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High Court Of Delhi
BALKISHAN - Appellant
Versus
PANNALAL SUD - Respondent
Civil 668 of 1969
Decided On : 12/14/1971
ARBITRATION - PRIVATE ARBITRATOR - WRIT JURISDICTION - ARBITRATOR NOT SUBJECT TO WRIT JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION - ARBITRATION ACT, 1940 IS A COMPLETE CODE PROVIDING CONTROL OVER ARBITRATOR'S POWERS AND FUNCTIONS - AGGRIEVED PARTY HAS AMPLE REMEDY UNDER THE ACT - DELAY IN MOVING COURT DISENTITLES PETITIONER TO RELIEF.
Fact of the Case:
Petitioner and respondents 3 and 4 were real brothers, respondent 1 was their cousin brother, and respondent 2 was the son-in-law of their uncle. The petitioner and his brothers, respondents 3 and 4, were doing business in partnership with respondent 2 under the name and style of "Bags and Cartons." The petitioner and respondent 2 were also carrying on the business of "Pioneer Paper Projects." Disputes arose between the petitioner and respondents 2, 3, and 4, leading them to enter into two agreements to refer the disputes to the sole arbitration of respondent 1. Respondent 1 gave an award on November 15, 1968, in respect of both arbitration agreements. The petitioner alleged that despite approaching respondent 1 to implement the award, only part of it had been implemented. He also alleged that respondent 1 refused to file the award and arbitration record in court, despite requests. The petitioner sought a writ of mandamus directing respondent 1 to file the original award and related documents in the Delhi High Court.
Finding of the Court:
The court held that a private arbitrator appointed under the Arbitration Act, 1940, is not amenable to the jurisdiction of the court under Article 226 of the Constitution. The court found that the Arbitration Act, 1940, is a complete code that provides for control over the powers and functions of the arbitrator, and any aggrieved party has ample remedy under the Act. The court also held that the petitioner was disentitled to relief due to delay in moving the court and that a party cannot be allowed to sit and allow their remedy to become time-barred and then invoke the extraordinary jurisdiction of the court under Article 226 of the Constitution.
Issues: 1. Whether a private arbitrator appointed under the Arbitration Act, 1940, is amenable to the jurisdiction of the court under Article 226 of the Constitution? 2. Whether the petitioner is disentitled to relief due to delay in moving the court?
Ratio Decidendi: 1. The court held that a private arbitrator appointed under the Arbitration Act, 1940, is not amenable to the jurisdiction of the court under Article 226 of the Constitution because: a) Arbitration is a consensual process where parties agree to submit their disputes to a tribunal provided under the law. b) A private arbitrator is not a statutory arbitrator and does not exercise statutory powers or duties. c) The Arbitration Act, 1940, is a complete code that provides for control over the powers and functions of the arbitrator, and any aggrieved party has ample remedy under the Act. 2. The court held that the petitioner was disentitled to relief due to delay in moving the court because: a) The petitioner had 30 days from the date of service of the notice of the making of the award to file an application for filing the award in court, but he failed to do so within the prescribed time. b) The petitioner's argument that there was no limitation period provided for an application to compel the arbitrator to file the award was rejected, as Article 119 of the Limitation Act, 1963, applies to such applications.
Final Decision: The petition was dismissed with costs.
( 1 ) THE main question that arises for determination in the present petition is whether the arbitrator to whom private reference is made by a written agreement is amenable to the jurisdiction of this court under Arrticle 226 of the Constitution.
( 2 ) THE petitioner and respondents 3 and 4 are real brothers, Res- pondent No. 1 is cousin brother of the petitioner and Respondent No. 2 is son-in-law of Atma Ram who is petitioner s uncle.
( 3 ) THE petitioner and his brothers, respondents 3 and 4 were doing business in partnership with respondent No. 2 under the name and style of bags and Cartons . The petitioner and respondent No. 2 were also carrying on business of Pioneer Paper Projects. Disputes having arisen between the petitioner and respondents 2, 3 and 4, they entered into two agreements to refer the disputes to the sole arbitration of respondent No. 1. Respondent No. 1 gave one award dated 15th November, 1968, in respect of and in connection with both the arbitration agreements. It is admitted by the petitioner in the rejoinder dated 28th October, 1969 which he filed in reply to counter-affidavit dated 20th September, 1969, that the petitioner as well as other parties to the arbitration agreement were notified about the making of the award and signed copies of the award were also given on the same date. The petitioner s allegation, however is that in spite of his approaching respondent No. 1 to get the entire award implemented by respondents be has been put off on one excuse or other and only part of the award has been implemented. It is also alleged that the petitioner requested respondent No. 1, arbitrator to file the award and the arbitration record in court to enable him to take such further act ion thereof as permissible in law. But respondent No. 1 has not acceded to this request. It has also been alleged that the petitioner sent a letter dated 26th May, 1969 to respondent No. 1 asking him to file the award on his behalf but no action has been taken. It is alleged that respondent No. 1 at the instance of respondent No. 2 has refused to carry out his legal obligation which is cast upon him under the provision of Arbitration Act and the refusal of respondent No. 1 is mala fide and against the legal obligation under the law. It has also been stated that the limitation for the filing of the application under section 17 of the Arbitration in Court has already expired and, therefore, the writ petition is the only remedy available to him A writ in the nature of mandamus is sought directing respondent No. 1 to file in the Delhi High Court the original award and the depositions and documents proved before him including the original arbitration agreements dated 3rd October, 1968 and 2nd November, I968.
( 4 ) RETURN has been filed by the respondents. The allegation of conspiracy and coercion between respondent No. 1 and others has been denied. It is also denied that the respondents have not carried out of implemented their obligation under the law. It is maintained that the petitioner has no right and that his grievance is not genuine.
( 5 ) A rejoinder was also filed by the petitioner in which details have been mentioned as to and in what manner the award has not been implemented.
( 6 ) I am not referring to these various allegations and counter allegations on merits because they have no relevance for the purpose of deciding the petition before me. Preliminary objections have been taken by the respondents and as the writ petition must fail on these, it is not necessary to deal with the rest of the allegations in the petition.
( 7 ) THE main objection taken is to the maintainability of the writ petition. The argument in short is that as the matter was REFERRED TO the arbitration of respondent No. 1 who is a private arbitrator no writ under Article 22. 6 of the Constitution lies against a private arbitrator and the relief of asking a writ of mandamus or any other appropriate writ is mis-conceived.
( 8 ) ANOTHER
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