CAV JUDGMENT

Date: 9-02-2016

M.A. No.592 of 2011 wherein Ranjeet Kumar Singh is the appellant while M.A. No.594 of 2011 wherein Ajit kumar Singh is the appellant have been brought up against an order dated 23.04.2011 passed by Sub-Judge, Ist, Bhagalpur in Misc. Case No.28 of 1982 on account thereof, with the consent of the learned counsels have been heard analogously and are being decided by a common judgment. .

2. It is apparent that the learned lower court of Sub-Judge, Ist, Bhagalpur vide order dated 23.04.2011 passed in Misc. Case No.28 of 1982 accepted the award and made it rule of the court, the subject matter of these two appeals.

3. Shorn of unnecessary details, it is evident that rival parties happens to be full brother who, to have amicable partition of their ancestral property agreed for appointment of Dr. Ayodhya Prasad Singh, their maternal uncle to be the sole arbitrator and for that, having entered into a registered agreement dated 26.05.1973. The sole arbitrator, after his nomination took the issue, got partitioned the properties amongst the brothers in terms of award dated 23.11.1976 with its clarification vide dated 26.12.1976 as well as 13.05.1977 and placed it before the court as required under the Arbitration Act,1940 whereupon, these two appellants put an objection on various grounds to nullify the award which, by the order impugned, have been negativated by the learned lower court and made the award rule of the court. Hence this appeal.

4. In support of their plea, it has been submitted by the learned counsel for the appellants that the learned lower court acted against the mandate of law while brushing aside the objections raised on their behalf. The first and foremost argument happens to be that arbitrator neither happens to be witness nor a party. The award which was required to be filed in terms of Section 14(2) of the Arbitration Act, 1940, which was prevalent at the time of inception of arbitration proceeding, was only to have seal of the court by way of making it as rule of the court. While the award was filed by the arbitrator, it was drawn up on his name and further, he was examined by the Court just after filing of award before appearance of the respective parties. The aforesaid eventualities were not at all required under the statute therefore, since inception of the proceeding the learned lower court chosen a wrong path which, bound to affect the ultimate result. In its continuity, it has been submitted that once proceeding was drawn up in name of arbitrator who subsequently died, then, in that event, on account of non substitution of the party the proceeding was to abate.

5.On this score, it has also been submitted that learned lower court had wrongly interpreted that once at an earlier occasion it was observed by predecessor that proceeding was maintainable and as the same was not challenged on account thereof, met with finality, hence, the chapter was not open to challenge. Maintainability of the proceeding is a legal issue which could be taken up at any stage, at any time and the court is bound to entertain the same. Hence, as per submission made on their behalf, the proceeding lost its identity on account of illegality committed since inception of the proceeding.

6.Then it has been submitted that arbitrator had acted in partisan as well as collusive manner going to the camp of Dr. Aditya Narayan Singh and to substantiate the same so many factual aspects have been placed. In likewise manner propriety of the award has also been challenged.

7. With regard to propriety of the award, it has been submitted that award has to be filed within stipulated period of four months as per Rule-3 of Schedule-Ist of the Arbitration act while it has been filed after more than three years without having extension of period by a competent court on a prayer made on behalf of arbitrator and on account thereof, it happens to be barred by limitation whereupon the award in question became nonest in the eye of law.

8. It h