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1997 Supreme(MP) 382
1998 (2) JLJ 152
S.K. Dubey and S.P. Khare, JJ.
Pushpendra Singh v. Commercial Automobiles
Miscellaneous Appeal No. 469 of 1988; against order of Shri S.B. Minj, 4th
Addl. District Judge, Jabalpur, passed in Civil Suit No. 210A of 1987;
Decided on 9.7.1997.
P.N. Dubey for appellant; Ravish Agarwal for respondent.
Headnote:(1) Arbitration Act, 1940 -- S. 42 -- summons sent by registered acknowledgment due as provided in agreement -- is a valid service. [Para 6
(2) General Clauses Act, 1897 -- S. 27 -- summons sent through registered acknowledgment due -- undelivered due to non-availability of addressee -service will be deemed to have been duly effected. AIR 1989 SC 630 followed. [Para 6
(3) Arbitration Act, 1940 -- S. 2 Sch. I para 3 -- four months time to make award -- starts from entering in to controversies judicially -- order of ex parte is a judicial order -- time would start to run from that date. 1962 JLJ 1099 and AIR 1950 Lah 174 relied on. [Para 8 & 9
(4) Arbitration Act, 1940 -- Ss. 28 and 33 -- time for making the award -can be extended by Court in proceedings under S. 33 -- appellate Court may also extend such time -- extension of such time may be ordered with restrospective effect and even without application. AIR 1985 SC 920 and (1989) 4 SCC 93 followed. [Para 10
(5) Arbitration Act, 1940 -- S. 4 -- named arbitrator -- reference may be made by anyone of the parties to arbitration agreement -- no consent of other party is necessary. [Para 11
(6) Contract Act, 1872 -- S. 74 -- provisions under -- apply to hire purchase agreement -- damage and compensation by way of penalty -- cannot be awarded by arbitrator. AIR J 963 SC 1405 and AIR 1987 SC 1257 followed. [Paras 13 to 17
(7) Arbitration Act, 1940 -- Ss. 33 and 39 (vi) -- arbitrator not following law in passing award -- error apparent on the face of the award -- may be corrected by Court -- arbitrator is not a conciliator. AIR 1955 SC 468 followed. [Para 18
(8) Partnership Act, 1932 -- S. 37 -- award of interest in defiance of this provision -- mistake becomes apparent on face of the record. AIR 1985 SC 358 followed. [Para 19
(9) Arbitration Act, 1940 -- S. 30 -- words "or is otherwise invalid" as used under -- wide enough to cover all forms of invalidity. AIR 1976 SC 1745 followed. [Para 20
(10) Arbitration Act, 1940 -- S. 39 – appeal under -- invalid part of the award -- may be set aside. [Para 21
¼1½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 42 && leu] djkj esa ;Fkk micaf/kr] jlhnh jftLVªh Mkd }kjk Hkstk x;k && fof/kekU; rkehy gSA ¿ iSjk 6À
¼2½ lk/kkj.k [kaM vf/kfu;e] 1897 && /kkjk 27 && leu] jlhnh jftLVªh Mkd }kjk Hkstk x;k && izsf"krh dh vuqiyC/krk ds dkj.k ifjnku ugha gqvk && rkehy lE;d~ :i ls gqbSZ le>h tk,xhA , vkb vkj 1989 ,l lh 630 vuqlfjrA ¿ iSjk 6À
¼3½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 3] vuqlwph 1] iSjk 3 && iapkV djus ds fy, pkj ekl dk le; && lafookn U;kf;d :i ls izkjaHk gksus ls izkjaHk gksrk gS && ,di{kh; fd, tkus dk vkns‘k U;kf;d vkns‘k gS && le; ml fnukad ls izkjaHk gks tk,xkA 1962 ts ,y ts 1099 rFkk , vkb vkj 1950 ykgkSj 174 voyafcrA ¿ iSjk 8 rFkk 9À
¼4½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 28 rFkk 33 && iapkV djus ds fy, le; && U;k;ky; }kjk /kkjk 33 ds v/khu dk;Zokgh esa c<+k;k tk ldrk gS && vihy U;k;ky; Hkh ;g le; c<+k;k tk ldrk gS && ;g le; Hkwry{kh izHkko ls vkSj fcuk vkosnu fd, Hkh c<+k;k tk ldrk gSA , vkb vkj 1985 ,l lh 92 rFkk ¼1989½ 4 ,l lh lh 93 vuqlfjrA ¿ iSjk 10À
¼5½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 4 && ukfer e/;LFk] ek/;LFke~ djkj ds fdlh i{kdkj }kjk funsZ‘k fd;k tk ldrk gS && nwljs i{kdkj dh lgefr vko‘;d ughaA
¿ iSjk 11À
¼6½ lafonk vf/kfu;e] 1872 && /kkjk 74 && mica/k && voØ; djkj ij ykxw gksrs gSa && ‘kkfLr es ek/;e ls uqdlkuh vkSj izfrdj && e/;LFk }kjk vf/kfu.khZr ugha fd, tk ldrsA , vkb vkj 1963 ,l lh 1405 rFkk , vkb vkj 1987 ,l lh 1257 vuqlfjrA
¿ iSjk 6À
¼7½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 33 rFkk 39 (vi)&& e/;LFk }kjk iapkV ikfjr djus easa fof/k dk vuqlj.k ugha && iapkV dks ns[krs gh izdV xyrh gS && U;k;ky; }kjk ‘kq) dh tk ldrh gs && e/;LFk lqyg djkus okyk ugha gksrkA , vkb vkj 1955 ,l lh 468 vuqlfjrA ¿ iSjk 18À
¼8½ Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 37 && C;kt dk vf/kfu.kZ; bl mica/k dh voKk esa && xyrh vfHkys[k dks ns[krs dh izdV gks tkrh gSA , vkb vkj 1985 ,l lh 358 vuqlfjrA ¿ iSjk 19À
¼9½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 30 && ;Fkk iz;qDr ‘‘kCn **;k vU;Fkk vfof/kekU; gS** && vfof/kekU;rk ds leLr :i vkPNkfnr djus ds fy, i;kzIr :i ls O;kid gSA , vkb vkj 1976 ,l lh 1745 vuqlfjrA ¿ iSjk 20À
¼10½ ek/;LFke~ vf/kfu;e] 1940 && /kkjk 39 && vihy && iapkV dk vfof/kekU; Hkkx && vikLr fd;k tk ldrk gSA ¿ iSjk 21À
Khare, J. -- 1. This is in appeal under section 39 (vi) of the Arbitration Act, 1940 (hereinafter to be referred to as the Act) against the order reducing to set aside the award dated 15.10.1987 and taking it a rule of the Court.
2. It is not in dispute that respondent commercial Automobiles, Jabalpur financed truck no. MBA-4022 under the hire purchase agreement dated 11.3.1983 (Ex. P-2) entered into with the plaintiff. The price of the truck was Rs. 1,74,697/-. The defendant paid an amount of Rs. 54,697/- in cash. The plaintiff advanced an amount of Rs. 1,20,000/-. Interest at the rate of 18% per annum for a period of three years amounting to Rs. 64.800/- was added to the principal sum. A sum of Rs. 9,376/- was added towards insurance premium. Thus the total amount worked out to Rs. 1,94,176/-. This amount was made payable in 35 monthly instalments. The defendant committed default in paying certain instalments. He paid a total amount of Rs. 77,500/-. The plaintiff referred the dispute to the abitrator as per arbitration clause in the agrement. This reference was made on 27.3.1987. The arbitrator issued notice to the defendant by registered post and the matter was fixed for hearing on 29.4.1987. As the notice was not received back served or unserved another attempt was made. Again a notice was sent by registered A.D. post and the next date which was fixed for hearing was 23.9.1987. This notice came back with an endorsement ''left without address". The arbitrator treated it valid service as per terms of the agreement and proceeded exparte against the defendant. He passed an award on 15.10.1987. He awarded an amount of Rs. 1,96,747.76 paise on account of "overdue instalments, insurance charges and compensation upto 31.1.1987" and further damages for unauthorised use of vehicle at .the rate of Rs. 376/- per day with effect from 28.2.1987. The plaintiff was held entitled to take back possession of the vehicle.
3. The defendant challenged this award by filing an application under section 33 of the Act. It was alleged that (a) the arbitrator committed misconduct within the meaning of Section 30 of the Act in as much as he proceeded exparte without proper service of notice on the defendant. (b) the award was made beyond a period of four months of entering upon the reference (c) there could not be unilateral reference of the dispute without the consent of the defendant. (d) the award was perverse and without application of judicial mind.
4. The Court rejected the aforesaid objections and passed a decree in terms of the award.
5. In this appeal the grounds taken in the application under Section 33 of the Act. have been reiterated. Therefore this Court wilt deal with the objection ad-seriatum.
6. Point (a)
There were two attempt to serve notice on the defendant by registered A.D. post. The first notice came back undelivered. The second notice also came back with the endorsement' 'left without address". It is found that the notice was sent to the defendant on his address given in the hire-purchase agreement. Clause VI (c) of this agreement provides: "The notice sent by the arbitrator to the parties by registered post at the addresses mentioned in the hire-purchase agreement will be considered sufficient service on the parties whether such notice is received by them or not or is refused or is returned undelivered". Section 42 of the Act provides that a notice required to be served by an arbitrator shall be served in the manner provided in the arbitration agreement Section 27 of the General Clauses Act. 1897, in such a case service will be deemed to have been effected (See AIR 1989 SC 630). The arbitrator made two attempts to serve the notice. It was the duty of the defendant to see that notices sent at his address are received by him or on his behalf when he was not available at the address which he gave while signing the agreement. In case his address had changed he should have given its notice to his financier so that notice could be s
