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1958 Supreme(Cal) 205
HIGH COURT OF CALCUTTA
P. B. CHAKRAVARTTI, S. C. LAHIRI
PANCHANAN DEY - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
A. F. O. O. 74 Of 1956
Decided On : JULY 30, 1958
Where Section 14 (2) of the Arbitration Act cannot apply, the Court may in a proper case make an order for the filing of the award under Section 151 of the Code of Civil Procedure.
Headnote:
ARBITRATION - Filing of Award - Death of Arbitrator - No Authority Given to File Award - Whether Court Can Order Filing of Award Under Section 151 of the Code of Civil Procedure.
Fact of the Case:
The appellant, Panchanan Dey, entered into several contracts with the respondent, Union of India, for the supply of steel-made stores of various kinds. The contracts apparently contained an arbitration agreement, although it has not been printed in the paper book, that in the event of disputes and differences arising over the performance of the contracts, the same would be referred to the arbitration of two arbitrators one to be nominated by each party, and that if the arbitrators failed to agree, the matter would be referred to the decision of an umpire. Disputes did arise about several of the contracts and they were referred to the arbitration of one Sri Niranjan Chatterjee, a pleader, nominated by the appellant and one Sarkar Bukshi Siv Charan Singh nominated by the Union of India. For the purposes of the reference, the relevant contracts were divided into two groups and a consolidated reference with respect to each group was made, so that there were two references, each covering a number of contracts. The arbitrators failed to agree and thereupon the disputes were referred to the arbitration of the late Mr. A. N. Sen, a retired Judge of this Court, as umpire. He made his awards on the 9th of March, 1954, and sent notice of his having made them to the parties. The appellant received the notice addressed to him on 15-3-1954 and the respondent on the 10th. The umpire held his proceedings at Delhi.
Finding of the Court:
The Court held that Section 14 (2) of the Arbitration Act is not at all concerned with such a case, because it only enjoins an arbitrator or umpire who has made an award to cause it to be filed, if requested by one of the parties or a representative of his or if ordered by the Court to do so. But it does not purport to make any provision, whether of a positive or a negative character, as to whether an award, admittedly made, may be filed in Court where the arbitrator or umpire who made it is no longer alive or available to file it. If, I may say so at the risk of repetition, it is not the scope of Section 14 (2) to lay down in what circumstances an award may or may not be filed and its only scope is to make it the duty of the arbitrator or umpire who has made the award to file it in Court in the circumstances stated in the section. I am accordingly of opinion that where Section 14 (2) of the Act cannot apply, it constitutes no bar to the filing of an award otherwise than by the arbitrator or umpire concerned or a person authorised by him, if such filing can be directed by some other provision of law and if the circumstances of a case justify such direction.
Issues: Whether the Court can order the filing of an award under Section 151 of the Code of Civil Procedure, where Section 14 (2) of the Arbitration Act cannot apply due to the death of the arbitrator and the absence of any authority given to file the award.
Ratio Decidendi: The Court held that where Section 14 (2) of the Arbitration Act cannot apply, the Court may in a proper case make an order for the filing of the award under Section 151 of the Code of Civil Procedure. Section 41 (a) of the Arbitration Act provides that subject to the provisions of the Act and of the rules made thereunder, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court and to all appeals under the Act. It is true that the Code is made applicable subject to the provisions of the Act, but if Section 14 (2) does not apply in a case where the arbitrator or umpire has died before causing the award to be filed, as in my view it does not, there can be no conflict with that section if the Code is applied in such a case. The proceedings before the Court have, however, to be proceedings "under this Act." There may, therefore, be some difficulty in a case where even before an application is made to the Court for an order for the filing of the award, the arbitrator or umpire is already dead, because it may be said that, in such a case, the application is not an application under Section 14 (2) of the Act and there being no other provision authorising such an application, it is not an application under the Act and, therefore, the Code cannot be imported under the provisions of Section 41 (a ). I need not consider such a case on the present occasion, because the present case is not such a case. Here, the umpire was alive at the time when the application was made and, therefore, the application for an order on him to file the award was an application under Section 14 (2) of the Act and the proceeding initiated by that application was a proceeding under the Act. By reason of the events which happened subsequently, the substantive provisions of Section 14 (2) ceased to be applicable and, in my view, the Court having before it a proceeding under the Act, could then resort to Section 151 of the Code to make an order for filing the award, since no other provision in the Act applied, if, however, it was possible on the materials before the Court to make such an order and if justice required that it should be made.
Final Decision: The appeal was allowed, the order of the learned Judge was set aside, and the appellant's application for an order for filing the award was allowed in terms of prayer (e) of the petition. The respondent, Union of India, was directed to file in Court the original award, together with the files and papers disclosed by and set out in the affidavit of Sailendra Nath Neogy, affirmed on 2-4-1958 and the appellant was directed to file in Court the documents specified in Schedule 'y' to his application filed on 19-2-1958. The Court below was directed to serve notice of the filing of the award and proceed to deal with the award in accordance with law.
( 1 ) THIS appeal arising out of an application under Section 14 (2) of the Arbitration Act raises a question to which the Act furnishes no answer. The learned trial Judge, Sarkar J. , thought that the matter was concluded by a decision of the Supreme Court, but I do not think that it is.
( 2 ) THE facts are as follows: The appellant, Panchanan Dey, entered into several contracts with the respondent, Union of India, for the supply of steel-made stores of various kinds. The contracts apparently contained an arbitration agreement, although it has not been printed in the paper book, that in the event of disputes and differences arising over the performance of the contracts, the same would be referred to the arbitration of two arbitrators one to be nominated by each party, and that if the arbitrators failed to agree, the matter would be referred to the decision of an umpire. Disputes did arise about several of the contracts and they were referred to the arbitration of one Sri Niranjan Chatterjee, a pleader, nominated by the appellant and one Sarkar Bukshi Siv Charan Singh nominated by the Union of India. For the purposes of the reference, the relevant contracts were divided into two groups and a consolidated reference with respect to each group was made, so that there were two references, each covering a number of contracts. The arbitrators failed to agree and thereupon the disputes were referred to the arbitration of the late Mr. A. N. Sen, a retired Judge of this Court, as umpire. He made his awards on the 9th of March, 1954, and sent notice of his having made them to the parties. The appellant received the notice addressed to him on 15-3-1954 and the respondent on the 10th. The umpire held his proceedings at Delhi.
( 3 ) BOTH the awards were in the appellant's favour. By one of them he was awarded a sum of Rs. 55,412-8-0, together with interest and by the other, a sum of Rs. 11,037-13-0. The Union of India accepted the second and the smaller award and informed the appellant of their acceptance by a letter, dated the 19th of April, 1954. As there was no intimation about the Union's decision regarding the first award, the appellant made an enquiry by a letter dated the 29th of April, 1954 and was informed in reply by a telegram that the award was not acceptable to Government. The original telegram is on the record, but no date can be found on it.
( 4 ) THEREAFTER, by a letter dated the 20th of May, 1954, a solicitor, acting for the appellant, made a request to the umpire to file the first award for Rs. 55,412-8-0 in this Court as it had become necessary to obtain a judgment on it. On the next day, the same solicitor addressed a letter to the Union of India in which he stated that he understood from his client that the umpire had sent the original award to the Union for filing the same in the High Court at Calcutta and that they should file it immediately so that this Court might be asked to pronounce a judgment on the award. The two letters were hardly consistent, because, according to the first, the award was with the umpire and he was not filing it, while, according to the second, the umpire had sent the award to the Union of India for filing it in this Court and it was the Union of India who were withholding it.
( 5 ) ON the 22nd of May, 1954, the umpire replied to the letter addressed to him. He did not say that he had already sent the award to the Union of India for filing it, but said only that he found two difficulties in the way of complying with the appellant's request. In the first place, he felt some doubt as to whether it would be this Court or the Civil Court at Delhi which would be the proper Court to file the award in, though he personally thought that the appropriate Court was the latter and in those circumstances he said that the parties ought to obtain an order on him from a Court to file the award. He added that although the Union of India had taken a stamped receipt from him in resp
