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Balwant Singh and anr. Vs. Partap Singh Jawala Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 699 of 1966
Judge
Reported inAIR1968P& H265
ActsArbitration Act, 1940 - Sections 14(2) and 39(1)
AppellantBalwant Singh and anr.
RespondentPartap Singh Jawala Singh and ors.
Appellant Advocate N.C. Jain, Adv.
Respondent Advocate P.S. Mann, Adv.
DispositionRevision allowed
Cases ReferredMahomed Yusuf v. Mohammed Hussain.
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....award and had notice of it it appears that none of the five parties thereafter moved to have the award filed in court and made a rule of the court 3. on september 19, 1964, respondent 4, one of the two arbitrators made an application in a court at delhi that the other arbitrator kartar singh, be directed to file the award in court and then the award be made a rule if the court on the very day the court at delhi passed an order directing kartar singh arbitrator to file the award in court which was done by him subsequently the delhi court on december 8, 1964 baying come to the conclusion that it had no jurisdiction in the matter returned the application of respondent 4 for presentation in proper court or that respondent 4 presented the very same application on february 22, 1965 in the.....
Judgment:

Mehar Singh, C.J.

1. The applicants. Balwant Singh and Budh Wanti, in this revision application and the first three respondents to it, namely Partap Singh Darshan Singh and Sardul Singh entered into an agreement for arbitration of disputes between them by respondent 4, Mehtra Raja Ram Dutt, and one Kartar Singh who were thus appointed by the parties arbitrators to arbitrate on the disputes between them

2. The arbitrators made their award on August 20, 1960 It has been found as a fact by the trial Court in its order of November 3 1965, that after notice the parties appeared before the arbitrators on August 20 1960, the award was made in their presence and they read the award also Obviously in the circumstances the parties knew of the award and had notice of it it appears that none of the five parties thereafter moved to have the award filed in Court and made a rule of the Court

3. On September 19, 1964, respondent 4, one of the two arbitrators made an application in a Court at Delhi that the other arbitrator Kartar Singh, be directed to file the award in Court and then the award be made a rule if the Court On the very day the Court at Delhi passed an order directing Kartar Singh arbitrator to file the award in Court which was done by him Subsequently the Delhi Court on December 8, 1964 baying come to the conclusion that it had no jurisdiction in the matter returned the application of respondent 4 for presentation in proper Court Or that respondent 4 presented the very same application on February 22, 1965 in the Court of First Class Subordinate Judge at Ludhiana The award already filed under the orders of the Delhi Court was with the application and thus came to the Ludhhiana Court

On notice of the application having been given to the five parties concerned the present applicants appeared and made an application that the award be made a rule of the Court, and, on the contrary, respondents 1 to 3 made an objection application under Sections 30 and 33 of the Arbitration Act, 1940 (Act 10 of 1940), praying that the award be not filed and not made a rule of the Court They raised various objections on their application including one of limitation that the application for filing the award having been made more than three years after the date of the award was barred by time Obviously they were making reference to Article 181 of the Limitation Act of 1908 in this respect. The trial Judge by his order of November 3, 1965, came to the conclusion that the application for filing the award having been made three years after the date of the award was barred by time and so he proceeded to dismiss that application. It is necessary here to repeat that the application for filing the award was made by one of the arbitrators, respondent 4 to this application, and not by any of the par-ties interested in the award.

4. An appeal was filed against the order of the trial Court by the present applicants and the Additional District Judge of Jullundur at Ludhiana has by his order of May 25, 1966, come to the conclusion that the appeal is not competent under Section 39 of Act 10 of 1940 because it is not covered by Clause (vi) of Sub-section (1) of Section 39 upon which clause alone the parties were relying in this respect before him as the order of the trial Court dismissing the application for filing the award as time barred is not setting aside or refusing to set aside an award' This is a revision application by the applicants against the appellate order of the learned Judge.

5. It has already been pointed out that no party to the award has made an application for filing the award in Court. No such party has made an application through the Court calling upon the arbitrators to file the award. No person claiming under any such party has done so either If the Delhi Court had jurisdiction in the matter it could be said that by its order of September 19, 1964, it had directed the filing of the award in Court, but that Court had no jurisdiction in the matter The award came to the Ludhiana Court -- the Court having jurisdiction in the matter -- on having been called by the Delhi Court, the Court not having jurisdiction in the matter and on that the applicants wanted the Court to make it a rule of the Court and respondents 1 to 3 wanted that the application of respondent 4 (one of the arbitrators) to file the award in Court to be dismissed as barred by time. Now the wording of Sub-section (2) of Section 14 of the Act 10 of 1940 as such, does not refer to this, that an arbitrator or an umpire can file an award himself though he can be compelled to do so, by the persons referred to in the sub-section through the Court.

However, in Narayan Bhawu v. Dewaji-bhawu, AIR 1945 Nag 117 Puranik J. was of the opinion that there is nothing in Section 14 which precludes an arbitrator from filing the award in Court and he considered it not correct to say that only the parties to the arbitration should make an application in Court for filing an award or causing an award to be filed. No doubt Sub-section (2) of Section 14 does not, in the negative, say that an arbitrator or umpire cannot file an award The fact in this case is that as respondent 4, as an arbitrator, brought the award to the Ludhiana Court with his application, for filing it, it must be accepted as a fact that it was he as an arbitrator, who filed the award in Court But it has been pointed out in Amod Kumar Varma v. Hari Prasad Burman, AIR 1958 All 720 by a Division Bench of that Court, that an arbitrator need not make an application for permission or leave to file the award and he can just file the award in Court without making any application, It means that no application was necessary, in law, by respondent 4 as an arbitrator for filing the award in Court, and it would make no difference that he in fact did make one such application. As no such application was necessary by respondent 4, his application for filing the award must be treated as a mere surplusage, in which case the occasion for dismissing the application for filing the award as barred by time cannot possibly arise in this case. The reason is obvious, for there is no such application and there can be no application.

It may be pointed out here that a Full Bench of the Madras High Court in Mahomed Yusuf v. Mohammed Hussain. AIR 1964 Mad 1 (FB) has been of the opinion that where an award made on a reference out of Court has not been filed into Court at the instance of any of the parties thereto within the time permitted by Article 178 of the Limitation Act 1908, it will he open to the Court to passed decree in terms thereof, if it is produced before the Court by the arbitrators themselves it would then be competent to the Court to investigate into the validity of such an award. In the present case the award has come before the Court not through any step taken by either the applicants or respondents 1 to 3 but by a step taken by one of the arbitrators respondent 4, in filing the award in Court, having had it produced by the other arbitrator through the agency of the Delhi Court. So the Ludhiana Court having the award before it just could not ignore it by saying that it found the application for filing the award by one of the arbitrator as barred by time for as stated, no such application was necessary, and an application not necessary cannot be barred by time. It is in these facts and circumstances and on this approach that this case has to be looked at and the conduct of the trial Court in refusing to adjudicate on the validity it otherwise of the award has to bf seen In that approach apparently the substantive effect of the order of the trial Court is no more but to set aside the award because it has refused to make it a rule of the Court, and immediately the order of the trial Court comes within the scope and ambit of Clause (vi) of Sub-section (1) of Section 39 of Act 10 of 1940, and thus the appeal to the District Judge was competent under that provision.

6. In consequence, this revision application is accepted the appellate order ofthe appellate Court is set aside, and the direction to the appellate Court now is to proceedto hear the appeal on merits and dispose ofit according to law There is no order inregard to costs in this application. The parties are directed to appear before the appellate Court on November, 20, 1967.


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