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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Janki Nath Bhat,Mian Jalal-ud-Din, JJ.
Union Of India - Appellant
Versus
Mohinder Singh & Co. - Respondent
LPA No. 6 And 8/1970
Decided On : 03 April, 1970
ARBITRATION ACT - SECTION 39, 41 - CONSENT ORDER - APPEALABILITY - SECTION 96 OF THE CIVIL PROCEDURE CODE - ESTOPPEL - SECTION 16 OF THE ARBITRATION ACT - ERROR APPARENT ON THE FACE OF THE AWARD - PRINCIPLES OF NATURAL JUSTICE - USE OF INADMISSIBLE EVIDENCE - RELIANCE ON PRIVILEGED DOCUMENTS.
Fact of the Case:
An application was filed by M/s Sardar Mohinder Singh and Co. on 12-8-1989, in the High Court, requesting the court to make an award, given by one Mr. T. B. Bhonsla, arbitrator, appointed in the case to settle the dispute between the said company and the Union of India, a rule of the court. Another application by the Union of India was made on 9-10-1969 under Section 33 of the Arbitration Act for setting aside the award. Both the petitions were heard simultaneously by a learned single Judge (Honble Mr. Justice Jaswant Singh) of this court. Elaborate arguments were addressed by the learned counsel for the parties before His Lordship in both these applications. But -Mr. Amar Chand, learned counsel for the Union of India, made a statement on 15-12-1969 to the effect that the respondent i. e. the Union of India "will have no objection if the award in so far as it relates to the amount awarded in favour of the petitioner i.e. M/s Mohinder Singh and Co. is remitted to Mr. T. B. Bhonsla for re-consideration after recording and scrutinising the statement of Mr. D. K. Malhotra, Executive Engineer, at present posted in Nepal, who will be produced by my client before the arbitrator within one month from today." When this statement was made the counsel for the petitioner i. e. M/s S. Mohinder Singh, agreed to this course being adopted. Thereupon His Lordship directed that the award be remitted to the arbitrator to examine Mr. D. K. Malhotra, mentioned in the statement of Mr. Amar Chand and further directed the arbitrator to reconsider the award after this statement and resubmit the award by the 30th January, 1970. Against this order, a letters patent appeal was preferred by the Union of India in this court. At the time of the admission of the appeal, a stay was granted by the Bench admitting the appeal. Later on M/s Mohinder Singh and Company also preferred an appeal.
Finding of the Court:
The court held that the appeal was not maintainable as it was a consent order and as such it was not appealable under Section 96 of the Civil Procedure Code. The court further held that the order under appeal did not fall within any of the categories of Section 39 but could be brought under section 16 against which there is no appeal. The court also held that the arbitrator was not wrong in not recording the statement of Mr. D. K. Malhotra as it was not an error apparent on the face of the award.
Issues: 1. Whether the appeal was maintainable as it was a consent order? 2. Whether the order under appeal fell within any of the categories of Section 39? 3. Whether the arbitrator was wrong in not recording the statement of Mr. D. K. Malhotra?
Ratio Decidendi: 1. A consent order is not appealable under Section 96 of the Civil Procedure Code. 2. The order under appeal did not fall within any of the categories of Section 39. 3. The arbitrator was not wrong in not recording the statement of Mr. D. K. Malhotra as it was not an error apparent on the face of the award.
Final Decision: The appeal was dismissed.
2. The main grounds of the appellant taken in the appeal presented by the Union of India are that the arbitrator had mis-conducted himself, that he had not taken the whole of the evidence that the Union of India would have produced, that certain documents were admitted by the arbitrator without their being proved, that certain documents were entertained by the arbitrator which vitiated the entire proceedings, that the counsel for the appellant under some misconception conceded the remission of the award without considering the consequence flowing therefrom without seeking instructions for this purpose. The appeal of M/s S. Mohinder Singh inter alia mentions the following grounds:
That as the order of the learned single Judge dated 15-12-1989 was passed with the consent of the counsel for the parties no appeal would lie but if the Division Bench, which would hear the letters patent appeal, come to the conclusion that an appeal would lie then a decree may be passed in terms of the award. The other grounds taken in the appeal are not material for the disposal of this letters patent appeal.
3. Mr. Raina, the learned Advocate General, appearing for the Union of India, addressed long arguments. The crux of the arguments of Mr. Raina was that the arbitrator had misconducted himself. He had first held certain documents to be privileged and later on allowed Sardar Mohinder Singh and Co. to rely on these document. This decision of the arbitrator was therefore vitiated as his award was based both on admissible and inadmissible evidence. He further argued that the award was given by the arbitrator ignoring and violating the principles of natural justice.
4. A preliminary objection was taken by the learned counsel for M/s Mohinder Singh and Company that the order remitting the award to the arbitrator for further proceedings was a consent order and as such it was not appealable under Section 96 of the Civil Procedure Code. Mr. Raina, Advocate General, however, argued that under section 41 of the Act Civil Procedure Code would apply when the provisions of the Arbitration Act or the rule
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