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Baijnath Vs. Ahmed Musaji Saleji - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata
Decided On
Judge
Reported in(1913)ILR40Cal219,18Ind.Cas.978
AppellantBaijnath
RespondentAhmed Musaji Saleji
Cases ReferredTribhuwandas Kalliandas Gajjar v. Jivanchand
Excerpt:
arbitration - bengal chamber of commerce, arbitration by--award, filing of--indian arbitration act (ix of 1899), sections 11, 13, 14 and 15--rules under the indian arbitration act, 1899--submission--bought and sold notes--stamp-duty--form of order--costs. - .....done, not on the application of the parties, bat at the instance of the arbitrator; and when the award is filed, the result is, not that there is a suit in which a decree has been passed, but that there is an award which shall be enforceable as though it were a decree. this topic is very clearly discussed in tribhuwandas kalliandas gajjar v. jivanchand (1910) i.l.r. 35 bom. 196 where reference is made to in re a bankruptcy notice [1907] 1 k. b. 478. an english decision on a cognate section. in the circumstances it appears to me that we mast adhere to the act; and what we must now do is to direct, as the petitioner prayed, that the award be filed. the filing must be as of the date when' it should have been filed, that is the 27th of august 1908 but as this order is made only today, that.....
Judgment:

Lawrence H. Jenkins, K.C.I.E., C.J.

1. The rules appear to be in conflict with the provisions of the Act, and to that extent are inoperative.

2. If the Court holds the rules are bad, and that an order should be made for filing the awards, the awards should be taken to be filed as of date, so that we may have an opportunity of raising our objections to the awards.

Jenkins, C.J.

3. This appeal arises out of an application preferred as far back as the 11th of July 1908, whereby it was prayed that an order should be made that certain awards be filed in Court under the provisions of the Indian Arbitration Act of 1899. The respondent formulated his objections in an affidavit, but the principal ground on which the application failed before the learned Judge by whom it was heard in the first instance was that the whole proceedings in arbitration were ineffectual, because the submission was insufficiently stamped. We cannot accept that view. The parties have stamped their document in accordance with the practice which has been recognised by this Court for a long series of years, and we are not prepared to question that practice on the materials at present before us.

4. But, apart from that, there were certain other grounds on which the learned Judge thought there was a difficulty in the petitioner's way, and in particular he considered that the award was out of time and that there was a difficulty as to who were the members of the firm against whom the award went.

5. A good deal, of difficulty in this case has been occasioned by the rules of Court framed under the Arbitration Act. But it appears to me that so far as they do create a difficulty, they are not in accordance with the Act. Effect, therefore, cannot be given to them. The Arbitration Act provides that the High Court may make rules consistent with the Act, and in particular as to the filing of awards and all proceedings consequent thereon or incidental thereto, and all proceedings in Court under the Act. How, the Act itself provides in Section 11 that 'when the arbitrators or umpire have made their award, they shall sign it, and shall give notice to the parties of the making and signing thereof and of the amount of the fees and charges payable to the arbitrators or umpire in respect of the arbitration and award.' The second clause of the section provides that 'the arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award, or a signed copy of it, to be riled in the Court; and notice of the riling shall be given to the parties by the arbitrators or umpire.' That clause appears to me to be clear. Then it is provided in Section 13 that the Court may remit the award, and in Section 14 that ' where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set aside the award.' Section 15 provides that an award oh a submission, on being filed in the Court in accordance with the foregoing provisions, shall, subject to certain exceptions, be enforceable as if it were a decree of the Court The filing therefore is an act to be done, not on the application of the parties, bat at the instance of the arbitrator; and when the award is filed, the result is, not that there is a suit in which a decree has been passed, but that there is an award which shall be enforceable as though it were a decree. This topic is very clearly discussed in Tribhuwandas Kalliandas Gajjar v. Jivanchand (1910) I.L.R. 35 Bom. 196 where reference is made to In re a Bankruptcy Notice [1907] 1 K. B. 478. an English decision on a cognate section. In the circumstances it appears to me that we mast adhere to the Act; and what we must now do is to direct, as the petitioner prayed, that the award be filed. The filing must be as of the date when' it should have been filed, that is the 27th of August 1908 but as this order is made only today, that fact must be borne in mind if the respondents consider that they have any objection which they can urge in accordance with, the terms of the Act. We must, therefore, set aside Mr. Justice 'Fletcher's order, and direct the award to be filed.

6. Costs throughout will be added to the sum awarded, so that the enforcement of their payment will depend, upon the power to enforce payment under the award.

Woodroffe, J.

7. I agree.


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