Murari Lal vs Gopal Chand and Others

This petition is directed against the trial Court''s order made on the 2nd February. 1967. Gopi Chand the principal respondent to this petition. filed on application dated the 23rd July, 1966 under Sections 11. 12 and 30 of the Indian Arbitration Act (here-after called the Act) and the said application was registered as suit N. 272/ 1966. It was alleged by respondent No. 1 in the said application that respondent No. 1 ( the petitioner before me) appointed respondents Nos. 3 to 5 as arbitrators and the said arbitrators having not made the award within the period prescribed by law and having misconducted the proceedings were liable to be removed. It was prayed that the authority of the arbitrators to act in the matter under reference be revoked. proceedings taken before them. be declared null and void and they may be removed. Another prayer was that fresh arbitrator or arbitrators may be appointed by the Court to decide the dispute. Along with the said application. respondent No. 1 filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code. The typed date on that application "23rd July. 1966" seems to have been changed later on into "25th July. 1966". The trial Court passed an order granting that application, but. it transpired that the award had been made by the arbitrators allegedly on the 18th July. 1966. on a date prior to the institution of the application out of which this litigation arises.

Subsequently another application was filed by respondent No. 1 to this petition. That was filed u/s 30 of the Act read with Section 151 of the Civil Procedure Code. In that application after narrating certain facts respondent No. 1 alleged that the arbitrators had made a illegal antedated award. The prayer was that the said award be declared void and be set aside. In order to claim that relief. respondent No. 1 stated the grounds in that application on the basis whereof he was seeking it. He also filed an application under Order 6, Rule 17 of the CPC to amend the application which had been registered as suit No. 272/1966. The trial Court dealt with the application for amendment as well as with the two other applications. the second of which filed u/s 30 of the Act under the date 16th November 1966 was registered as suit No. 489/1966.

The litigation presented a significant aspect inasmuch as after the filing of the application under Sections 11. 12 and 30 of the Act the assertion became visible that an award had been made prior to the filing of the said application. The application registered as suit No. 489/1966 was rightly filed for impugning the award which had allegedly been made as mentioned above.

It has been contended by the learned counsel appearing for the petitioner that as soon as it became clear that an award had been made. the trial Court lost the jurisdiction to deal with the application filed under Ss. 11. 12 and 30 of the Act. His submission is that once the contention was raised that an award had been made. the remedy left with respondent No. 1 was that of invoking Sections 30 and 33 of the Act. It is to be noticed that Section 30 had been invoked in the very first instance. Be that as it may, Section 30 is mentioned in the first application as an addition in and ink after the typed words "Sections 11 and 12" and the application registered as suit No. 272/1966 does not contain any prayer for setting aside any award. The addition of "30" in ink is uninstalled and the application u/s 30 of the Act could have been originally filed only on an averment that an award had been made. The application registered as suit No. 272/1966 does not ensure for the purpose of Section 30 of the Act I. however. do not accept the submission that by raising a controversial plea that an award had been made on the 18th July, 1966 before the filing of the application, the petitioner succeeded in depriving the trial Court of its jurisdiction to deal with the application competently filed later on and registered as suit No. 489 of 1966. That application was based on the assertion that an alleged illegal award had been made on the 18th July, 1966 and was filed for obtaining the relief that the alleged award be set aside.

In order to support his submission that the award having once been made. the trial Court should have dismissed the application filed under Sections 11. 12 and 30 which had been registered as suit No. 272/1966 the learned counsel for the petitioner has drawn my attention to Section 19 of the Act:--

"Where an award had become void under sub-section (3) of Section 16 or has been set aside. the Court may by order supersede the reference and shall thereupon order that the arbitration agreement order that the arbitration agreement shall cease to have effect with respect to the difference referred."

The authority given to the Court is that where the award is found to have become void under sub-section (3) of Section 16 or is otherwise set aside the Court may supersede the reference and in case of such supersession the arbitration agreement shall cease to have effect with respect to the differences which may have been referred to arbitration. That provision does not at all touch the jurisdiction of the Court to deal with an application filed under Sections 11 and 12 of the Act. The learned counsel appearing for the petitioner has cited 1. Juggilal Kamlapat (In C. A. No. 309 of 59) and 2. Juggilal Kamlapat Vs. General Fibre Dealers Ltd. (And Connected Appeal), and has placed reliance on the observation made in paragraph 15 of the judgment. The Supreme Court found that the award had been set aside on account of misconduct. It observed that the award although void. the arbitration agreement subsisted and it was open to "the Chamber" on the request of the respondent to appoint another arbitral tribunal. The Supreme Court did not deal with the authority of the court to appoint other arbitrator or arbitrators under Sections 11, 12 and 30 of the Act registered as suit No. 272/1966 alive. I am of the view that the application will come in for consideration only on the adjudication that the award is liable to be set aside. After disposing of suit No. 489/1966 if the trial Court sets aside the award. it will be only in that contingency that it will be attend to the relief claimed through suit No.272/1966, which will be limited to the consideration whether fresh arbitrators should be appointed or not. With these observations, the petition is disposed of.

The parties are directed to appear before the trial Court on the 23rd December, 1972. Record be sent back immediately. There will be no order as to costs.

Order accordingly.