"C.R."

1. Could an Arbitrator appointed in terms of an agreement between the parties set aside an exparte award after it is signed, is the question urged for a decision in this Writ Petition.

2. Under terms of an agreement executed between petitioners and respondents and in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (for short, "the Act") the dispute between them was referred to the sole Arbitrator. The Arbitrator passed an award. Petitioners, claiming that the award was passed without notice to them filed application before the Arbitrator to set aside the award accompanied by an application to condone the delay in filing that application. The Arbitrator, observing that he has no power to set aside the award dismissed both the applications. Petitioners wanted to challenge that order before the learned District Judge. Petitioners state that their appeal petition was not received in the office of learned District Judge. Hence this Writ Petition praying that learned District Judge may be directed to receive Ext.P3, appeal petition and Ext.P4, application for stay and proceed with the same in accordance with law. Learned counsel for petitioners, placing reliance on the decisions in Thankam R.Pillai v. Arbitrator (1996 (1) KLT 225) and Paul v. Asst. Registrar (1998 (2) KLT 449) argued that the Arbitrator the power to set aside an exparte award and hence decision of the Arbitrator to the contra is illegal which is amenable to an appeal before the learned District Judge. The Office of learned District Judge was therefore not correct in refusing to receive on file Exts.P3 and P4.

3. In Thankam R.Pillai v. Arbitrator (supra), a Division Bench of this Court referring to the decision in Cheru Ouseph v. Kunhipathumma (1981 KLT 495) among other decisions, and concerning power of the Arbitrator under Section 70 of the Kerala Cooperative Societies Act, 1969 (for short, "the Co-operative Societies Act") held that " a Tribunal in its wider connotation embraced every adjudicatory organ including an Arbitrator". There the question considered was whether the Arbitrator acting under Section 70 of the Co-operative Societies Act has power to order impleadment of a legal heir on the death of a party to the proceeding before such Arbitrator. Referring to the various decisions it was held that the Arbitrator has the power. It was observed that a Tribunal literally means a seat of justice and justice is dispensed by a quasi-judicial body, an Arbitrator, a Commission, a Court or other adjudicatory organ created by the State. Following that decision, in Paul v. Asst. Registrar (Supra) again dealing with an award passed by the Arbitrator under the Co-operative Societies Act and the relevant Rules it was held that the Arbitrator has power to set aside an exparte award. Learned Judge took the view that the power conferred on the Arbitrator under rule 67(4) (a) of the Rules enabled him so far as there is no restriction, to set aside an exparte award.

4. A statutory arbitration is distinct from a consensual arbitration. Russel On Arbitration, 20th Edn. (by Anthony Walton and Mary Victoria) at page 141 states that a statute may provide that disputes of a particular class shall be determined by arbitration of a particular sort, either in every case or upon certain steps being taken by the parties. Where such a provision applies, the arbitral Tribunal laid down by the Statute has exclusive jurisdiction over such disputes. But a consensual arbitration is the result of agreement between the parties. Quoting from Wood v. Leake [(1806) 12 Ves. 412] Russel says at page No.262 (of the text above mentioned) that every Arbitrator is authorised, by the nature of his office to proceed exparte for good cause and that it is unnecessary, though not unusual to give him that power in express terms in the submission. Quoting the power of an Arbitrator on reference under the order of the court (from Wenlock v. River Dee Co. -[(1883) 53