Skip to content


Bejoy K. Swaika Vs. Shyam Sunder Swaika and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberSuit No. 191 of 1972
Judge
Reported inAIR1977Cal455
ActsArbitration Act, 1940 - Sections 39 and 41
AppellantBejoy K. Swaika
RespondentShyam Sunder Swaika and ors.
Appellant AdvocateB.K. Bachawat, Adv.
Respondent AdvocateSaraf, Adv.
DispositionPetition dismissed
Cases ReferredRatan Lal Sharma v. Purshottam Harit.
Excerpt:
- .....(c). 2. we will record that on fridav last, i. e., apr. 22, 1977 after the order was passed by the learned judge. mr. b. k. bachawat appeared before us for bejoy kumar swaika and made an oral ap-lication that his client would be seriously prejudiced by the order of the learned judge unless stay of operation of the order was passed immediately by us on the undertaking of his client to the effect that he would make necessary application to file a memorandum of appeal without certified copy of the order on monday, apr. 25. 1977 for stay of operation of the order. on the submission of mr. bachawat and in the presence of the learned counsel for shyam sunder swaika and his group we stayed the operation of the order of the learned judge till today without prejudice to the rights and contentions.....
Judgment:

Hazra, J.

1. This is a petition for an order that fa) leave be given to the petitioner to file the Memorandum of Appeal on his undertaking (i) to have the order dated Apr. 22, 1977 drawn up and completed within the period of limitation and to include the same in the Paper Book to be filed herein; (ii) to have a list of dates relevant for the purpose of limitation prepared and to have the same included in the paper Book to be filedherein; and (iii) to have the order to be made herein included in the Paper Book, (b) stay of operation of the order dated Apr. 22, 1977, (c) The respondent No.land/or his group, their servants, agents and/or assigns be restrained by an order of injunction from giving effect to or from acting under the order dated Apr. 22, 1977 in any way Or manner whatsoever and (d) ad interim order in terms of prayer (b) and (c).

2. We will record that on Fridav last, i. e., Apr. 22, 1977 after the order was passed by the learned Judge. Mr. B. K. Bachawat appeared before us for Bejoy Kumar Swaika and made an oral ap-lication that his client would be seriously prejudiced by the order of the learned Judge unless stay of operation of the order was passed immediately by us on the undertaking of his client to the effect that he would make necessary application to file a Memorandum of Appeal without certified copy of the order on Monday, Apr. 25. 1977 for stay of operation of the order. On the submission of Mr. Bachawat and in the presence of the learned counsel for Shyam Sunder Swaika and his group we stayed the operation of the order of the learned Judge till today without prejudice to the rights and contentions of the parties.

3. Mr. Bachawat is now moving this application and is praying for further stay of operation of the order. Mr. Saraf for Shyam Sunder Swaika and others submits that the order dated Apr. 22, 1977 is not an appealable order. In any event, the petitioner will not be prejudiced by the order and so the order should not be stayed. The minutes of the order dated Apr. 22, 1977 of S. Mukharji, J. is as follows:

'P. & A. Suit No. 191 of 1972

Shyam Sunder Swaika v.

Bejoy Kumar Swaika

Cor: S. Mukharji,_J.

22-4-1977 .

THE COURT: The Registrar O. S. is directed to send the interim order Award dated 29-12-1976 for registration thereof to the Registrar of Assurance, Calcutta in course of tomorrow the 23rd Apr. 1977 at the costs of the plaintiff.

Registrar O. S. and parties to act on a signed copv of the minutes on 'the undertaking of the plaintiff's Advocate on Record to draw up and complete the order.'

4. Mr. Bachawat submits that the Court had no jurisdiction to pass the order dated Apr. 22, 1977 as the order was passed in the Partition and AdministrationSuit No. 191 of 1972 Shyam Sunder Swaika v. Bejoy Kumar Swaika in which reference had been made for arbitration under Section 21 of Arbitration Act. We are unable to accept the submission of Mr. Bachawat, because under Section 23(2) of the Arbitration Act 'where a matter is referred to arbitration the Court shall not. save in the manner and to the extent provided in this Act deal with such matter in suit.' Under Section 25, the provisions of other chapters of the Arbitration Act shall so far as they can be made applicable apply to the arbitration under this Chapter. Chapter IV relates to arbitration in suits. Admittedly, in the instant case an interim award has been made by the Umpire Mr. D. K. De, Harrister-at-Law. Bejoy Kumar Swaika has made an application for setting aside the interim award. Order has been passed by S. Mukharji. J. dismissing the said application. Against that order an appeal has been preferred. In that appeal we passed an ad interim order on Mar. 23, 1977 to the following, effect:

'The Court: After hearing the parties and taking into consideration the facts and circumstances of the case we think that the proper order at this stage would be to restrain the respondents herein from obtaining the Judgment upon Award in respect of the Award filed by the Umpire, Mr. D. K. De. till the disposal of the appeal and we feel that the appeal should be expedited as follows:

Index will be settled within a week from date. Type-written or cyclostyled paper book to be filed within three weeks from date and the appeal to appear in the peremptory list on 19-4-1977. Costs costs in the appeal. The above order will not in any way prejudice the parties to perform their rights and obligations under the award,'

5. Thus, there was no order by us prejudicing the parties to perform their right and obligations under the award. We only restrained Shyam Sunder Swaika from obtaining judgment upon award.

6. Mr. Saraf contend that under Section 23 of the Registration Act. the award shall not be accepted for registration unless presented for that purpose to the Registrar within four months from the date of making of the award. He invited our attention to a Bench decision of this Court in Aditya Kumar v. Narayandas : AIR1971Cal65 where this Court said :

'The document, that is the Award cannot now be registered under the Registration Act in view of the provisions in Section 25 of that Act. Much longer than 4 months have elapsed from the date on which the Award was signed by the Arbitrator. Provisions in Section 25 of the Registration Act, are imperative and that time cannot be extended by Court.''

He also invited our attention to the decision of the Supreme Court in Ratan Lal Sharma v. Purshottam Harit. : [1974]3SCR109 and contended that the award requires registration and if it is not registered it would be inadmissible in evidence for the purpose of pronouncing judgment in accordance with the award.

7. It is not disputed before us that the award has to be registered. So on the oral application of Shyam Sunder, the learned Judge made the above order for registration.

8. We accept the submission of Mr. Saraf that the learned Judge had jurisdiction to pass the order and that the order of the learned Judge is not appealable under Section 39 read with Section 41 of the Arbitration Act. Even if the order was passed in the suit as contended by Mr. Bachawat, then in view of the fact that the order complained of has not determined any of the rights of the parties finally, we hold that' the order is not appealable under Clause 15 of the Letters Patent. From whichever point of view the matter is looked into, we are satisfied that the order is not appealable and as such we cannot grant leave to file Memorandum of Appeal in terms of prayer (a) of the petition.

9. We will record that we have heard the learned counsel for both the parties and we are further satisfied that in any event the petitioner will not be prejudiced by the order of the learned Judge, because the award has to be presented for registration within the time as provided under Section 23 of the Registration Act. read with Sections. 24. 25 and 26,

10. In the premises, the prayers made in the petition are rejected. This petition is dismissed with costs. It is recorded that Mr. Saraf's clients are not admitting the allegations in the petition.

11. Although we are dismissing this petition we are making it clear that since we passed an order on Apr. 22, 1977 staying the operation of the order of S. Mukharji, J. dated Apr. 22. 1977 till today and as the time for sending the award for registration under that order expired on Apr. 23, 1977. we are extending the time for registration till tomorrow. Let the Registrar O. S. act on a signed copy of the minutes, on the undertaking of Advocate on Record of Shyam I Sunder Swaika to draw up and complete the order.

R.M. Datta, J.

I agree.


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