed under the arbitration act of 1940, applications under section 14 of the act shall be numbered and registered as suits and that explains the order under revision having been passed in o. s. 793 of 1955.2. the learned munsif rejected the application in the view that that court has no jurisdiction to pass a decree in terms of the award. the other points, which fell for determination in the proceeding, were deemed unnecessary in view of the said finding.3. the question that arises in this revision petition is whether the view taken by the learned munsif that the vijayawada court has no.....
Judgment:
ORDER

Narasimham, J.

1. This is a petition seeking a revision of the order of the District Munsif, Vijayawada, in O. S. 793 of 1955 which is a proceeding for passing a decree in terms of the award filed under Section 14(2) of the Arbitration Act, 1940. It is seen that under Rule 5 of the rules framed under the Arbitration Act of 1940, applications under Section 14 of the Act shall be numbered and registered as suits and that explains the order under revision having been passed in O. S. 793 of 1955.

2. The learned Munsif rejected the application in the view that that Court has no jurisdiction to pass a decree in terms of the award. The other points, which fell for determination in the proceeding, were deemed unnecessary in view of the said finding.

3. The question that arises in this revision petition is whether the view taken by the learned Munsif that the Vijayawada Court has no jurisdiction is correct. Sri Parthasarathi for the petitioner has contended that the learned Munsif failed to evercise the jurisdiction vested in the Munsif.

4. The facts relevant to this question about which there is no dispute are these: Chandra Narasimham, the petitioner herein, contracted to sell 75 bales of gunnies, the quantity stipulated being 30,000 gunnies, to Rani-dayal Rameswarlal of Tadepalligudem for a certain price under a written contract dated 21-3-1947 entered into between the parties at Vijayawada. The quantity stipulated was to be delivered in three monthly instalments of 25 bales each in April, May and June. The seller should inform the buyer of the proposed delivery on or before the 25th of each month. It would appear also that if disputes arose, they were referable to the arbitration of the Bengal Chamber of Commerce which should give ifs award. It was also agreed that the award could be filed in the High Court of Calcutta and made a decree of that Court.

It is now not in dispute that the buyer defaulted and the dispute was referred to the Bengal Chamber of Commerce for arbitration as agreed to by the parties and that an award was passed by the said Chamber of Commerce. As was agreed to by the parties the award was filed before the High Court of Calcutta and the said High Court set aside that award on the sole ground that the award was void as the Registrar of the Bengal Chamber of Commerce had no power or authority to constitute the Court which made the award, by an order dated 4-5-1951 in suit No. 142 of 1952 on the file of the original side of the High Court of Calcutta. Subsequently award No. 1335/54 was passed by the Bengal Chamber of Commerce on 14-12-1954, Ex. A. I. The petitioner has filed that award in the present proceeding before the Court of the District Munsif, Vijayawada, to obtain a decree in terms of that award.

5. The respondent raised various pleas against the granting of the application, one of tine pleas being that the Court had no jurisdiction to entertain the application and that the onlyCourt which had jurisdiction by the agreement of parties was the High Court at Calcutta. It was also pleaded that the application was barred by limitation.

6. The learned District Munsif framed issues as under with regard to the points at which the parties were at variance:--

1. Whether the arbitration proceedings covered by the award case No. 1335 of 1954 are not valid?

2. Whether the order of the High Court setting aside award in award case No. 142 of 1953 is a bar to the maintainability of the present proceeding?

3. Whether this Court has no jurisdication to entertain this application for passing the decree?

4. Whether the suit is within time?

5. Whether the plaintiff is entitled to the costs incurred in O. S. 702 of 1948?

6. Whether the plaintiff is entitled to the costs of Rs. 302 said to have been incurred by him before the arbitrator?

7. Whether the plaintiff is entitled to any interest on the amounts claimed?

8. To what relief if any is the plaintiffentitled?

7. Additional issue framed on 28-8-1958: 1. Whether the suit as against the dissolvedfirm without impleading all the partners ismaintainable

8. On the third issue, the learned District Munsif found that the court had no jurisdiction.

9. It would appear that the petitioner had instituted the suit O. S. 702 of 1948, claiming damages against the buyer alleging that he had broken the contract by not accepting delivery offered by the seller. That suit was filed on 17-9-1948. In that suit the buyer obtained stay under section 34 of the Arbitration Act I. A. 386 of 1949 and his proceeding was relied on as giving jurisdiction to the Court at Vijayawada. The said contention was not accepted by the learned District Munsif. The respondent relied on the agreement between the parties that they hud agreed to file the award before the High Court of Calcutta and make it a decree of that Court.

10. Contentions before me proceeded on the above lines and later it was realised that the question of jurisdiction had to be determined with reference to Section 2(c) and Section 31(1) of the Arbitration Act.

11. It has to be noticed that this is a self-contained enactment and it specifically provided for the Court before which an award could be filed. Section 2, which states definitions, defines the 'Court' thus:--

'Section 2; In this Act, unless there is anything repugnant in the subject or context-

(c) 'Court' means Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit . . . '

12. I pause here to notice that the subject-matter of the reference and the subject-matter of the suit shall be the same. The suit has to be laid before the Court at Vijayawada. Thelearned Counsel have no differences on this question.

13. Section 31(1) bears the marginal note 'Jurisdiction'. It states: --

'Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.'

14. The intendment of this provision is explicit and is consistent with the definitions heretofore stated. That is to say, an award has to be filed in the Court in which a suit would lie with regard to the subject matter of reference. This is a statutory requirement and cannot possibly be circumvented by any agreement between the parties. In other words, it there was an agreement that would be against the statute and cannot be given effect to. So, the plea that the parties had an agreement stipulated for the award being filed before the High Court of Calcutta would not avail. The circumstance that in fact the agreement had been acted upon would not also avail, as there cannot be an esloppel against statute.

15. It may be recalled that it is conceded before me that the Court of the District Munsif at Vajayawada is the only Court which has jurisdiction to go into the subject-matter of reference if it were a suit. If so, it has to follow that the District Munsif's Court at Vijayawada is the only Court before which the award could be filed under the Act. This view finds support from the Bench decision of the Madras High Court; M. Venkatasamiappa v. Srinidhi Ltd., (1950) 1 Mad LJ 709. The facts of the case as would appear from the judgment are these: Venkatasamiappa, the appellant before the Court, was a resident of Bangalore City. The respondent was a company with its office at Madras. The respondent undertook and carried out various works in Bangalore for the Public Works Department of the Government of India. The appellant was a sub-contractor who worked for the respondent for the works that he carried out at Bangalore.

There was a dispute as to the respondent's liability to tho appellant in money. The disputes were referred to arbitration of certain persons of Madras. The Arbitrators made their award wherein they directed the appellant to pay the respondent a certain sum. Alter making the award the Arbitrators filed a petition under Section 14(2) of the Indian Arbitration Act, 1940 before the High Court at Madras. A single Judge of the Court passed a decree in terms of the award, but on appeal, it was set aside. It was held that the High Court of Madras had no jurisdiction to pass a decree in terms of the award.

The learned Judges considered Sections 2(c) and 31(1) of the Act and held thus:--

'The combined effect of these two provisions would appear to be this: In order to determine which is the Court having jurisdiction in the matter, you should first of all ascertain what the questions are, which form the subject-matter of the reference to arbitration. You then proceed to ask; supposing these questions had arisen in a suit, which is theCourt which would have jurisdiction to entertain the suit. That Court would be the Court having jurisdiction under the Arbitration Act also. It was admitted before us that in the present case the contract between the appellant and the respondent was entered into in Bangalore. The appellant supplied the labour and the materials in Bangalore; the respondent had also a subsidiary office in Bangalore and the payments made were also at Bangalore. The question between the parties arose out of this contract and what the arbitrators had to determine was how much on a settlement of the accounts was due to one side or the other. Obviously, if these questions had arisen in a suit, the Court which would ordinarily have had jurisdiction in the matter is not this Court; but the Court of Bangalore. That result cannot be avoided if the jurisdiction of the Court were made dependent on the subject-matter of the action prima facie, therefore, it would seem that this Court has no jurisdiction in the matter.' In the result, they set aside the decree made in terms of the award and directed the award to be returned.

15-a. For the reasons stated, I find that the District Munsif's Court at Vijayawada is the Court having jurisdiction before which the award could be filed under Section 14(2) of the Arbitration Act that it is the only Court which is competent to act as such under the Act. In the said view this Court has to interfere in revision and direct that the other points at issue between the parties have to be gone into and decided by the learned District Munsif. The learned Munsif purported to give findings on issues 1 and 2 as well. But those findings have to be vacated in view of the fact that the Vijayawada Court alone had jurisdiction under the Act and not the High Court of Calcutta.

16. The revision petition is therefore,allowed with costs. The learned DistrictMunsif ha.fi to take up ail the other issues anddecide the suit.


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