Subhash Chander vs Ghanshayam Dass

Rakesh Kumar Jain, J.—This revision petition is directed against the order dated 24.04.1990 by which appeal filed by respondent No. 1-Ghanshayam Dass against the order dated 27.07.1988, by which award of the Arbitrator was made rule of the Court, has been allowed. As per the facts narrated by learned counsel for the petitioner, a pre-emption decree was passed in favour of the respondents on 28.09.1982 against which he had preferred an appeal. During the pendency of that appeal, both the parties entered into an agreement on 28.11.1982 at their own for the purpose of referring the dispute to the Arbitrator. The Arbitrator announced his award as per which respondent No. 1 was to give Rs. 14,000/- to the petitioner and thereafter he was to withdraw his appeal. However, respondent No. 1 did not abide by the award and rather filed objection when the application was filed by the petitioner for making award of the Arbitrator rule of the Court. The said objection was dismissed by the Trial Court on 27.07.1988 against which respondent No. 1 filed his appeal. The petitioner has been non-suited by the lower Appellate Court only on the ground that as per Section 21 of the Arbitration Act, 1940 (here-in-after referred to as the "Act"), the parties had no jurisdiction to refer the matter to the Arbitrator as the reference could have only be made through the Court.

Learned counsel for the petitioner has argued that once there was an agreement between the parties on 28.11.1982 for referring the matter to an Arbitrator in which respondents No. 6 and 7 were also entered as guarantors, award was passed as per which Rs. 14,000/- were to be paid by respondent No. 1 to the petitioner so that the matter could have been settled between the parties by withdrawing the appeal filed against the judgment and decree dated 28.09.1982, but due to dishonest intention of respondent No. 1, the petitioner had to file the application under Section 34 of the Act which too was allowed, but he has been non-suited only on the technical ground that the Arbitrator could have been appointed only through the Court and not by the consent of both the parties.

Though the argument raised by learned counsel for the petitioner appears to be very attractive, but it runs contrary to the statutory provisions of Section 21 of the Act. Counsel for the petitioner otherwise could not cite any law to overcome this difficulty that the Arbitrator could be appointed only through the Court when the appeal is pending. In view thereof, I do not find any error in the impugned order passed by the Court below and hence, the present revision petition is dismissed being denuded of any merit therein.