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Banarsi Dass Vs. Om Parkash and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Appln. No. 54 of 1956
Judge
Reported inAIR1957P& H301
ActsArbitration Act, 1940 - Sections 14(2) and 44; Arbitration Rules - Rule 10
AppellantBanarsi Dass
RespondentOm Parkash and ors.
Appellant Advocate H.L. Sarin, Adv.
Respondent Advocate D.N. Aggarwal and; Rajindar Nath, Advs.
DispositionRevision petition dismissed
Cases ReferredGanga Ram v. Radha Kishan
Excerpt:
.....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. - it was held that section 14(2) clearly implies that where the award or a signed copy thereof is in fact filed into court by a party he should have the authority of the arbitrator or the umpire for doing so, and also that where the award is handed over by the arbitrator or the umpire to the party, it cannot be assumed that the mere handing over of the..........to be filed if so directed by the court. the direction may be given if it is applied for by a party. rule 10(a) refers only to an application by a party for causing an award to be filed by the arbitrator and not to an application for himself filing the award. sub-clause (c) of the rule pre-supposes an application under sub-clause (a); it does not extend the operation of clause (a) to an application by a party, on his own account, without any authority from the arbitrator, to file the award. it comes into play only where an application is presented in accordance with the provisions of clause (a).7. it is next contended that the learned sub-judge, before whom the application was presented ought to have given time to the petitioner to prove that he was duly authorised by the arbitrator.....
Judgment:
ORDER

Chopra, J.

1. This petition for revision is directed against an order of District Judge, Karnal,confirming that of the trial Court refusing an'application presented by Banarsi Dass petitioner under Section 14(2) of the ArbitrationAct.

2. The parties entered, into an arbitration agreement on 27th April. 1954. The four arbitrators gave their unanimous award on 25th August, 1954. The award was registered on 4-10-1954. On 28th October, 1954, Banarsi Dass petitioner presented an application under Section 14(2) of the Arbitration Act stating that the award was handed over to him by the arbitrators and praying the same to be filed in Court. The Courts below rejected the application on the ground that, under the law, no such application was permissible.

3. The matter seems to be fully covered by a decision of their Lordships of the Supreme Court in Kumbha Mawji v. Dominion of India AIR 1953 SC 313 (A). The facts Of that case were almost similar. It was held that Section 14(2) clearly implies that where the award or a signed copy thereof is in fact filed into Court by a party he should have the authority of the arbitrator or the umpire for doing so, and also that where the award is handed over by the arbitrator or the umpire to the party, it cannot be assumed that the mere handing over of the award to the party necessarily implies the authority of the arbitrator or the umpire to file the aame into Court on his behalf.

4. Mr. Sarin, learned counsel for the petitioner, relies upon a Division Bench judgment of this Court in Ganga Ram v. Radha Kishan (S) AIR 1955 Punj. 145 (B) and also on Rule 10 of the Arbitration Rules framed by this Court under Section 44 of the Arbitration Act. The facts of the above case, however, are clearly distinguishable. There, an application for. making the award a rule of the Court and for passing a decree in accordance with the terms thereof was made by a party to the arbitration agreement under Section 17 of the Arbitration Act. The questions that arose for decision were.

'1. Whether the rules framed by the High Court under Section 44, Arbitration Act, 1940, are inconsistent with the provisions of the Act and

(2) Whether Article 173, Limitation Act, 1908, provides period of limitation for applications made by parties to the reference ?'

The rules were held to be intra vires. On the second question, it wag held that Article 178, Limitation Act was not applicable to an application for enforcement of award made by a party to the arbitration agreement. Consequently; the application was held to be within time. Certain observations made by Harnam Singh J., no doubt, seem to favour the view that Sections 14(3) and 38, Arbitration Act, read with Rule 10 of the Arbitration Rules contemplate that in certain case's parties to the arbitration may also file the award in Court.

At one time during arguments I was seriously considering the advisability of referring the case to a larger Bench. These observations however, have to be interpreted in the light of the facts of the case. The learned Judge did not make any reference to the Supreme Court authority referred to above. Kapur J., who recorded a separate Judgment after giving the facts of that case distinguished it, saying

'Now this case dealt with applications under Section 14(2), Arbitration Act, which specifically provides for the filing of the award by the arbitrator either at the instance of a party or under the directions of the Court. It is not a section which deals with the right of a party to file an application for the enforcement of an award. It cannot be said that where the award is handed over to a party he cannot make an application 'de hors' Section 14 and that is obvious from a perusal of the-other sections of the Arbitration Act

Under Section 32 a suit on an award does not lie. Under Section 33 an application can be made for challenging the existence of an arbitration agreement or an award, and under Rule 10 of the Rules made by this Court which I have quoted above a party as also an arbitrator or an um-pire can cause an award to be filed in Court in the manner prescribed in Rule 3'.

5. As regards the rules, I am of opinion thatthey do not expressly authorise a party to submit anapplication for filing of the award into Court. Rule10 reads :

'10. Filing of award. (a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the manner prescribed in rule No. 3.

(b) When the award is filed by the arbitrator or umpire, he shall, together with theaward, send to the Court any depositions anddocuments which have been taken and provedbefore him, and the opinion pronounced by theCourt on the special case submitted by him, ifany, in accordance with Section 14 of the Act,by forwarding the same under a sealed cover addressed to the Court. He shall also send together with the award a' copy of the notice given to the parties, concerned arid affidavit of service of such notice' and of attestation of his signature on the award.

(c) When the award is filed by any of the parties to the arbitration under Clause (a), the party may move the Court for directing the arbitrator to produce in original such of the documents as were produced before him together with the record of the arbitration.' Rule 3 merely prescribes the mode of the application, how and to whom it shall be presented.

6. Now, under Sub-clause (a) of Rule 10 a party to the arbitration agreement may only cause the award or a signed copy thereof to be filed in Court. This is exactly what is provided by Section 14(2) of the Arbitration Act. According to that section, the arbitrator or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party, cause the award or a signed copy of it to be filed in Court. The arbitrator may not himself file the award in Court, but may authorise somebody else to file it on his behalf. The award may be sent by the arbitrator to Court by post with a request for filing the same. The section further provides that the arbitrator shall cause the award to be filed if so directed by the Court. The direction may be given if it is applied for by a party. Rule 10(a) refers only to an application by a party for causing an award to be filed by the arbitrator and not to an application for himself filing the award. Sub-clause (c) of the rule pre-supposes an application under Sub-clause (a); it does not extend the operation of Clause (a) to an application by a party, on his own account, without any authority from the arbitrator, to file the award. It comes into play only where an application is presented in accordance with the provisions of Clause (a).

7. It is next contended that the learned Sub-Judge, before whom the application was presented ought to have given time to the petitioner to prove that he was duly authorised by the arbitrator to file the award. The contention has no force. As observed by the Supreme Court, that authority has to be specifically alleged arid then proved. Since no such allegation was made in the petitioner's application, any subsequent prayer would be of no avail. The application was never sought to be amended, nor is it prayed for even now. In any case, I do not think that would be a good ground for interference in revision.

8. In the result, the petition fails and isdismissed. In view of the facts of the case, Ishall direct the parties to bear their own coststhroughout.


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