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Roshan Lal Kuthiala Vs. Radha Krishna Kuthalia and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 11 of 1972
Judge
Reported inAIR1972HP137
ActsArbitration Act, 1940 - Sections 14(2), 17 and 39(1)
AppellantRoshan Lal Kuthiala
RespondentRadha Krishna Kuthalia and ors.
Appellant Advocate Chhabil Dass, Adv.
Respondent Advocate B. Sita Ram,; R.N. Malhotra and; D.P. Sud, Advs.
DispositionAppeal dismissed
Cases ReferredGopal Singh v. Union of India
Excerpt:
- .....on january 8, 1971 it was barred by time by reason of article 119 (a) of the limitation act. the learned judge repelled the contention holding that having regard to the prayer set out in it the application must be treated as one under sec. 17 and not one under section 14. it was only if the petition was treated as one under section 14 that it could be considered to be barred by time. proceeding on the view that the filing of the award was not in accordance with s. 14 (2), he declined to recognise that it was filed in court, and therefore he did not consider it necessary to enter into the objections preferred by the lessors under ss. 30 and 33, and to decide whether judgment should be pronounced and a decree made under section 17 in terms of the award. accordingly, he dismissed the.....
Judgment:

R.S. Pathak, C.J.

1. This is an appeal purporting to be under Section 39 of the Arbitration Act read with Clause 10 of the Letters Patent and also S. 10 of the Delhi High Court Act.

2. In 1960, the appellant and the respondents Nos. 1 to 6 entered into an agreement with the Himachal Pradesh. Government to take on lease certain forests. The agreement provided for arbitration in the event of a dispute or difference between the parties. A dispute did arise, and it was referred to an Arbitrator, Shri H. S. Pathania. Both the parties appeared before the Arbitrator and participated in the arbitration proceedings. On December 20, 1970, the Arbitrator made an award in favour of the lessees. It seems that on December 22. 1970 the Arbitrator personally appeared before the High Court and filed his award. On the same date, copies of the award were given to the lessees aswell as to counsel for the Union of India, who was representing the interests of the Himachal Pradesh Government.

3. On January 8, 1971, the lessees filed an application praying that the award be made a rule of the court, and that the decree should include interest at the rate of 6% per annum. On February 24, 1971, the lessors filed objections, apparently under Ss. 30 and 33 of the Arbitration Act, against the award alleging that the Arbitrator was guilty of misconduct, that the award was patently erroneous in law and that it bad been improperly procured by the lessees. It was prayed that the award be set aside.

4. The case came on before D. B. Lal, J., and he held that as the Arbitrator had filed the award in Court without the request of either party in that behalf and without any direction from the Court, the filing of the award was not in accordance with Section 14 (2) of the Arbitration Act and, therefore, could not be recognised or taken notice of by the Court and no proceeding could be taken on it under Section 17 of the Act. It was also urged before him by the lessors that as the application under Section 14 of the Act has been filed on January 8, 1971 it was barred by time by reason of Article 119 (a) of the Limitation Act. The learned Judge repelled the contention holding that having regard to the prayer set out in it the application must be treated as one under Sec. 17 and not one under Section 14. It was only if the petition was treated as one under Section 14 that it could be considered to be barred by time. Proceeding on the view that the filing of the award was not in accordance with S. 14 (2), he declined to recognise that it was filed in court, and therefore he did not consider it necessary to enter into the objections preferred by the lessors under Ss. 30 and 33, and to decide whether judgment should be pronounced and a decree made under Section 17 in terms of the award. Accordingly, he dismissed the application dated January 8. 1971 and directed that the award and the connected papers be consigned to the record. The present appeal is directed against that order.

5. At the outset, learned counsel for the State of Himachal Pradesh and the Union Government has raised a preliminary objection. He contends that the appeal is not maintainable. Upon a careful reading of the judgment and order of the learned single Judge, and after hearing learned counsel for the parties, it appears to us that the preliminary objection must prevail. Learned counsel for the appellant concedes that the appeal cannot be referred to Clause 10 of the Letters Patent or to S. 10 of the Delhi High Court Act. The question thenis whether Section 39 of the Act contemplates such appeal.

6. Learned counsel for the appellant maintains that the order under appeal is an order setting aside an award, and that the appeal lies under Section 39 (I) (vi) of the Arbitration Act. The contention is that as the application dated January 8, 1971 has been dismissed and the award has been consigned to the records, the advantage flowing to the appellant from the award has been lost altogether and the award has become ineffective. In substance, it is said, the award has been set aside. We are unable to accept the contention. The learned single Judge has held that the filing of the award in court by the Arbitrator cannot be recognised in law. In his view, there was no award at all before the court. Whatever was done by the arbitrator was non est. Proceeding from there, he reasoned that as no award could be said in law to have been filed, the court could not go on to pronounce judgment and make a decree in terms of the award. Plainly for that reason, the learned single Judge did not consider it necessary to adjudicate upon the objections filed by the Government under Sections 30 and 33 of the Act. In other words, the position is as if nothing has been done yet under Section 14 (2) of the Act. When that is so, we find it difficult to see how the award can be said to have been set aside. The effect of the judgment and order of the learned single Judge is not to render the award ineffective or to deprive any party of the benefit of the award or to set it aside. The effect is merely to treat that no award has yet been filed in court. For this reason apparently, the learned single Judge took the view that no question arises of any objections to the award being considered at this stage. We, therefore, hold that the judgment and order of the learned single Judge does not amount to setting aside the award.

7. We have been referred by the appellant to Makeshwar Misra v. Laliteshwar Prasad Singh, AIR 1967 Pat 407 (FB). In that case, however, the trial court before which the award was filed under Section 14 (21 of the Act upheld the objection to the award and held that there was no arbitration agreement and the award was not a genuine document. Clearly, the learned Judges can be said to have set aside the award and, therefore, an appeal would lie. So also in Syed Hasan Ali Khan v. Askari Begam, AIR 1959 All 777 to which our attention was invited, the trial court adjudicated upon the objections to the award and upon that dismissed the application under Section 14. The learned Judges held that the award must be considered to have been set aside. Reference has alsobeen made to Gopal Singh v. Union of India, 1972 Him LR 42. In that case, an application under Section 9 of the Act was made by one of the parties to the arbitration agreement, and while it was pending the arbitrator gave his award which was filed in court. The court allowed the application under Section 9 holding that the appointment of the arbitrator was invalid, and on that ground it dismissed an application to make the award a rule of the court. In an appeal against the order disposing of the application under Section 9 and the application for a decree in terms of the award, this court held that no appeal lay against the order dismissing the application under Section 9. but an appeal did lie against the order dismissing the application for making the award a rule of the court. It is clear that after the finding of the court on the application under Section 9 that the appointment of the arbitrator was invalid, the consequential finding could only be that the award was also invalid. The award was held by this court to have been set aside. The facts of that case are entirely distinguishable from those of the present case where the learned single Judge has taken the view that in the eye of law there is no award yet before the court.

8. If this appeal does not lie and the judgment of the learned single Judge remains undisturbed on the merits, it is still open to the court to receive a fresh copy of the award in accordance with Section 14 (2) and to go on from there in compliance with the provisions of the Act. It can entertain objections to the award again and while disposing them of decide whether the award should be set aside or not.

9. In our opinion, the order of the learned single Judge cannot be construed as an order setting aside the award and, accordingly, we hold that the present appeal is not maintainable, under Section 39 (I) (vi) of the Arbitration Act.

10. In the circumstances, the appeal is dismissed. We make no order as to costs.

Chet Ram Thakur, J.

12. I agree.


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