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2009 Supreme(Ker) 361
High Court Of Kerala
HARUN-UL-RASHID
M.N.Babu, Mekkattu House - Appellant
Versus
The Secretary - Respondent
CRP. No. 222 of 2007
Decided On : 06/02/2009
For the Petitioner:Raju Abraham Pulpara, Advocate. For the Respondent:
M.K. Pushpalatha, Sc, Cochin Corporati, Advocate.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 85(2)(a) - Arbitral award - Consent - Award holder filed a suit before Sub Court, under section 20 of Arbitration Act, 1940 - Decreed - By the said decree Sub Court appointed as sole Arbitrator to pass an award by arbitrating disputes between parties and to file the same in court within six months from the date of decree - Court below rejected preliminary point raised by respondent regarding maintainability of execution proceedings and directed decree holder to proceed with the execution of the award - Held, Respondent also failed to challenge the proceedings by raising a contention before Arbitrator that he does not have jurisdiction to proceed under new Act - He did not choose to take up such a plea under section 16(2) of new Act - It is also pertinent to note that when the revision petitioner filed an application under S.23(3) of the new Act for amending his claim and reopen the evidence, the respondent filed his objection under the new Act - Sub Judge held that there must be an express agreement between parties to proceed under Arbitration and Conciliation Act - Court below ought to have held that there is consent as enjoined under section 85(2)(a) of new Act - Conclusion of learned Sub Judge that there is no express consent is against the facts - The facts squarely indicate that there is express consent - Sub Judge states that the Arbitrator has committed a mistake in stating that the award is passed under the provisions of new Act. None of the parties has such a case that the award passed by the Arbitrator under the new Act is a mistake - Criminal Revision Petition allowed.
Harun-Ul-Rashid,J.
Petitioner/award holder in E.P.No.104/2005 on the file of the IInd Additional District Judge, Ernakulam is the revision petitioner herein.
2. The award holder filed a suit, O.S.No.156/95 before the Sub Court, Ernakulam under Section 20 of the Arbitration act, 1940. The suit was decreed on 21/7/1999. By the said decree the Sub Court appointed Sri Babu Thomas. K. as sole Arbitrator to pass an award by arbitrating the disputes between the parties and to file the same in court within six months from the date of the decree.
3. The decree holder thereafter filed I.A.No.6051/99 for communicating the order and forwarding the records produced by him to the Arbitrator. The said IA was allowed on 12/12/2001. The court below ordered that the Arbitrator shall complete the arbitration and shall file the award before the Sub Court within six months from the date of receipt of the communication ordered in IA.No.6051/99. The Arbitrator conducted an enquiry and an award was passed on 18/12/2003. After passing the award, the decree holder filed E.P.No.61/04 for execution of the award. The said E.P. was withdrawn with permission from the court below to file a fresh execution petition, when the respondent challenged the excitability of the award while an application under Section 34 of the Act is pending. Thereafter E.P.No.104/05 was filed for execution.
4. The respondent filed objection stating that the Arbitrator was appointed not under the Arbitration and Conciliation Act, 1996; but was appointed under Section 20 of the Arbitration Act, 1940 and the Sub Court has directed the Arbitrator to file the award before the Sub Court within six months and therefore it was incumbent upon the Arbitrator to file the Arbitral award before the Sub Court for approval. Since the Sub Court has not approved the arbitral award under the provisions of the Arbitration Act, 1940, the decree holder is not entitled to execute the award.
5. Originally, the court below rejected the preliminary point raised by the respondent regarding the maintainability of the execution proceedings and directed the decree holder to proceed with the execution of the award. In CRP.No.461/06 filed by the respondent, this Court set aside the order and directed the court below to re-consider the matter and decide whether the parties have given their consent to proceed under Section 85(2) of the Arbitration and Conciliation Act, 1996. This Court further observed that the mere fact that the Arbitrator had made a statement in the award to the effect that he had proceeded under the Arbitration and Conciliation Act, 1996 alone is not a ground to hold that the parties have given their consent under Section 85 (2)(a) of the Act. After remand, the decree holder was examined as PW-1 and marked Exts.A1 to A3 on his side. The documents pertaining to the arbitration proceedings were marked as Exts.C1 to C19. The maintainability of execution petition and the question of consent under Section 85(2)(a) of the Arbitration and Conciliation Act 1996 was re-examined by the court below. After elaborately discussing the issue, the court below held that the execution petition is not maintainable and further directed that the parties should take steps to direct the Arbitrator to file his award before the Sub Court for approval under the provisions of the Arbitration Act, 1940. The short but the important question arises for consideration by this court is did the parties to the execution petition consent to proceed under Section 85(2)(a) of the Arbitration an Conciliation Act, 1996. Section 85(2)(a) of the Arbitration and Conciliation Act reads as follows:
"Repeal and Saving:-
.(1) TheArbitration (Protocol and Convention) Act, 1937 (VI of 1937), the Arbitration Act, 1940 (X of 1940) and the Foreign Awards (Recognition and Enforcement Act), 1961 (XLV of 1961) are hereby repealed.
.(2) Notwithstanding such repeal,-
.(a) theprovisions of the said enactment shall apply in relation to arbi
