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Sunil Mukherjee Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberAppeal No. 290 of 1974 and Award Matter No. 239 of 1972
Judge
Reported inAIR1978Cal37
ActsArbitration Act, 1940 - Sections 8, 30, 39 and 39(1); ;Limitation Act, 1963 - Schedule - Article 119
AppellantSunil Mukherjee
RespondentUnion of India (Uoi)
Advocates:Jayanta Mitra, Adv.
DispositionAppeal allowed
Cases ReferredUnion of India v. Shri Om Prakash
Excerpt:
- sen, j. 1. this is an appeal against the judgment and order passed by salil k. roy chowdhury, j. on the 15th nov. 1973. by his order the learned judge dismissed, for reasons recorded in the judgment, the application made, by the appellant for setting aside an award dated the 28th june, 1971 and also for a declaration that the order dated the 21st feb. 1961 is invalid, without jurisdiction and of no effect.2. the facts of the case have been fully and correctly set out in the judgment of the learned trial judge. the facts material for the purpose of the appeal may be briefly stated. the appellant is a building contractor and entered into an agreement dated the 11th april, 1962 with the union of india for various construction works in and/or of the railway station building at durgapur. the.....
Judgment:

Sen, J.

1. This is an appeal against the judgment and order passed by Salil K. Roy Chowdhury, J. on the 15th Nov. 1973. By his order the learned Judge dismissed, for reasons recorded in the judgment, the application made, by the appellant for setting aside an award dated the 28th June, 1971 and also for a declaration that the order dated the 21st Feb. 1961 is invalid, without jurisdiction and of no effect.

2. The facts of the case have been fully and correctly set out in the judgment of the learned trial Judge. The facts material for the purpose of the appeal may be briefly stated. The appellant is a building contractor and entered into an agreement dated the 11th April, 1962 with the Union of India for various construction works in and/or of the railway station building at Durgapur. The said agreement contains an arbitration clause.

The relevant portion of the said clause reads as follows:

'Clause 63 (3) (a) Arbitration. Matters in question, dispute or difference to be arbitrated upon shall be referred for decision to.....................

(ii) Two arbitrators, who shall be Gazetted Railway Officers of equal status to be appointed in the manner laid down in Clause (3) (b) for all claims of Rs. 50,000/-and above, end for all clainig irrespective of the amount or value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole judge to decide whether the issues are of a complicated nature or not. In the event of the two Arbitrators being divided in their opinions the matter under dispute will be referred to an Umpire to be appointed in the manner laid down in Clause (3) (b) for his decision. Clause 63 (3) (b): For the purpose of appointing two arbitrators as referred to in Sub-Clause (a) (ii) above, the Railway will send a panel of more than three names of officers of the appropriate status of different Departments of the Railway to the contractors, who will be asked to suggest a panel of three names out of the list so sent by the Railway. The General Manager will appoint one arbitrator out of this panel es the contractor's nominee and then appoint a second arbitrator of equal status as the Railway's nominee either from the panel or from outside the panel, ensuring that one of the two arbitrators so nominated is invariably from the Accounts Department. Before entering into reference the two Arbitrators shall nominate an Umpire to whom the case will be referred in the event of any difference between the two Arbitrators.'

3. It appears that disputes arose between the parties. The appellant made various claims against the Union n respect of works done and the said claims were disputed by the Union. The appellant had called upon the Union of India to have the said dispute adjudicated upon by arbitration in terms of the arbitration agreement and had asked for appointment of arbitrators in terms of the agreement between the parties. The appellant ultimately made an application on the 29th Nov. 1965 to this Court under Section 8 of the Arbitration Act for the appointment of arbitrators. On the said application an order was passed by Mallick J. on the 21st Feb. 1966 and the material part of the said order reads as follows:

'It is ordered that all matter in difference between the parties hereto including the question of the costs and of the reference hereby directed be referred to the arbitration of Mr. K. Ramani Office on Special Duty, South Eastern Railway, Garden Reach and Mr. K. C. Bose, Deputy Financial Adviser, Eastern Railway who are hereby appointed Joint Arbitrators under Section 8 of the Arbitration Act, 1940 read with Clause 63 of the Eastern Railway Engineering Department General Condition of Contract in the said petition mentioned. And it is further, ordered that the said arbitrators do make their award in writing and submit the same to this Court together with all proceedings had, deposition recorded and exhibits filed before them within four month from the date of service on them of an office copy of this order. And it is further ordered that in case of difference of opinion between the said arbitrators the matter involving such difference be referred to the decision of an umpire to be nominated by the said arbitrators before they take up such, reference who, in the event of a reference being made to him shall make his award in writing and shall submit the same in the like manner to this Court within four months from the date of such reference to him. And it is further ordered that the said arbitrators or the umpire as the case may be, be at liberty to examine the parties and their witness upon oath or solemn affirmation which they are hereby empowered to administer. And it is further ordered that the said arbitrators or the umpire as the case may be shall have such powers as are vested in an arbitrator under the provisions of the Arbitration Act, 1940. And it is further ordered that the said arbitrators shall enter upon and proceed with the reference on the copy of minutes of this order signed by the officer of this Court being shown to them. And it is further ordered that the costs of and incidental to this application be costs in the arbitration proceedings herein.'

4. It may be noted that the validity of this order has been challenged in this proceeding. After the said order had been passed, joint arbitrators appointed by the said order entered upon the reference and the parties filed their statements and counter-statements Before them. In or about December, 1966 the appellant made an application before the Court, inter alia, for removal of the said arbitrators and for revocation of the arbitration agreement. The said application, however, was subsequently withdrawn on the 7th May, 1968. It has been alleged that the said application was withdrawn by the appellant as he had been assured that his claim would be settled departmentally. On the 6th Jan. 1970 a letter was addressed by the Solicitor for the appellant to the Solicitor of the Central Government at Calcutta and in this letter the fact of withdrawal of the application by the appellant had been mentioned. In this letter it was also alleged that the joint arbitrators could not act as one of the arbitrators had then become the Chief Engineer and in this letter the railway administration was asked to decide the claim of the appellant departmentally without going into the formalities of fresh arbitration proceedings. This letter and the reply which was sent by the Solicitor to the Central Government on the 8th May, 1970 have both been set out by the learned trial Judge in his judgment. From the reply it appears that the Union had no objection to an arbitrator being appointed through Court in terms of the agreement but the Union was not agreeable to have the claim of the appellant decided by the railways departmentally. Various applications were thereafter made before the Court for extension of time to make the award by the arbitrators and the last order was passed by Salil K. Roy Chowdhury J. extending the time to make the award till the 30th June, 1971. The said award was duly made and published within the extended period. It has been stated in the petition that the said award was filed in his Court on the 22nd June, 1972. The claim of the appellant in dispute is said to be over Rs. 17 lakhs and under the award the arbitrators awarded the appellant a sum of Rs. 37,230/-. The validity of the said award has been questioned by the appellant in this proceeding. The grounds on which the said award has been impeached are set out in para 42 of the petition and the main prayers of the appellant in the petition are that 'the said purported Award dated 28th June 1971 be set aside and/or be declared null and void' and 'that it be declared that the said order dated 21st Feb. 1961 is invalid without jurisdiction and of no effect.'

5. Two principal contentions were raised on behalf of the appellant before the learned trial Judge. The first contention was that the arbitrators had no (jurisdiction to enter into the reference and to make the award as they were not appointed in terms of the arbitration agreement inasmuch as the said joint arbitrators were not of equal status. It may be noted that it was conceded on behalf of the railways that the arbitrators appointed were not of equal status.

6. The other contention raised before the learned trial Judge was that the arbitrators were biassed against the appellant. Though various other grounds were taken in the petition, it appears that these were the two principal grounds which were urged before the learned trial Judge. The learned trial Judge rejected both these contentions and dismissed the said application of the appellant. Dealing with the contention that the arbitrators had no jurisdiction to make the award the learned trial Judge has held in his judgment:

'Carefully considering the respective contentions I am of the view that the petitioner's case has no substance and should be dismissed. The first ground which Mr. Chatterjee strenuously argued 'was that the arbitrators have no jurisdiction as they were not qualified and lacked capacity in terms of the arbitration clause not being of equal status and the fact being admitted it must be held that the arbitrators have no jurisdiction, to make the award. It is true that the Court before making the order dated the 21st of Feb. 1966 did require parties to comply with the terms of the arbitration clause in nominating their respective arbitrators and supply the names to the Court but that did not keep the contract in force as if there is no order of the Court. In my view, by the order made by the Court under Section 8 of Arbitration Act, 1940, the appointment of the arbitrators must be said to be by an order of the Court, as if the said appointment was by the consent of the parties. A legal fiction as to the consent of the parties should be imported in the order of the Court regarding the appointment of the arbitrators. There is no question of the order being by consent. There is nothing in the said order to show that the order was a consent order. However, the order was given effect to and is binding on the parties.

Therefore, it cannot be now said that the arbitrators not being of equal status in terms of the arbitration agreement lacked capacity to enter into the reference and the award to be without jurisdiction. The said appointment was made by Court and by legal fiction the parties are deemed to have consented to the said appointment under the statute and no question of lack of capacity in the arbitrators can be raised by the petitioner so long the order of the Court is operative. In my view, the analogy drawn by Mr. Chatterjee with a consent order or decree which can be set aside on any grounds as that of a contract, cannot be applied in this case. Neither the petitioner has taken any step to set aside the said order on any ground whatsoever which has been given effect to and acted upon by the parties for the last 6 or 7 years. The petitioner is estopped from raising any such question of lack of jurisdiction. In my view, the principle of the decision cited by Mr. Banerjee being K. P. Mandal's case in : AIR1958Cal415 also applies to this case.'

The learned Judge also held that no case of bias was established.

7. In the appeal before us the said two contentions have been raised.

8-9. Mr. Jayanta Mitra, learned counsel appearing on behalf of the appellant has, however, stated before us that he is not advancing any argument on the second contention, namely, that the Arbitrators were biassed though he is not abandoning the said contention. On this question no arguments were advanced. Mr. Mitra has argued that the Award in the instant case must be held to be nullity, as the Arbitrators had no jurisdiction to make the Award, Apart from the arguments which were advanced before the learned trial Judge that the joint Arbitrators had no jurisdiction to make the Award as the said joint Arbitrators were not of equal status and were therefore not competent to adjudicate upon the disputes, Mr. Mitra in support of his contention that the Award is a nullity has advanced the following further arguments :--

The Award must be held to be nullity as the Arbitrators had no jurisdiction to make the Award because the order of Mallik J. dated the 21st of Feb. 1966 referring the disputes to arbitration and appointing the Joint Arbitrators is itself without jurisdiction and is therefore null and void. He has argued that the order of Mallik J. dated the 21st of Feb. 1966 is without jurisdiction, as the said order which was made under Section 8 of the Arbitration Act could not be made under the said Section because the said Section had no application. It is the argument of Mr. Mitra that Sec. 8 of the Arbitration Act had no application in the facts and circumstances of this case and to the arbitration agreement between the parties. In support of this argument that Sec. 8 has no application Mr. Mitra has drawn our attention to Section 8 of the Arbitration Act and to the arbitration agreement between the parties and he has relied on the following decisions:--

(1) Ram Chandra Ram Nag Ram Rice and Oil Mills Ltd. v. Howrah Oil Mills Ltd., : AIR1958Cal620 , (2) Union of India v. Gorakh Mohan Das, : AIR1964All477 . (3) Union of India v. S. V. Krishna Rao, : AIR1970MP49 , (4) National Enterprises Ltd. v. Racal Communications Ltd., 1974 (3) All ER 1010. It is the argument of Mr. Mitra that as Section 8 has no application to the facts and circumstances of this case and could not be invoked in view of the nature of the Arbitration Agreement between the parties, the order passed by the learned trial Judge under Section 8 of the Arbitration Act is incompetent and is without jurisdiction. Mr. Mitra has further argued that the order of Mallik J. dated the 21st of Feb. 1966 is clearly erroneous and without jurisdiction, as by the said order made under Section 8 of the Arbitration Act the learned Judge ordered and directed that the matter in difference between the parties would be referred to the Arbitration of Mr. K. Ramani and Mr. K. C. Bose who by the said order were appointed Joint Arbitrators by the learned Judge. It is his contention that no reference of the disputes can be made to Arbitrators under Section 8 of the Arbitration Act and the order making any such reference and also appointing the Arbitrators after making the reference is clearly without jurisdiction and is therefore void. In support of this contention Mr. Mitra has relied on the decision of the Supreme Court in the case of Union of India v. Om Prakash, reported in : [1976]3SCR998 . Mr. Mitra has fairly stated before Us that these arguments were not advanced before the learned trial Judge and in the grounds of appeal no such specific grounds have also been taken. He has, however, submitted that these questions are pure questions of law and no investigation of any fact is necessary.

He has also submitted that there are sufficient indications in the petition and also in the prayers and also in the grounds of appeal. He submits that he is, therefore, entitled to argue these questions. Mr. Mitra has contended that as the order of Mallik J. dated the 21st of Feb. 1966 is without jurisdiction and therefore void, the Arbitrators appointed by the said order acquired no jurisdiction to enter upon the reference or to proceed with the reference or to make the said Award and the impugned Award made by the Arbitrators without jurisdiction must therefore be held to be a nullity. In support of his contention that if an order is made by the Court without jurisdiction the order becomes a nullity and is void, Mr. Mitra has relied on the decision of the Supreme Court in the case of Official Trustee, West Bengal v. Sachindra Nath Chatterjee, : [1969]3SCR92 . Mr. Mitra has also relied on the decision of the Supreme Court in the case of Shri M.L. Sethi v. R. P. Kapur, : [1973]1SCR697 .

10. Mr. Banerjee appearing on behalf of the respondent has submitted that the order appointing the Joint Arbitrators has been properly made under Section 8 of the Arbitration Act. He has, fairly stated that the order of the learned trial Judge directing a reference of the disputes to the arbitration of the Arbitrators named therein while passing the said order appointing the Joint Arbitrators under Section 8 had been erroneously made. He has however, contended that in the interest of justice the Court has inherent jurisdiction to ignore or set aside that part of the order and to uphold the order of the learned trial Judge in so far as the said order purports to appoint the Joint Arbitrators. In support of his contention that the Court in the interest of justice in such cases has such inherent power or jurisdiction, reference has been made to the decision of the Privy Council in the case of Raja Debi Bakhsh Singh v. Habib Shah, (1913) 40, Ind App 151 (PC). It was further submitted that Mallik J. had not in fact made an order of reference and in support of the submission reliance was sought to be placed on the minutes of this Court.

11. Mr. Banerjee has further argued that the appointment of Joint Arbitrators has been properly and validly made by the learned Judge under Section 8 of the Arbitration Act which, according to Mr. Banerjee, applies in the facts and circumstances of this case to the arbitration agreement between the parties. In support of this contention that Section 8 of the Arbitration Act is properly applicable Mr. Banerjee has relied on the following decisions:--

(1) Surendranath Paul v. Union of India, : AIR1965Cal183 , (2) Om Prakash v. Union of India, : AIR1963All242 , (3) Union of India v. D. P. Singh, : AIR1961Pat228 , Mr. Banerjee has next argued that the application made by the appellant in the instant case is barred by limitation and the same cannot, therefore, be entertained. Mr. Banerjee has further argued that the appellant should not be permitted to urge the new points which the appellant has chosen to urge before this Court, as the questions involved therein are not pure questions of law and the said questions require investigation into various facts.

12. Before we proceed to deal with the respective contentions of the parties, it wilt be convenient to set out Section 8 of the Arbitration Act which reads as follows:

'8(1) In any of the following cases-

(a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appointments; or

(b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or

(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him;

any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in tha appointment or appointments or in supplying the vacancy.

(2) If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or umpire, as the ease may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties.

Explanation.-- The fact that an arbitrator or umpire, after request by either party to enter on and poceed with the reference does not within one month comply with the request may constitute a neglect or refusal to act within the meaning of the section.'

13. A plain reading of the section makes it clear that this section is not intended to apply and does not apply to each end every arbitration agreement. Had this section been intended to apply to each and every arbitration agreement, Section 9 of the Act would have been wholly unnecessary. This section applies only in a case where the arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties. Consent of the parties to the appointment of the arbitrators is the basic requirement of the section. Whether in an arbitration agreement the arbitrator or the arbitrators are so appointed with the consent of the parties or not will necessarily depend on the facts and circumstances of the case and on the arbitration agreement between the parties. If on a proper construction of the arbitration agreement it becomes evident that the consent of the parties is not necessary for the appointment of the arbitrator or the arbitrators, the basic requirement of the section will not be satisfied and in such a case Section 8 of the Arbitration Act cannot be attracted. This interpretation of the section is quite clear and is also supported by the authorities which have been cited before us. In the case of Ham Chandra Ram Nag Ram Rice and Oil Mills Ltd. v. Howrah Oil Mills Ltd,. : AIR1958Cal620 , a Division Bench of this Court observed at p. 623 :

'That section applies where an arbitration agreement provides that the reference 'shall be to one or more arbitrators to be appointed by consent of the parties.' In the case before us, however, the arbitration clause provides that the arbitration shall be by two arbitrators, one to be nominated by the buyer and the other to be nominated by the seller. In this case, there is no question of one or more arbitrators being appointed by the consent of all the parties. Consequently, Section 8 can have no possible application to this case.'

This view is also expressed in the other decision which has been cited from the Bar in this respect. The question that requires consideration, however, is whether on a true construction of the arbitration agreement between the parties the appointment of the arbitrator or the arbitrators is to be made with the consent of the parties. In the case of Surendranath Paul v. Union of India, : AIR1965Cal183 , on which particular reliance has been placed by Mr. Banerjee, the arbitration agreement was couched in an entirely different language and on a construction of the arbitration agreement in that particular case the Court was of the opinion that the appointment of the arbitrator in that particular case was with the consent of the parties. The said decision, however, is of no particular assistance in construing the agreement in question. We have earlier set out the entire arbitration agreement. In our opinion, it cannot be said on a true construction of the arbitration agreement between the parties that the arbitrators were to be appointed with the consent of the parties. The arbitration agreement, in the instant case, makes it sufficiently clear that the appointment of the arbitrators is not to be made with the consent of the parties. The contractor is to suggest three names out of a panel of more than three names to be sent by the railways to the contractor and out of the said panel of three names to be suggested by the contractor, the General Manager will appoint an arbitrator who will be the contractor's nominee. The General Manager will appoint the second Arbitrator of equal status as the nominee of the Railways and in the matter of appointment of this Arbitrator there is no question of consent of any kind of the claimant. The appointment may be made by the General Manager from this panel or from outside the panel. It is, therefore, clear that the arbitration agreement does not contemplate appointment of two Arbitrators by the consent of the parties. It may be noted that a similar agreement came up for consideration before the Allahabad High Court in the case of Union of India v. Gorakh Mohan Das, : AIR1964All477 where the Allahabad High Court held that Section 8 of the Arbitration Act had no application to the said Arbitration Agreement. The identical Arbitration Agreement came up for consideration before the Madhya Pradesh High Court in the case of Union of India v. S.V. Krishna Rao, : AIR1970MP49 . Madhya Pradesh High Court held at page 55 -

'In Union of India v. Gorakh Mohan, : AIR1964All477 , it was held that where the contract between the Railway and the contractor provided for the appointment of two arbitrators, one to be selected by the Railway as the contractor's nominee out of a panel of three names to be suggested by the Contractor, and the other to be appointed by the Railway, in which appointment the contractor had no voice at all, it cannot be said that the arbitrators are to be appointed by consent of parties so as to attract the applicability of Section 8.''

We are, therefore, of the opinion that the application under Section 8 of the Arbitration Act could not be entertained, as Section 8 of the Act had no application and the said section could confer no jurisidiction on the Court to appoint the Arbitrators in the instant case. In our opinion, the Court was not competent to pass the said order under Section 8 of the Arbitration Act and the said order under Section 8 of the Arbitration Act appointing the Arbitrators which had no application at all, is, therefore, without any jurisdiction. No other section could be pointed out to us under which the Court had the power or jurisdiction to appoint the Arbitrators. Section 9 has also no application in the intsant case. As far as we have been able to find out there does not appear to be any other section which confers power and jurisdiction on the Court to appoint Arbitrators in such a case. Mr. Banerjee has argued in this connection that the Court has an inherent power to appoint an Arbitrator. It was his argument that if S. 8 could not be applied then the appointment should be held to have been made under the inherent jurisdiction which the Court possesses in such a case. Apart from the question that in the instant case the Court has proceeded to make the order under Section 8 of the Arbitration Act, we cannot persuade ourselves to hold that the Court enjoys any such inherent jurisdiction in the matter of appointment of Arbitrators. The powers of the Court in the matter of appointment of arbitrators are regulated by the Statute. This view, it appears, 'was also expressed by Chief Justice Chakravartti in his judgment in the case of Bharat Construction Co. Ltd. v. Union of India, : AIR1954Cal606 . The learned Chief Justice has observed at p. 611:

'It is now well settled that the Court has no inherent or absolute power to appoint arbitrators and that its powers are only those which are expressly specified in the Act.'

We have already set out the order of Mallik J. It is quite clear from the said order as perfected that by this order which the learned Judge made under Section 8 of the Arbitration Act read with Clause 63 of the Eastern Railway Engineering Department General Conditions of Contract, all matters in difference between the parties were also referred to the arbitration of two Arbitrators who were appointed by the said order. This was clearly beyond the jurisdiction of the learned Judge. This question, in our view, is concluded by the decision of the Supreme Court in the case of Union of India v. Shri Om Prakash : [1976]3SCR998 . In that view of the matter we must hold that the order of Mallick J. dated the 21st Feb. 1966 is without jurisdiction.

14. It is no doubt true that the appellant himself had made the application under Section 8 of the Arbitration Act on Which the said order was passed. It is equally true that the appellant had participated in the arbitration proceedings before the Arbitrators, appointed by the learned Judge by the said order, and extension of time had been granted to enable the Arbitrators to make their Award, These acts on the part of the appellant end his conduct do not prevent him from raising these questions. The question involved in the instant case is one of jurisdiction of the Court and is not a question of mere irregularity. If the Court lacks jurisdiction to pass the order, the order becomes a nullity. The conduct of the appellant cannot cure the defect of jurisdiction and cannot confer jurisdiction on the Court where the Court does not possess such jurisdiction.

15. It is well settled that if the Court passess any order without jurisdiction the order is a nullity end is void. As the order in the instant case of Mallick J. appointing the Arbitrators was passed without jurisdiction, the said order is void and is a nullity and the Arbitrators appointed by the said order, therefore, acquire no jurisdiction to adjudicate upon the disputes. The Arbitrators, therefore, clearly lacked jurisdiction to enter upon the reference and to proceed with the same and to make any Award. The Award made by the Arbitrators must necesserily be held to be one without jurisdiction and a nullity.

16. We are unable to accept the contention of Mr. Banerjee that the appellant should not be allowed to raise these contentions in the appeal. As Mr. Mitra has fairly conceded, these arguments were not advanced in the Court below. It cannot, however, be said in our opinion that no such case had been made in the petition. The validity of the order passed by Mallick J. on the 21st of Feb. 1966 has been specifically challenged and there is a specific prayer that it should be declared that the said order is without jurisdiction and of no effect. The validity of the Award has also been questioned on the ground that the Arbitrators had no jurisdiction to make the Award. Arguments before the learned trial Judge might not have been addressed in this particular way. But these points were there. In any event, these questions are pure questions of law. No investigation of any fact is necessary. The question relates to construction of the order passed by Mallick J., construction of the arbitration agreement and the construction of the provisions of the Arbitration Act. No investigation of any fact is necessary and the relevant materials are there. We are, therefore, of the opinion that the appellant is competent to urge these points before us in this appeal. We are also unable to accept the contention of Mr. Banerjee that Mallick J. did not pass any order directing a reference of the disputes to arbitration. For the purpose of considering this question we have got to go by the order which had been finally drawn up and filed. The order has been settled following the practice and procedure in this Court on notice to the Solicitors of both the parties. The Solicitor for the respondent Union of India clearly knew what the order, as finally drawn up and settled was. No steps were even taken for having the order corrected. It is also to be noted that in para 21 of the petition the order of Justice Mallick has been set out. In the Affidavit-in-opposition that had been filed the correctness of the said allegation is not denied. In these circumstances, we are of the opinion that it will not be proper for us to look into the minutes of the order passed by the learned trial Judge and to come to any conclusion on the basis of the minutes.

17. We are also unable to accept the submission of Mr. Banerjee that proceeding on the basis that the order of Mallick J. as drawn up and settled represents the correct order, we should in the exercise of our inherent jurisdiction ignore that part of the order of Mallick J. which directs the reference and we should hold that the said order is a valid and a good order under Section 8 of the Arbitration Act in so far as the appointment of the arbitrators are concerned. We have already stated our reasons as to why the order of Mallick J. cannot be said to be a competent order under Section 8 of the Arbitration Act. We are unable to accept the submission of Mr. Banerjee that even if we proceed on the basis of the order as drawn up and settled, we should still in exercise of our inherent jurisdiction proceed to ignore that part of the order of Mallick J. by which he has directed a reference of the disputes to arbitration and we should only accept and act on the other part of the order by which he has appointed the arbitrators under Section 8 of the Arbitration Act. The decision of the Privy Council in (1913) 40 Ind App 151 is no authority for any such proposition. The said decision which was relied on by Mr. Banerjee has no bearing on the question involved in the present case. We have already held that even the appointment of the arbitrators under Section 8 of the Act in the instant case is not competent and; the Court does not enjoy any inherent power in the matter of appointment of arbitrators. The Court is concerned only with the order under appeal.

18. The only other plea raised by Mr. Banerjee was that the present application is barred by limitation. This plea of Mr. Banerjee has, in our view, no substance. In the affidavit which was filed on behalf of the respondent in opposition to the present petition a vague averment was made that the application was barred by limitation without giving any material facts. It appears from the judgment that this question of limitation was not urged before the learned trial Judge. The learned trial Judge has noted in his judgment the contentions which were raised before him. As it appears that this ground was not urged before the learned trial Judge and as the material facts on which this ground can be urged are not there, we are of the opinion that it would not be proper for us to allow Mr. Banerjee to urge this question at this stage. On the other hand, the materials on record clearly go to indicate that the application was made within time. In para 40 of the petition it has been stated that the award was filed on the 22nd June, 1972. This statement made in the petition is not denied in the affidavit which has been filed on behalf of the respondent. The present petition was affirmed on the 20th July, 1972 and was moved and noted as made on the 21st July, 1972 within the prescribed period of 30 days.

19. This appeal, therefore, succeeds, The appeal is allowed. There will be an order in terms of prayers (a) and (b) of the petition. The appellant is entitled to the costs of the appeal and also of proceeding before the learned trial Judge.

20. Interim order appointing the Solicitors for the parties as receivers to take possession of certain papers and documents for the purpose of production thereof before the Department for the purpose of settlement of disputes between the parties is hereby vacated. The said Solicitors who were appointed receivers are hereby directed to return the said papers to the party or parties from whom they obtained possession of the documents and they will stand discharged upon making over the said papers and documents to the party or parties. There is no question of filing any accounts by the Receivers.

Basak, J.

I agree.


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