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Balkishan Vs. Pannalal Sud and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 668 of 1969
Judge
Reported inAIR1973Delhi108; 8(1972)DLT129
ActsConstitution of India - Article 226
AppellantBalkishan
RespondentPannalal Sud and ors.
Advocates: S.N. Marwah,; Ved Vyas,; J.K. Kohli and;
Cases ReferredShri Sohan Lal v. Union of India
Excerpt:
.....- jurisdiction - article 226 of constitution of india - writ petition for directing arbitrator to file award - arbitrator private person - no writ can be issued against such arbitrator - writ petition liable to be dismissed. - - it is admitted by the petitioner in the rejoinder dated 28th october, 1969 which he filed in reply to counter-affidavit dated 20th september, 1969, that the petitioner as well as other parties to the arbitration agreement were notified about the making of the award and signed copies of the award were also given on the same date. preliminary objections have been taken by the respondents and as the writ petition must fail on these, it is not necessary to deal with the rest of the allegations in the petition. such an arbitrator appointed under the arbitration..........in short is that as the matter was referred to the arbitration of respondent no. 1 who is a private arbitrator no writ under article 226 of the constitution lies against a private arbitrator and the relief of asking a writ of mandamus or any other appropriate writ is mis-conceived. (8) another preliminary objection taken is that there was no ground to make the extraordinary jurisdiction of this court under article 226 of the constitution when the writ has been filed later deliberately. it is admitted by the petitioner that the arbitrator notified the making of the award and even signed copies of award were given on the date of announcing of the award. the petitioner had 30 days under article 119 of the limitation act 1963 to move the court for filing in court of the award. this.....
Judgment:

Rajinder Sachar, J.

(1) The main question that arises for determination in the present petition is whether the arbitrator to whom private reference is made by a written agreement is amenable to the jurisdiction of this court under Article 226 of the Constitution.

(2) The petitioner and respondents 3 and 4 are real brothers, Respondent No. 1 is cousin brother of the petitioner and Respondent No. 2 is son-in-law of Atma Ram who is petitioner's uncle.

(3) The petitioner and his brothers, respondents 3 & 4 were doing business in partnership with respondent No. 2 under the name and style of 'Bags and Cartons'. The petitioner and respondent No. 2 were also carrying on business of Pioneer Paper Projects. Disputes having arisen between the petitioner and respondents 2, 3 and 4, they entered into two agreements to refer the disputes to the sole arbitration of respondent No. 1. Respondent No. 1 gave one award dated 15th November, 1968, in respect of and in connection with both the arbitration agreements. It is admitted by the petitioner in the rejoinder dated 28th October, 1969 which he filed in reply to counter-affidavit dated 20th September, 1969, that the petitioner as well as other parties to the arbitration agreement were notified about the making of the award and signed copies of the award were also given on the same date. The petitioner's allegation, however is that in spite of his approaching respondent No. 1 to get the entire award implemented by respondents be has been put off on one excuse or other and only part of the award has been implemented. It is also alleged that the petitioner requested respondent No. 1, arbitrator to file the award and the arbitration record in court to enable him to take such further act ion thereof as permissible in law. But respondent No. 1 has not acceded to this request. It has also been alleged that the petitioner sent a letter dated 26th May, 1969 to respondent No. 1 asking him to file the award on his behalf but no action has been taken. It is alleged that respondent No. 1 at the instance of respondent No. 2 has refused to carry out his legal obligation which is cast upon him under the provision of Arbitration Act and the refusal of respondent No. 1 is mala fide and against the legal obligation under the law. It has also been stated that the limitation for the filing of the application under section 17 of the Arbitration in Court has already expired and, thereforee, the writ petition is the only remedy available to him A writ in the nature of mandamus is sought directing respondent No. 1 to file in the Delhi High Court the original award and the depositions and documents proved before him including the original arbitration agreements dated 3rd October, 1968 and 2nd November, I968.

(4) Return has been filed by the respondents. The allegation of conspiracy and coercion between respondent No. 1 and others has been denied. It is also denied that the respondents have not carried out of implemented their obligation under the law. It is maintained that the petitioner has no right and that his grievance is not genuine.

(5) A rejoinder was also filed by the petitioner in which details have been mentioned as to and in what manner the award has not been implemented.

(6) I am not referring to these various allegations and counter allegations on merits because they have no relevance for the purpose of deciding the petition before me. Preliminary objections have been taken by the respondents and as the writ petition must fail on these, it is not necessary to deal with the rest of the allegations in the petition.

(7) The main objection taken is to the maintainability of the writ petition. The argument in short is that as the matter was referred to the arbitration of respondent No. 1 who is a private arbitrator no writ under Article 226 of the Constitution lies against a private arbitrator and the relief of asking a writ of mandamus or any other appropriate writ is mis-conceived.

(8) Another preliminary objection taken is that there was no ground to make the extraordinary jurisdiction of this court under Article 226 of the Constitution when the writ has been filed later deliberately. It is admitted by the petitioner that the arbitrator notified the making of the award and even signed copies of award were given on the date of announcing of the award. The petitioner had 30 days under Article 119 of the Limitation Act 1963 to move the court for filing in court of the award. This admittedly he did not do. It is not necessary to determine the reason why the petitioner did not do so. He has alleged that the respondents acted in a devious and by that impression kept away from moving the court. This allegation of course has been denied by the respondent. It is not necessary for me to give any finding as to which of the allegations is correct because I am only concerned with the fact that the petitioner admittedly did not move the court within 30 days as provided in Article 119 of the Act. Mr.Marwah, learned counsel for the petitioner, contends that section 14 of the Arbitration Act, 1940 provides that the arbitrator shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees cause the award to be filed in court. According to the learned counsel no limitation period is provided under Section 14(2) of the Arbitration Act. The petitioner has according to the learned counsel, called upon the arbitrator to file the award in court which he has refused and thereforee the petitioner can ask for a writ of mandamus directing the arbitrator to file the award as required by section 14(2) of the Arbitration Act. This argument assumes as if there is no limitation provided for an application to be made by a party to compel the arbitrator to fib the award. In my view this contention is based on a complete mis-conception of the scope of section 14 of the Arbitration Act. Article 119 of the Limitation Act, 1963 reads as follows :-

Description of Period of Time from which period application limitation begins to runs 119 Under the Arbitration Act, 1940. (a) for the filing in court Thirty days The date of service of the of an award. notice of the making of award. (b) for setting aside an Thirty days The date of the service of award or getting an the notice of the filing of award remitted for the award. reconsideration.

Clause (a) of this Article corresponds to Article 178 of the Limitation Act, 1908 and clause (b) corresponds to Article 158 of the said Act. The period of 90 days provided by Article 178 has been reduced to 30 days in the present Article i.e. Article 119 of the Limitation Act, 1963. According to clause ('.) of Article 119, thersfore, a party has to apply within 30 days from the date of service of the notice of the making of the award for filing in court of an award. Admittedly the petitioner was served with a notice of making of the award on 15th November, 1968. He, thereforee had 30 days within which to file an application for the filing in court of an award. Sub-section (2) of Section 14 of the Arbitration Act casts a duty upon the arbitrator to cause an award or a signed copy of it to be filed in the court under the circumstances mentioned in that section. If the arbitrator himself-files the award in the court. Article 178 of the Limitation Act, 1908 is not applicable as the said Article has been held to b. applicable only where a party applies and rot to the filing of the awed by the arbitrator see Champa Lal.v Mst. Son.rathlai Vide sub-section (2), thereforee, if the party requests the arbitrator to file the award and the arbitrator chooses to file the award no period of limitation is provided for and the same can be done by the arbitrator himself at any time see Mati Ram v. Mangal Singh etc. C.R. 276/68 decided by me on 15th September, 1971. But if after the party had asked the arbitrator or even without asking him wants the court to direct him to file the award it is incumbent on him to move an application to the court to mike the said order. It is this application which is made to the court to direct the arbitrator to file the award to which Article 178 of the Limitation Act 1908 applies, it was held in Jayantilal Jamnadas v. Chhaganlal Nathoubhai M/s. Francesco Corsi v. M/s. Gorakhram Gokalchand, and Hazi Rahmetulla v. Chaudhari Vidya Bhusan. It thereforee, cannot be held that Article 178 of the Limitation Act 1908 (now Art. 119) does not apply to an application to direct or compel the arbitrator to carry out his obligation under Section 14(2) of the Arbitration Act. This also disposes of the argument of the learned counsel for the petitioner that there was no provision in the Arbitration Act as to what was to happen if'on the request of the party, the arbitrator was to refuse to file the award. The answer to that is that the parties can ask- the arbitrator to file the award but it must see to it that if the award is not 'filed by the arbitrator within 30 days it must move an application to the court for a direction to the arbitrator to file the award But if it fails to apply within time, it runs the risk of a bar of limitation.

(8) In order to decide whether a writ under Article 226 of the Constitution can issue to the arbitrator, it is necessary to understand the scope of the arbitration proceedings in the Arbitration Act. An arbitration arises by reasons of an agreement between the parties. The essence of this type of an arbitration is that-by an agreement between- the parties for the settlement of their disputes the parties by consent submit their matters for determination to' a Tribunal provided under the law. In a broad sense arbitration is a substitution by consent of parties of another Tribunal for the Tribunal provided by ordinary process of law a domestic tribunal as distnguished' from a regular court established under law. An arbitration is an arrangement for investigation and determination of a Matter between the Contestation parties by one or more unofficial prosses chose by the parties. Such an arbitrator appointed under the Arbitration Act is a private arbitrator, see : (1962)IILLJ760SC in that very case their lordship distinguished the position of such a private arbitrator from an arbitrator appointed under Section 10-A of the Industrial Disputes Act, and opined that having regard to certain provisions of the Industrial Disputes Act it was possible to describe an arbitrator appointed under Section 10-A of the Industrial Disputes Act as a statutory arbitrator An arbitrator appointel under Section 10-A of the in 'ustrial Disputes Act has all the essential attributes of a statutory arbitrator and thereforee, a writ under Article 226 of the Construction can he issued to him, is now well settled vide Nowrozabad Colliery Muzdoor Sangh v. F. Jeejeebhoy , and Rohtak Delhi Transport (Pvt.) Ltd. v. Ch. Risal Singh.. Mr. Marwah relied on these authorities for his submission that just as writ can issue to an arbitrator under the Industrial Disputes Act, similarly a writ can issue to an arbitrator who was governed by the Arbitration Act. In my view there is obvious fallacy in the argument. The basis of the decisions holding that a writ can issue to an arbitrator appointed under the Industrial Disputes Act is on the finding that an arbitrator under the Industrial Disputes Act is a statutory arbitrator. A writ of mandamus is an order 'directing any person, corporation or a tribunal requiring him or them to do some particular thing therein specified which pertains to his or their office and is in the nature of a public duty. Before thereforee a writ of mandamus can issue, it must be shown that the authority to which a writ is directed is under a statutory duty to perform an Act, the performance of which it is sought by the issuance of writ. One of the reasons for holding that an arbitrator under Section 10-A of the Industrial Disputes Act is a statutory arbitrator is because sub-section (5) of Section 10-A of the Industrial Disputes Act excludes the applicability of the Arbitration Act under that Setion. Thus the award given :by the arbitrator under Section 10-A cannot be challenged by means of proceedings under the Arbitration Act. Moreover an award under Section 2(b) of the Act includes an award udder Section 10-A and 17-A and read with Section 18 the award became enforceable and binding on the parties on the expiry of thirty days from the date of its publicalion. Thus the award under Section 10-A his a bin-ling force of us own and does not depend upon any adjudication by a court of law to give it offectiveness, unlike the position of an award by a private arbitrator which unless it is made, a rule of the court has no efficacy.

'the reliance thereforee, of the counsel for the petitioner on the analogy of the arbitration under Section 10-A of the Industrial Disputes Act is of no avail to the petitioner. Mr. Marwah also referred to Hurt Vishnu Kamath v.Ahmad.Ahnad lshakue and other. But that case has no relevancy because that case was dealing with the power of the High Court to issue writs against the decision of the Election Tribunal. On the other hand we have a decision of the Queen's Bench Decision reported as R. V. Disputes Committee of the National Joint Council for the Craft of Dental Technicians and others,' which has hull that the court has no power to direct the issue of orders of certiorari or of prohibition addressed to an arbitrator unless he is acting under powers conferred by statute. Lord Godard, C. J. observed as under :- 'Arbitration is a very of remedy in English law, but in all the centuries that have passed since the decisions of English courts first began there is no trace of an arbitrator being controlled by this court by writ of either prohibition or cerliorari. The bodies to which in modern times the remedies of these prerogative writs have been applied are all statutory bodies on whom Parliament has conferred statutory powers and duties the exercise of which may lead to the deterrent of subjects as, for instance, where a statute gives a certain body power for the compulsory acquisition of land and an arbitrator is set up by Parliament to assess the compensation, and it is essential that the courts should be able to control the exercise of the statutory jurisdiction within the limits imposed by Parliament. and a statutory arbitrator is a person to whom, by statute, the parties must resort. It would be an enormous departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator.'

--- * * * ---

Croom-Johnson, J. observed in that very case as under :-

'THISbeing a private arbitration between private individuals and directed by agreement to a body which has the name of the National Joint Council for the Craft of Dental Technicians, all the matters in dispute must be dealt with by persons who represent that body. That is all. They are in no sense a public body. Their authority does not depend on any statutory jurisdiction. People are not compelled to abide by their decision. This is a private tribunal set up as arbitrators by agreement between the parties.'

Mr. Marwah suggested that the fact that the award given by the arbitrator is liable to be set aside or to be made a rule of the court under the provision of the Arbitration Act makes the arbitration a statutory cue. In my view there is no merit in the argument. The learned counsel's submission that the courts have been given power under the Arbitration Act to deal with the arbitrator or his award does not mean that the arbitrator is a statutory arbitrator in the sense of being a public body to whom either the arbitration has necessarily to be referred to or in the sense that his award by itself has been given a finality and recognition by a statute. It is these vital differences between a private arbitrator and an arbilra'or under Section 10-A of the Industrial Disputes Act that mikes all the difference and makes the private arbitrator not amenable to the jurisdiction of this court under Article 226 of the Constitution. I can find no injustice or harshness in arriving at the conclusion that the private arbitrator is not subject to the writ Jurisdiction diction of this court. This is because the Arbitration Act, 1940 is a complete code which provides for control over the powers all functions of the arbitrator and any party aggrieved by it has ample remedy provided under the Act. The fact that the petitioner might have, for reasons into which it is not necessary to go into, d;barred himself because of Imitation to move the court to give him relef, does not entitle him to invoke the jurisdiction of this court against an arbitrator who is no more than a private person. It has been held that the writ of mandamus does not issue to a private individual and only issues to a person directing him to do a particular thing specified in the order which appertains to his office and is in the nature of public duty vide Shri Sohan Lal v. Union of India I would, thereforee hold that the arbitrator appointed under the Arbitration Act, 1940, is not amenable to the jurisdiction of this court under Article 226 of the Constitution, and it is, thereforee, not possible to issue any writ. In view of the decision on this point it is not necessary to discuss whether the petitioner is disentitled to any relief on the ground of delay, nor is it necessary to consider whether in view of the fact that the petitioner had admittedly a remedy under the Arbitration Act but allowed that to be barred by time, he can be allowed to avail of an alternative remedy of writ (assuming that the same was available) on the parity of reasoning that a party cannot be allowed to sit and allow his remedy to become time barred and then try to resort to invoke the extra-ordinary jurisdiction of this court under Article 226 of Constitution. The result is that there is no merit in the petition and the same is dismissed with costs. Counsel's fee Rs. 100.00.


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