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Palaparthi Venkataramayya and ors. Vs. Duggina Papayya and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtChennai
Decided On
Reported inAIR1943Mad718; (1943)2MLJ152
AppellantPalaparthi Venkataramayya and ors.
RespondentDuggina Papayya and ors.
Cases ReferredMamidi Appayya v. Ydem Venkataswami
Excerpt:
- - that is precisely what the petitioners say here. 4. there is clearly no difficulty in arbitrations in suits in notice being given by the arbitrators to the parties that an award has been made or in the court's giving notice to the parties that the award has been filed into court. the question is whether the failure to give notice as required by the act is a material irregularity which vitiates the decree. i am therefore not at all sure that the failure to comply with the mandatory provisions of the arbitration act did not lead to an injustice in preventing the defendants from raising objections to the award. as the parties clearly have notice of the passing of the award, it is unnecessary now for the arbitrators to issue notice......of the award and that time was extended frequently, until at last, on the 26th april, 1941, the award was filed by the fifth arbitrator and signed by three other arbitrators. that was the last day on which the court sat before the summer vacation. the judge ordered the suit to be called again on the 11th june, 1941, two days after the reopening of the court. on that day, as no petition had been filed to set aside the award, the suit was decreed in terras of the award. this revision petition has been filed by the defendants, complaining that the provisions of the arbitration act were not complied with, in that they were given no notice either by the arbitrators or by the court, that they had no opportunity to file objections, and that the decree is therefore a nullity.2. the plaintiff.....
Judgment:

Horwill, J.

1. The matter in dispute in O.S. No. 182 of 1939 on the file of the District Munsiff of Nandalur was referred to five arbitrators. They were given time for the filing of the award and that time was extended frequently, until at last, on the 26th April, 1941, the award was filed by the fifth arbitrator and signed by three other arbitrators. That was the last day on which the Court sat before the summer vacation. The Judge ordered the suit to be called again on the 11th June, 1941, two days after the reopening of the Court. On that day, as no petition had been filed to set aside the award, the suit was decreed in terras of the award. This revision petition has been filed by the defendants, complaining that the provisions of the Arbitration Act were not complied with, in that they were given no notice either by the arbitrators or by the Court, that they had no opportunity to file objections, and that the decree is therefore a nullity.

2. The plaintiff raises a preliminary objection that no revision lies, relying on Ghulam jilani v. Mahammad Hassan (1901) 12 M.L.J. 77 : L.R. 29 IndAp 51 : I.L.R. 29 Cal. 167 (P.C.). That was a case where an objection to the award was taken in appeal on the ground that it should have been raised in a proper application before the trial Court. It was held that no appeal lay and that the appeal ought not to have been converted into a revision petition, because if the matter could not be raised in appeal, then a fortiori the matter could not be raised in revision, when the parties had another remedy by way of filing objections in. the trial Court. That decision was followed in Batcha Sait v. Abdul Gunny : (1913)25MLJ507 , but the learned Judges there distinguished Velu Pillai v. Appasami Pandaram (1910) 21 M.L.J. 444 : (1911) 1 M.W.N. 141 which dealt with a case similar to that under consideration here and said that Velu Pillai v. Appasami Pandaram (1910) 21 M.L.J. 444 : (1911) 1 M.W.N. 141 did not deal with an impeachment of an award, but was a case where the express provisions of paragraph 16 of schedule II of the Civil Procedure Code, had been contravened. That is precisely what the petitioners say here. It is not that they wish to raise a point which they ought to have raised in the lower Court; but they desire to be given an opportunity in the lower Court of filing their objections. I hold that a revision petition does lie.

3. Section 14 of the Arbitration Act makes it clear that notice in writing must be given by the arbitrators to the parties that they have passed their award. They must then, at the request of either party or of their own accord, file the award into Court. It is then the duty of the Court to give notice to the parties of the fact that the award has been filed. Section 42 lays down the procedure to be adopted in giving notice by the arbitrator and in all notices other than through Court. Section 14 does not deal with arbitration in suits, but Section 25, which is in Chap. IV, which deals with 'arbitration in suits', says:

The provisions of the other chapters shall, so far as they can be made applicable, apply to arbitrations under this chapter.

4. There is clearly no difficulty in arbitrations in suits in notice being given by the arbitrators to the parties that an award has been made or in the Court's giving notice to the parties that the award has been filed into Court. The question is whether the failure to give notice as required by the Act is a material irregularity which vitiates the decree. Three cases have been cited before me, one of which is a Madras case, namely, Rangaswami v. Muthusami I.L.R.(1887) Mad. 144 where it was held that the omission was a material irregularity. In Chatarbuj Das v. Ganeshram I.L.R.(1898) All. 474 which followed Rangaswami v. Muthusami I.L.R.(1887) Mad. 144 it was pointed out that although it was probably true (as in this case) that the parties did know that the award had been filed, yet the provisions with regard to notice were mandatory and if they were not complied with, then no valid decree could be passed. That was followed again by the Calcutta High Court in Ranjit Chandra v. Dissqy Ram : AIR1926Cal1018 . In Srimati Saroj Bala Base v. Jatindra Nath Bose (1927) Cri.L.J. 458 the learned Judges came to the opinion that the proceedings before them were not void and that the irregularity in giving noticewas not a serious one. It appears that notice had there been given to the Vakil appearing for the applicant though his signature had not been taken in acknowledgment. That was not quite what Schedule II of the Civil Procedure Code contemplated; but it was held that the procedure actually adopted was nothing more than irregular. From an examination of the B memo, it does appear probable that the pleaders of the parties did know of the filing of the award; because many adjournments were given to enable the fifth arbitrator an opportunity of preparing the award and filing it into Court, and just before the award was filed the adjournments were every few days. However, there is no affidavit or other material before me which completely satisfies me that the parties did actually have notice. It may be that even though they knew, as they must have done, that the suit was being called on that particular day for a particular purpose, they might have expected that the rules would be complied with and that they would be given notice that if they wished to raise objections they must do so within a time allowed. Nothing could be done on ,the day on which the award was filed; for it was the day on which the Court closed for the summer vacation; and the matter was taken up two days after the reopening. I am therefore not at all sure that the failure to comply with the mandatory provisions of the Arbitration Act did not lead to an injustice in preventing the defendants from raising objections to the award.

5. The above is not the only defect pointed out by the petitioners. It appears that only three of the five arbitrators signed the award. That is an objection to the award rather than to the proceedings, although Spencer, J., in Mamidi Appayya v. Ydem Venkataswami (1901) 12 M.L.J. 77 : L.R. 29 IndAp 51 : I.L.R. 29 Cal. 167 (P.C.) interfered in revision on that ground, saying that there was a material irregularity on the face of the document. Section 14 says:

When the arbitrators... have made their award, they shall sign it....

6. When there are five arbitrators an award of the majority prevails; and so it may not be necessary that the dissenting arbitrators should sign an award with which they disagree. Nevertheless, all those who are of the opinion expressed in the award should sign it. We do not know in this case whether there were any dissentients; but it is very clear that the fifth arbitrator at any rate was not one of the dissentients; for it was he who filed the award into Court. Yet he did not sign it.

7. As the interests of justice require interference in revision, the decree of the lower Court is set aside. If the superficial defect in the award arising out of the fact that not all the arbitrators signed is one that can now be put right, that may be done. As the parties clearly have notice of the passing of the award, it is unnecessary now for the arbitrators to issue notice. When the records are received by the lower Court, it should give such notice to the parties as is required in Section 14(2) of the Act and dispose of the suit afresh. The costs of this petition will abide the result.


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