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Kerala State Housing Board Vs. E.A. Yusuff - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3165 of 1983-C
Judge
Reported inAIR1984Ker112
ActsArbitration Act, 1940 - Sections 20(4) and 41; Code of Civil Procedure (CPC) - Order 26, Rule 9
AppellantKerala State Housing Board
RespondentE.A. Yusuff
Appellant Advocate P. Sukumaran Nayar,; A.K. Chinnan and; Xavier Cherian
Respondent Advocate P. Gopalakrishanan Nair and; D. Somasundaram, Advs.
Cases ReferredKamaluddin Ansari v. Union of India
Excerpt:
- - ..and therefore the appellant was entitled to invoke order 39 of the code to get an injunction order even if the conditions of clause (b) are not satisfied......41, and that the power, under clause (a) was still available to the court, to issue interim orders of injunction. i am not quite sure hether the reasoning and the conclusion in baby paul (air 1978 ker 223) could so easily be distinguished, in relation to the facts of the present case. at any rate, the supreme court has recently held in kamaluddin ansari v. union of india ((1983) 4 scc 417) : (air 1984 sc 29) that the power to issue an order of injunction could be found only in clause (b) of section 41, and not in clause (a). the court, said (at p. 33) :--'.......faced with the difficulty......... learned counsel for the appellant fell back on clause (a) of section 41 to contend that clause (a) makes the code of civil procedure applicable to all proceedings before the.....
Judgment:
ORDER

M.P. Menon, J.

1. The respondent moved an application, under Section 20 of the Arbitration Act, for 'filing' the arbitration agreement before court. He also applied for issue of a commission for local inspection, under, Order 26. Rule 9, Civil P. C. The petitioner contended that till an order of reference was made under Sub-section (4) of Section 20, the power under Section 41 of the Act could not be exercised. The court below did not express any opinion on this question of jurisdiction, but allowed the commission application. The petitioner objects.

2. In. Baby Paul v. Hindustan Paper Corporation (AIR 1973 Ker 223) Vadakkel J. had taken the view that orders in respect of matters set out in items (1) to (4) of the Second Schedule to the Arbitration Act could be issued under Section 41(b) of the Act only after the passing of an order of reference. In other words, such orders could not be issued in proceedings under Section 20 till the stage of reference was reached. Observing that such orders could only be interlocutory in nature, and that there could be no question of any interlocutory order till the arbitrator was seized of the main dispute, his Lordship said (at p. 224):--

'....:.the court's power of making orders in respect of matters set out in items (1) to (4) of the Second Schedule to the Arbitration Act, 1940 is only to make interlocutory orders in interlocutory proceedings during the course of the arbitration proceedings pending determination of the rights of parties thereto finally by an order passed by the arbitrator, and the court is not competent to pass an order in those matters anticipating a reference.'

It was further held that:--

'......arbitration proceedings commence only on the arbitrator getting authority to arbiter, and act in that behalf.'

3. The decision was however distinguished in Gokuldas v. Union of India (1983 Ker LT 266) : (AIR 1983 Ker 169) where Narendran J. thought that the observations should be confined to cases where parties invoke the power of the court under Clause (b) of Section 41, and that the power, under Clause (a) was still available to the court, to issue interim orders of injunction. I am not quite sure hether the reasoning and the conclusion in Baby Paul (AIR 1978 Ker 223) could so easily be distinguished, in relation to the facts of the present case. At any rate, the Supreme Court has recently held in Kamaluddin Ansari v. Union of India ((1983) 4 SCC 417) : (AIR 1984 SC 29) that the power to issue an order of injunction could be found only in Clause (b) of Section 41, and not in Clause (a). The court, said (at p. 33) :--

'.......Faced with the difficulty......... learned counsel for the appellant fell back on Clause (a) of Section 41 to contend that Clause (a) makes the Code of Civil Procedure applicable to all proceedings before the Court......... and therefore the appellant was entitled to invoke Order 39 of the Code to get an injunction order even if the conditions of Clause (b) are not satisfied. We are afraid this contention cannot be accepted.'

'Clause (a) of Section 41 makes only the procedural rules of the Code of Civil Procedure applicable to the proceedings in court under the Arbitration Act. This clause does not authorise the court to pass an order of injunction. The power is conferred by Clause (b) of Section 41. The source of the power, therefore, cannot be traced to Clause (a) ...... Besides, if Clause (a) of Section 41 gave wide powers to pass an order of injunction, Clause (b) of Section 41 would become otiose.'

4. It is settled law that reference can be made to headings of sections or marginal notes when difficulty arises in interpreting the scope and meaning of a provision. The heading of Section 41 is 'Procedure and Powers of Court', Clause (a) only 'applies' the provisions of the C.P.C. to proceedings before the court; conferment of power to make orders in respect of matters in the Second Schedule is made by Clause (b). That perhaps is the reason why the Supreme Court said that Clause (a) is concerned with procedure and that the power to issue interlocutory orders has to be found in Clause (b).

5. It is however unnecessary to pronounce finally on the question, because the question of jurisdiction had first to be considered by the lower court itself as it was raised before it. It could not have ordered appointment of a commission without pausing to consider whether it had jurisdiction to do so at that stage.

6. I therefore set aside the order impugned and direct the court below to consider the question of jurisdiction first, if it is disposed to lake up the commission application on merits. The petitioner Board has a case that it has no objection at all to the making of a reference to the Chief Engineer, as provided for in the agreement, if the respondent makes a request in that behalf before the Regional Engineer. It is for the court below to examine, in view of the above, whether it is necessary at all to take up the commission application for consideration before the making of an order of reference.

7. Allowed as above. No costs.


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