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HIGH COURT OF CALCUTTA
C. N. Laik, K. J. Sengupta
KRIPA SINDHU BISWAS - Appellant
Versus
SUDHA SINDHU BISWAS - Respondent
AFOD 117 Of 1967
Decided On : APRIL 06, 1973
ARBITRATION - Award - Validity - Non-filing of award in Court - Effect - Whether award is a nullity - Arbitration Act, 1940 (X of 1940), Ss. 14, 17, 20(5), 25, 26, 30 to 32.
Fact of the Case:
The plaintiff and the defendants were brothers. The properties were admittedly joint between the plaintiff and the defendants Nos. 1 to 3. The parties appointed three arbitrators to effect partition of their joint properties. During the pendency of the arbitration proceedings, one of the arbitrators died. The remaining two arbitrators made the award on July 31, 1956. The award was thereafter registered on 24th August, 1956 after notices were served by the arbitrators on all the parties including the plaintiff respondent No. 1. The plaintiff filed a suit for partition in the preliminary form. The Trial Court held that the award was not a valid one, principally on the ground that the award was passed only by two of the arbitrators, out of three. The Trial Court also held that the award was not acted upon by all the parties. The plaintiff at least always repudiated it. The Trial Court decreed the suit in part for partition in the preliminary form. The defendant No. 1 appellant carried the complaint to the High Court upon several grounds.
Finding of the Court:
The High Court held that the award though not filed in Court is not a nullity and reversed the findings of the Trial Court to the effect that such an award could not operate as an instrument of partition. The High Court also held that the award has been acted upon by all the parties. The High Court dismissed the suit in its entirety as the case of the plaintiff respondent fails.
Issues: 1. Whether the award though not filed in Court is a nullity? 2. Whether the award has been acted upon by all the parties?
Ratio Decidendi: 1. The Arbitration Act 1940 does not alter the position from the earlier statutes viz, Arbitration Act of 1899 and second Schedule of the Civil P. C. of 1908. When dealing with legislations the best one can do, is to follow as faithfully as one can, all the relevant provisions of the Acts without seeking for purposes of construction to rank them in a hierarchy. 2. As the cause of action merges in the award, a valid award constitutes a bar to any action on the original demand. 3. The principle laid down in the case of Sardool Singh v. Hari Singh in AIR 1968 Punj and Har 204 (211) to the effect that the award without a rule of Court becomes a nullity, is not good law being expressly overruled by the Supreme Court in the case of Satish Kumar v. Surinder Kumar. 4. Consequently the decision laid down by the Andhra Pradesh High Court in the Full Bench decision of (FB) (supra) which was strongly relied on by the Trial Court and on which the Punjab and Haryana High Court based its said decision, has been impliedly overruled by the said Supreme Court decision. 5. There is no warrant for the argument of the Respondent that the observations made by the Supreme Court in (supra) were made in the context of the effect and validity of the registration of the award, and that it would have no bearing on the present question in issue. 6. The ruling of the Patna High Court in the case of Sheo Narayan v. Prabhu Chand, ATR 1958 Pat 252 to the effect that the award requires to be filed, is not also accepted by the Supreme Court. 7. Any objection going to the root of the award such as that the arbitrator had no jurisdiction or that the matter was tainted with fraud could be pleaded in the suit but objection on the ground of irregularity not appearing on the face of the award is excluded by the law by which both parties had agreed to be bound. 8. The award was not wrong in law. The jurisdiction of the arbitrators had not terminated. 9. It would seem odd, to say the least, that the Plaintiff Respondent did submit to take his chances of the arbitration and that he cannot now on the general rule, upon which all Courts act with respect to awards be allowed, having taken his chances of the arbitration, to set aside the award upon the ground of the objection taken.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit in its entirety.
( 1 ) IN this important case there is some useful discussion on the law of arbitration. I have to plough through several authorities. Doctrines are laid down which would not be likely to introduce some further uncertainty into this branch of law. I did not enter at length into the technical arguments that were addressed to us, as any observation made on the same, might open the way to easy defeat of the provisions of the Arbitration Act, 1940 (hereinafter referred to as the Act ). The time has long pone by since this Court showed any disposition to sit as a Court of Appeal on awards in respect of matters of fact.
( 2 ) THE case has a chameleon-like history. It has greatly protracted the hearing and added to the costs. In this unfortunate litigation the disputants are own brothers. The defendant No. 1 appellant is a legal practitioner in the Howrah Court The plaintiff respondent No. 1 is a medical man.
( 3 ) THIS appeal is presented from a judgment and decree passed in part, in a suit for partition in the preliminary form. The plaintiff's 1/3rd share was declared. There was a direction by the Trial Court that the mother of the fighting brothers (Sm. Dakshabala, Defendant No. 4 and Respondent No. 5 in the appeal) is to be given one-fourth share at the time of the final allotment in lieu of maintenance. The plaintiffs prayer for accounts and for setting aside the documents of sales are dismissed. Though the plaint sought the general account and partition, the suit is avowedly one to set aside the award which the Respondent contended, was not binding on him.
( 4 ) FOR the purpose of duly considering the decree appealed against, it will be necessary to take a short view of the circumstances which gave rise to the dispute and which led to the making up of an award by the arbitrators. It is shaped in the following way.
( 5 ) THE suit properties are admittedly joint between the plaintiff and the defendants Nos. 1 to 3. The properties originally belonged to Mahendranath. Jatindranath was his only son but he predeceased his father in the year 1923, leaving behind him, his second wife the said Sm. Dakshabala. Mahendranath died in the year 1927 leaving behind him, three grandsons viz. , Amarendra, Kripasindhu (defendant No. 1 and appellant in this appeal) and Sudhasindhu (plaintiff and respondent No. I in the appeal ). Amarendra, the only son of Jatindra's first wife, died in the year 1955 leaving behind him two sons Manas and Manoj, defendants Nos. 2 and 3 and respondents Nos. 2 and 3 in this appeal respectively.
( 6 ) NOW for the case of the plaintiff. The appellant Kripasindhu, was the Karta of the joint family. In 1357 B. S. corresponding to 1950-51, the three brothers separated in mess. Under an arrangement, the parties began to possess certain properties separately while the rest of the properties remained joint. As joint possession was felt inconvenient, the three brothers appointed Dr. Premtosh Basu, a medical man of repute and two Pleaders of the Howrah Court viz. , Sri Manmatha Ghosh and Sri Jiban Krishna Chatterjee, as arbitrators to effect partition of their joint properties. All the parties to the arbitration signed the agreement on February 2, 1954 in token of their consent to it. During the pendency of the arbitration proceedings, Dr. Basu died on July 21, 1956. The plaintiff alleged that the defendants Nos. 1 and 2 viz. , Kripasindhu, the appellant, and Amarendranath the deceased father of defendants 2 and 3, influenced the other two arbitrators and obtained a collusive and illegal award on 31st July, 1956.
( 7 ) THE plaintiff respondent No. 1 attempted to draw back from his agreement He filed an application under Section 33 of the Act on April 3, 1958 for setting aside the award in the Trial Court. The existence and validity of the arbitration agreement and the award were challenged on various grounds giving rise to miscellaneous case No. 23 of 1958 which was allowed on September 23, 1959.
( 8 ) AN appeal
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