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Nalini Mohan Choudhuri Vs. Malda Co-operative Urban Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Trusts and Societies
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 7 of 1954
Judge
Reported inAIR1957Cal23,60CWN572
ActsBengal Co-operative Societies Act, 1940 - Sections 87, 133(3) and 134; ;Arbitration Act, 1940 - Section 30
AppellantNalini Mohan Choudhuri
RespondentMalda Co-operative Urban Bank Ltd.
Appellant AdvocateRabindra Nath Choudhari, Adv.
Respondent AdvocateBijan Behari Das Gupta, Adv.
DispositionAppeal allowed
Cases ReferredAfzal Hossain v. Kaigarev Co
Excerpt:
- .....for execution of an award obtained by the respondent against the appellant. the respondent is a co-operative bank. the appellant is a member of the bank. the respondent bank claimed certain moneys from the appellant member. the dispute between them was a dispute touching thebusiness of a co-operative society between a society and a member. the dispute was referred to arbitration and the respondent bank obtained an award in accordance with the co-operative societies act, then in force. it is common case that that award should be deemed to have been made and to have effect as if it was an award under the bengal co-operative societies act, 1940. when the bank sought to execute the award it was held by the executing court that the execution of the award was barred by limitation. this finding.....
Judgment:

Bachawat, J.

1. This is an appeal from a decision of the District Judge, Malda, affirming a decision of the Munsif, First Court, Malda. The appeal arises out of objections filed by the appellant in Money Execution Case No. 26 of 1951 which was started by the respondent for execution of an award obtained by the respondent against the appellant. The respondent is a co-operative bank. The appellant is a member of the bank. The respondent bank claimed certain moneys from the appellant member. The dispute between them was a dispute touching thebusiness of a co-operative society between a society and a member. The dispute was referred to arbitration and the respondent Bank obtained an award in accordance with the Co-operative Societies Act, then in force. It is common case that that award should be deemed to have been made and to have effect as if it was an award under the Bengal Co-operative Societies Act, 1940. When the bank sought to execute the award it was held by the executing Court that the execution of the award was barred by limitation. This finding was affirmed by this Court. The Bank thereupon made a fresh claim in respect of the identical debt and referred the claim for arbitration under Section 87, Bengal Co-operative Societies Act, 1940. On such reference a second award was made in favour of the Bank. The Bank then sought to execute the award. The appellant contended that the award is a nullity and it cannot be executed.

2. Under Section 134, Bengal Co-operative Societies Act, 1940, every award is final. Under Rule 127, Bengal Co-operative Societies Rules, 1942, the award is enforceable in the same manner as a decree and as if it were a decree.

3. A valid award made by an arbitrator on reference to arbitration under Section 86, Bengal Co-operative Societies Act 1940 operates to extinguish am merge the claims and disputes referred to arbitration and is final and binding upon the parties. On the malting of the award the arbitrator is functus official with regard to the disputes referred. The arbitration has no jurisdiction to entertain a second reference and to make a second award in respect of the identical disputes which were previously referred to arbitration and in respect of which he has made his award.

4. The second award made on a second reference to arbitration of the identical disputes is without jurisdiction and is a nullity. Under Section 133(3), Bengal Co-operative Societies Act, 1940, execution of the award may be resisted on the ground that it is without jurisdiction.

5. I find that S. R. Das Gupta and Mallick JJ. came to somewhat similar conclusions in Afzal Hossain v. Kaigarev Co-operative Society, A.P.A.D. No. 919 of 1949 (Cal) (A).

6. The consequence is that we must pronounce that the second award, obtained by the respondent bank is a nullity and that such an award cannot be enforced in execution. We must, therefore, hold that the judgment appealed from is erroneous and should he set aside.

7. We allow the appeal and set aside the order of the learned District Judge, and the order of the Munsif, First Court, Malda and allow the objections and declare that the award now sought to be executed by the respondent bank is a nullity and cannot be executed against the appellant.

8. The appellant is entitled to his costs throughout, the hearing fee in this appeal being assessed at two gold mohurs.

Mallick, J.

9. I agree.


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