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Grand Cashew Corporation and ors. Vs. Gibbs Nathaniel (Canada) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. Nos. 3401, 3404, 3405, 3416, 3420, 3421, 3423 to 3425 and 3427 of 1982
Judge
Reported inAIR1984Ker33
ActsForeign Awards (Recognition and Enforcement) Act, 1961 - Sections 5(1) and 6; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 1, Rule 10 - Order 6, Rule 17 - Order 21, Rule 50
AppellantGrand Cashew Corporation and ors.
RespondentGibbs Nathaniel (Canada) Ltd.
Appellant Advocate S. Easwara Iyer and; E. Subramani, Advs.
Respondent Advocate K.A. Nayar and; E.R. Venkiteswaran, Advs.
DispositionRevision dismissed
Excerpt:
- .....is whether the partners of a firm can be impleaded in an applicalion under section 5 (1) of the foreign awards (recognition and enforcement) act, 45 of 1961, for short the foreign awards act, for filing the foreign award obtained against the firm in an arbitration and whether the application can be amended accordingly. the petitioners in these civil revisions are registered firms doing export business and against whom foreign awards were obtained in arbitration by the respondent-company. the respondent filed applications under section 5 (1) of the foreign awards act before sub court, quilon for filing the awards in court. the respondent called upon the petitioners to disclose the names of their partners. on getting the names and addresses of the partners the respondent filed.....
Judgment:
ORDER

K.K. Narendran, J.

1. The short point that arises in these Civil Revisions is whether the partners of a firm can be impleaded in an applicalion under Section 5 (1) of the Foreign Awards (Recognition and Enforcement) Act, 45 of 1961, for short the Foreign Awards Act, for filing the foreign award obtained against the firm in an arbitration and whether the application can be amended accordingly. The petitioners in these civil revisions are registered firms doing export business and against whom foreign awards were obtained in arbitration by the respondent-company. The respondent filed applications under Section 5 (1) of the Foreign Awards Act before Sub Court, Quilon for filing the awards in Court. The respondent called upon the petitioners to disclose the names of their partners. On getting the names and addresses of the partners the respondent filed interlocutory applications in all the cases to implead the partners and to amend the applications filed under Section 5 (1) accordingly. The petitioners objected. But their objections were overruled by the Court and in all the cases the partners of the firms were allowed to be impleaded and the applications for filing the awards amended. The petitioners have challenged the above orders of the Sub Court in these civil revisions. As the questions involved are the same, the civil revisions were heard together.

2. Shri E. Subramoni, the learned counsel for the petitioners, contended : The awards are only against the firms and not against their individual partners. As per Section 6 of the Foreign Awards Act a decree is to be passed only in terms of the award. If partners are not parties to the award a decree cannot be passed against them. The provisions of the Civil P. C. can only apply subject to the provisions of the Foreign Awards Act. In that case, why should the partners be impleaded and why should the applications made to the Court under Section 5 (1) of the Foreign Awards Act be amended.

3. Shri E. R. Venkateswaran of Messrs. Menon & Pai contended on behalf of the respondent-company. As per Section 5 (1) of the Foreign Awards Act, the application has to be numbered and registered as a suit. As per Section 6, the award has to be filed in Court and judgment according to the awardhas to be passed. A decree is also to be drawn up in accordance with the judgment The decree being against a firm, under Order XXI, Rule 50, C. P. C, it can be executed against a partner only if he has been served as a partner with summons. In these cases, the awards are against the firms and the decrees that are to be passed on the basis of the awards can be executed against the partners only if they are served with summons in the applications filed under Section 5 (1) of the Foreign Awards Act. So, the orders for impleading the partners of the firms and for the consequential amendments of the applications under Section 5 (1) do not call for any interference.

4. Section 5 of the Foreign Awards Act which provides for filing the award in Court insists that the application for filing the award in Court shall be numbered and registered as a suit. Section 6 provides for a judgment according to the award and that a decree should follow. The proceedings have to be treated as a miscellaneous proceedings in a Court of Civil Jurisdiction. So, as per Section 141 of the Civil P. C., the procedure prescribed therein in regard to suits shall apply. Order XXX of the C. P. C., prescribes the procedure in the matter of suits by or against firms. Execution of a decree against a firm is governed by Order XXI, Rule 50. As per Rule 50 (4), a decree against a firm will not release, render liable or otherwise affect any partner unless he has been served with summons, in the case but the property of the firm will be liable. The decree-holder can, with the leave of the Court, execute a decree obtained against a firm against a partner of the firm who was not served with summons in the case if the Court which passed the decree gives him leave. So, a decree passed against a firm without summons issued to the partners only postpones the evil day as far as the partners are concerned. As the judgment that is to be pronounced and the decree that should follow under Section 6 of the Foreign Awards Act are against a firm and are to be in accordance with the procedure prescribed by the Civil P. C., a partner cannot successfully resist his impleadment in the application filed under Section 5 for filing the award in Court. The petitioners cannot take shelter under the words 'pronounce judgment according to the award' in Section 6 because the judgment and decree are against a firm and the proceedings are to be in accordance with the provisions of the Civil P. C. Order VI, Rule 17, C. P. C., provides for amendment of pleadings for the purpose of determiningthe real question in controversy between the parties. When additional parties are impleaded, it goes without saying that the application filed under Section 5 (1) of the Foreign Awards Act will have to be amended.

5. In the above view I have taken, the orders impugned in these civil revisions do not call for any interference by this Court and that too in revision under Section 115, Civil P. C. In view of the fact that the applications for filing the awards are pending from 1979 onwards, I direct the Court below to try and dispose of the same as expeditiously as possible and at any rate within three months of the receipt of a copy of this order by it. The civil revisions are dismissed with the above directions. No costs.


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