Skip to content


J. Belli Gowder Vs. Joghi Gowder and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtChennai High Court
Decided On
Case NumberS.A. No. 765 of 1947
Judge
Reported inAIR1951Mad683; (1950)1MLJ639
ActsArbitration Act, 1940 - Sections 2 and 14 - Schedule - Article 14
AppellantJ. Belli Gowder
RespondentJoghi Gowder and anr.
Appellant AdvocateS. Viswanathan and ;R. Venkataraman, Advs.
Respondent AdvocateT. Srinivasa Raghavan and ;T.S. Narayanachari, Advs.
DispositionAppeal dismissed
Cases ReferredGauri Singh v. Ramlochan Singh
Excerpt:
arbitration - award on oral reference - sections 2 and 14 of arbitration act, 1940 - suit for specific performance of agreement to reconvey subject property to plaintiff - each side charging other party with default in performance - under panchayat's direction defendant was to convey subject property to plaintiff - plaintiff in turn was to withdraw criminal complaints filed against defendant - appellant contended that suit to enforce award on oral reference not maintainable as there was no written submission to panchayat - though there was informal decision given by panchayat but defendants adopted that decision and agreed to abide by it - defendant must convey subject properties to plaintiff. - - 1. this second appeal has beenargued clearly and concisely by mr......in the arbitration act of 1899 or in sec. 89 and schedule 2 of the c. p. c. of 1908 rendering an oral agreement to refer to arbitration invalid. a parole submission was held to be a legal submission to arbitration and an award passed on an oral reference was held to be valid and enforceable by a suit though not by the special procedure prescribed by schedule 2, c. p. c. or the arbitration act of 1899. (see 'ponnamma v. kotamma', : air1934bom79 the question is whether the arbitration act of 1940 has superseded the law as laid down in these cases. the answer is not free from difficulty in view of the uncertain nature of the statutory provisions. the preamble shows that the object of the act was to consolidate and amend the law relating to arbitration and it is a legitimate assumption to.....
Judgment:

Viswanatha Sastri, J.

1. This second appeal has beenargued clearly and concisely by Mr. S. Viswanathan for the applt. The suit was for specific performance of an agreement to convey land to the plaintiff alleged to have been entered into with the defendants. The dispute between the parties has a long history starting from 1927 when the properties now in suit along with others were conveyed by the plaintiff to the predecessors-in-title of the defts. Suffice it to say that under Ex. P. 2 dated-5-8-1937 and Ex. P. 3 dated 21-12-1938 there were agreements to reconvey the plaint A and B schedule lands to the plaintiff for Rs. 100 and Rs. 507-4-0 respectively within two years from the date of the agreements. The agreements for reconveyance were entered into by the father of defts 1 and 2 in respect of the 'A' schedule land and by the 1st defendant in respect of the 'B' schedule land. The father of defendants 1 and 2 died thereafter and the defts represent his interest. The pltf made certain payments to the defts amounting to Rs. 300 during the years 1939 to 1942 and alleged that the time for performance of the contracts, Exs. P. 2 and P. 3 had been extended by the defts. Disputes arose between the parties, each side charging the other with default in performance. There was a panchayat at which it was decided on 3-1-1944 that pltf should pay Rs. 550to the defts and take a conveyance of the lands. A sum of Rs. 450 was paid by the pltfto the defts on 3-1-1944 the balance having beenagreed to be payable at the time of the registration of the sale deed. The pltf's case is thathe also went into possession of the lands agreed to be conveyed to him. Disputes again arose between the parties and the pltf filed a complaint of criminal trespass against the defts which was registered as C. C. No. 201 of 1944. Again there was a panchayat whose decision Ex. P. 7 dated 4-3-1944 was to the effect that defts should convey the 'A' and 'B' schedule properties to the pltf on receipt of a further sum of Rs. 200 and that the criminal case filed by the pltf should be withdrawn. On 6-3-1944 both the parties signed a memorandum Ex. P. 1 compounding the criminal case and agreeing to the acquittal of the accused, the present defts 1 & 2. The pltf called upon the defts to execute the conveyance by his notice, Ex. P. 9, dated 23-2-1944, but the defts denied that there was a panchayat as alleged by the pltf or that there was any award of the panchayatdars or any subsequent arrangement obliging them to convey the lands in his favour. Thereupon the pltf filed the present suit for specific performance which has been decreed by the courts below.

2. The first point argued by the applt's learned advocate is that the suit is one to enforce an award given on oral reference or submission to arbitration and is not maintainable by reason of the provisions of the Arbitration Act, 1940. It is common ground that there was no written submission to the panchayatdars. Prior to the enactment of the Arbitration Act of 1940 it had been held by this and other H. Cts that there was nothing in the Arbitration Act of 1899 or in Sec. 89 and schedule 2 of the C. P. C. of 1908 rendering an oral agreement to refer to arbitration invalid. A parole submission was held to be a legal submission to arbitration and an award passed on an oral reference was held to be valid and enforceable by a suit though not by the special procedure prescribed by Schedule 2, C. P. C. or the Arbitration Act of 1899. (See 'Ponnamma v. Kotamma', : AIR1934Bom79 The question is whether the Arbitration Act of 1940 has superseded the law as laid down in these cases. The answer is not free from difficulty in view of the uncertain nature of the statutory provisions. The preamble shows that the object of the Act was to consolidate and amend the law relating to arbitration and it is a legitimate assumption to make that the Act is exhaustive of the law of arbitration in India. Oral submissions to arbitration and awards passed thereon are not so much as referred to, much less saved by the Act, even though the decisions referred to above must presumably have been within the knowledge of the draftsman and the legislature. At the same time there is no provision in the Act that an award on an oral submission would be invalid and unenforceable. Section 2(a) of the Act defines 'Arbitration agreement' as a written agreement to submit present or future differences to arbitration, but Section 2(b) defines an 'award' not as an award on an arbitration agreement, but as an arbitration award, an expression which prima facie would include an award on an oral submission: Section 47 of the Act enacts that the provisions of the Act apply 'to all arbitrations and to all proceedings thereunder'. Section 32 ofthe Act lays down that no suit shall lie on any ground whatever for a decision upon the existence, effect or validity of an arbitration agreement or award. Section 14(2) of the Act prescribes the procedure for filing an award in court & it is made a condition of the exercise of the Ct's power under the section that an 'Arbitration agreement' as denned in Section 2(a) must exist. The question whether it was intended merely to make awards on oral submissions unenforceable under the procedure of the Arbitration Act or to make them invalid and unenforceable altogether, would depend to a large extent on whether the Act is exhaustive of the law of arbitration. I am inclined to think that it is. I therefore hold that an award passed on oral submission can neither be filed and made a rule of Ct under the Act, nor enforced apart from the Act. The same opinion has been expressed in 'Gauri Singh v. Ramlochan Singh', : AIR1948Pat430

3. In para 7 of the plaint it was alleged that the parties to the suit had agreed to act according to the award of the arbitrators, in other words the parties had adopted the award as their own consensual agreement and acted upon it. They filed a memorandum, Ex. P. 1 dated 6-3-1944 stating that in pursuance of the decision of the villagers they were compounding the criminal case 201 of 1944 and that the accused (defts 1 & 2) might be acquitted. The criminal case could not have been compounded except by the agreement of parties & the award by itself could not have resulted in a composition of the offence. The offence was compounded two days after the award. There is some evidence, though meagre, to show that the parties accepted the award and agreed to abide by its terms and acted in pursuance of such agreement. There was an agreement for sufficient consideration to withdraw the criminal complaint and also to convey the property. Though the case has proceeded on the basis that there was a reference to arbitration and an award, a scrutiny of the evidence discloses that there was only a self-constituted panchayat of the villagers who claimed to exercise some sort of disciplinary jurisdiction over the inhabitants of the village and a decision was given by the body of villagers to the effect that the disputes between the parties should be settled on the lines laid down by them. Indeed the assertion of caste or village autonomy was carried to such an extent as to impose a fine on the plaintiff for venturing to go to court abandoning the caste forum. It is difficult to say that there was a reference to arbitration in any legal sense and all that appears is there was an informal decision given by the villagers who claimed exclusive jurisdiction in themselves to decide disputes arising between the members of the community. The parties to the suit accepted the decision as their own and to some extent carried it out. In these circumstances the defendants having adopted the decision of the village panchayat and agreed to carry out its terms, must convey the properties to the plaintiff.

4. The result is that the decree of the Cts below is correct and this second appeal should be dismissed with costs.

5. No leave.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //