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High Court Of Calcutta
A. K. SEN, B. C. CHAKRABARTI
SUKUMAR GHOSH - Appellant
Versus
TULSI CHARAN GHOSH - Respondent
CO 2318 Of 1979
Decided On : 01/25/1980
ARBITRATION ACT - SECTION 32, 33, 34, 35 - COURT'S JURISDICTION - AWARD - DECREE - ENFORCEMENT - OBJECTION UNDER SECTION 47 OF THE CODE OF CIVIL PROCEDURE - VALIDITY OF AWARD - SETTING ASIDE - GROUNDS - LIMITATION - APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE READ WITH ORDER 9 RULE 13 THEREOF - SERVICE OF PROCESS - BONA FIDE - JURISDICTION OF THE COURT TO PASS DECREE ON AWARD - REJECTION OF APPLICATION UNDER SECTION 34 OF THE ACT - CONSEQUENCES - COURT'S SEISIN OF DISPUTE - INABILITY TO ADJUDICATE AND PASS DECREE ON AWARD - JURISDICTION TO TAKE COGNIZANCE OF AWARD OR PASS DECREE THEREON - INDEPENDENT CHALLENGE TO DECREE ON GROUND OF WANT OF JURISDICTION - EXECUTABILITY OF DECREE - REVISION AGAINST ORDER OVERRULING OBJECTION UNDER SECTION 47 OF THE CODE - SUCCESS - OBJECTION UNDER SECTION 47 SUCCEEDS - DECREE WITHOUT JURISDICTION - NOT EXECUTABLE - COURT TO PROCEED WITH PARTITION SUIT.
Fact of the Case:
Petitioner filed a partition suit against his brother and mother. The brother filed an application under Section 34 of the Arbitration Act, claiming a stay of proceedings on the ground of an arbitration agreement. The application was dismissed. The brother then filed an appeal and obtained an ex parte interim order of stay. During the pendency of the appeal, the arbitrator made an award and the trial court passed a decree in terms of the award. The petitioner filed an application under Section 151 of the Code of Civil Procedure read with Order 9 Rule 13 thereof for setting aside the ex parte decree and an objection under Section 47 of the Code of Civil Procedure to the execution of the decree. Both applications were dismissed by the trial court.
Finding of the Court:
The court held that the arbitrator was not acting bona fide and that the award was invalid and without jurisdiction. However, the court also held that the petitioner could not challenge the award collaterally by challenging the decree in his objection under Section 47 of the Code of Civil Procedure, as such a challenge was barred by Section 32 of the Arbitration Act. The court further held that the trial court had no jurisdiction to pass a decree on the award as it had refused to stay the partition suit and had kept the proceeding alive.
Issues: 1. Whether the petitioner could challenge the award collaterally by challenging the decree in his objection under Section 47 of the Code of Civil Procedure? 2. Whether the trial court had jurisdiction to pass a decree on the award as it had refused to stay the partition suit and had kept the proceeding alive?
Ratio Decidendi: 1. The court held that the petitioner could not challenge the award collaterally by challenging the decree in his objection under Section 47 of the Code of Civil Procedure, as such a challenge was barred by Section 32 of the Arbitration Act. The court relied on the Full Bench decision of Saha and Company v. Iswar Singh, which held that the Arbitration Act contemplates that all applications challenging an award must be made under Section 33 of the Act for setting aside the award except where the award is challenged as not existing in fact. 2. The court held that the trial court had no jurisdiction to pass a decree on the award as it had refused to stay the partition suit and had kept the proceeding alive. The court relied on the decision of Doleman and Sons v. Ossett Corporation, which held that if the court refuses to stay an action, the court has seisin of the dispute and it is by its decision, and by its decision alone, that the rights of the parties are to be settled.
Final Decision: The revisional application challenging the impugned order so far as it relates to the objection under Section 47 of the Code of Civil Procedure is allowed. Consequently, the objection under Section 47 succeeds and being allowed it is held that the decree under execution being without jurisdiction is not executable. It is now for the court to proceed with the partition suit.
( 1 ) AN order dated April 10, 1979, passed by the learned Subordinate Judge, 2nd Court, Howrah, is the subject matter of challenge in these two revisional applications which are being heard on contest by the opposite party. By the order impugned the learned Subordinate Judge dismissed an application under Section 151 of the Code of Civil Procedure read with Order 9 Rule 13 thereof filed in Miscellaneous Case No. 15 of 1972 and an objection under Section 47 of the Code of Civil Procedure filed in Title Execution Case No. 23 of 1973 which objection was registered as Miscellaneous Case No. 43 of 1973. Facts leading to the passing of the impugned order are not in dispute and may be set out briefly as follows. On June 24, 1970, the petitioner Sukumar Ghosh filed Title Suit No. 31 of 1970 in the 2nd Court of the learned Subordinate Judge, Howrah, praying for a decree for partition and accounts in respect of the suit properties against his brother the opposite party Tulsi Charan Ghosh and his mother Binodini Ghosh. The suit properties were (i) two storeyed residential house being premises Nos. 45 and 45/1, Desapran Sasmal Road, Howrah, (ii) the tenanted land and structures being premises No. 115, Brindaban Mallick Lane, Howrah, (in) some lands in Mouza Kalipur, P. S. Chanditala, District Hooghly, (iv) a stationery business run under the name and style of Messrs. Ghosh and Company at 14/2, Old China-bazar Street, (v) a printing press business run in partnership with a third party Ambarnath Misra under the name and style of Samudrika Press at 41, Desapran Sasmal Road, Howrah, and (vi) other movables and moneys deposited with banks. There is no dispute that even prior to the filing of the aforesaid suit for partition the third party partner Ambarnath Misra had filed in the same very court Title Suit No. 135 of 1970 (renumbered as Title Suit No. 9 of 1971) for dissolution of his partnership with the two brothers Tulsi Charan and Sukumar in respect of the said printing press business.
( 2 ) THE summons of the partition suit being Title Suit No. 31 of 1970 having been served on Tulsi Charan Ghosh he on July 27, 1970, filed an application under S. 34 of the Arbitration Act for stay of further proceedings of the partition suit. He claimed such a stay on a pleading that in the agreement of partnership relating to the business of Messrs. Ghosh and Company between him and Sukumar Ghosh there is an arbitration clause. That disputes having arisen between the parties they agreed to have such disputes settled through the intervention and arbitration of a reputed local gentleman Shri Anath Nath Banerji. Sukumar Ghosh and his advocate attended the sittings held by Shri Anath Nath Banerji and they duly put their signatures in the minutes of the said arbitration agreeing to resolve all their disputes through such arbitration which amounted to an agreement in writing to have the matters settled through arbitration. In view of that agreement and in view of the fact that the arbitration proceeding was pending between the parties further proceedings in the suit should be stayed.
( 3 ) IT is explicit on this application under Section 34 of the Arbitration Act, that according to Tulsi Charan Ghosh though the initial agreement for arbitration was limited to the disputes relating to the partnership business such agreement was extended to cover all disputes in view of the further agreement which was arrived at at the sitting of the arbitration by Shri Anath Nath Banerji which was acknowledged by Sukumar when he and his advocate signed the Minutes of arbitration held by Shri Banerji.
( 4 ) BY his order dated October 25, 1971, the learned Subordinate Judge, 2nd Court, Howrah, dismissed the aforesaid application under Section 34 of the Arbitration Act, obviously rejecting the case of Tulsi Charan that there was a further agreement for arbitration apart from the arbitration clause in the partnership.
( 5 ) THERE is no dispute that the arbitrat
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