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K. Munisami Chetti Vs. A. Subbaroya Achari - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in95Ind.Cas.442
AppellantK. Munisami Chetti
RespondentA. Subbaroya Achari
Excerpt:
.....procedure code (act v of 1908), schedule ii, rule 12--small cause judge, order of, modifying award--application to full bench. - securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section..........is that no application to the full bench lay against the order of the trial judge inasmuch as the decree passed by him was on an award. the matter in dispute between the parties was referred to arbitration and the arbitrator passed an award. when it came up before the judge who remitted the case to the arbitrator, he held that the arbitrator did not consider certain facts and passed a decree modifying the award. against his order an application to the full bench was made and the full bench held that the award was wrong, and set aside his order and directed a decree to be passed in terms of the award. mr. srinivasagopalachariar's contention is that the decree of the trial judge was passed on the award and, therefore, under section 38 no application to the full bench lay. if the decree.....
Judgment:

1. The only point urged in this revision petition is that no application to the Full Bench lay against the Order of the Trial Judge inasmuch as the decree passed by him was on an award. The matter in dispute between the parties was referred to arbitration and the arbitrator passed an award. When it came up before the Judge who remitted the case to the arbitrator, he held that the arbitrator did not consider certain facts and passed a decree modifying the award. Against his order an application to the Full Bench was made and the Full Bench held that the award was wrong, and set aside his order and directed a decree to be passed in terms of the award. Mr. Srinivasagopalachariar's contention is that the decree of the Trial Judge was passed on the award and, therefore, under Section 38 no application to the Full Bench lay. If the decree was on the award or in the terms of the award, no doubt his contention would be right, but the learned Trial Judge modified the award by going into the merits of the case and holding that the arbitrator did not consider certain facts and did not take into account certain payments made by the defendant. This we consider is a modification of the award and against such a modification an appeal lies in ordinary cases; in other words, a degree of this kind is not one which would come under Section 522 of the old Code or Rule 16 of Sch. II of the present Code. If the Judge thought that the award was not in accordance with the reference to arbitration, or not in accordance with the directions given by him he should have remitted the award udder Rule 14 for re-consideration. Under Rule 12 the Court may modify the award where it appears that the award is upon a matter not referred to arbitration, or where the award is imperfect, or where the award contains a clerical mistake or error. In this case two matters were referred to arbitration, one as regards dealings between the parties and the other as regards the partnership transactions. The arbitrator after taking evidence came to the conclusion that the claim in respect of the dealings was true and disallowed the claim as regards the partnership transactions. It cannot be said that the arbitrator acted outside the scope of the arbitration or omitted to consider any matter referred to him for arbitration. In these circumstances, we think the order of the Trial Judge was one made under Rule 12 of Sch. II and, therefore, an application to the Full Bench did lie under Section 38 of the Presidency Small Cause Courts Act. The Civil Revision Petition fails and is dismissed with costs.


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