CHANDY Vs. MATHEW
LAWS(KER)-1963-10-25
HIGH COURT OF KERALA
Decided on October 30,1963

CHANDY Appellant
VERSUS
MATHEW Respondents


Referred Judgements :-

EAST INDIA TRADING CO NEW YORK VS. BADAT CO BOMBAY [REFERRED TO]


JUDGEMENT

- (1.)AN arbitration agreement stands on the same footing as any other agreement. It cannot bind a party affected by fraud, coercion or undue influence in its making, and can be avoided like other such agreements. Subsequent to the execution of the agreement, no proceedings appear to have been taken by the arbitrator till July 11, 1951, when he notified the parties of his intention to declare the award. The agreement did not specify the dispute that was to be arbitrated upon. No statement was taken from the parties by the arbitrator, nor any issue framed, nor evidence taken, nor parties heard. He appears to have thought himself in the know of everything concerned and the award appears to have been spontaneous with him. Without any evidence whatever he could find Ext. 0 vitiated by undue influence on the part of the respondent. That is a fact which nobody else could have decided without proof. The executant, who was none other than the father of both the disputants and the admitted owner of the properties concerned was quite hale then. Even he was not asked of any information by the arbitrator. Arbitration proceedings are judicial proceedings; and if a matter has been decided on mere personal knowledge without hearing the parties, it cannot be a judicial proceeding at all. On the first occasion when anything like a proceeding on the arbitration agreement was notified, the respondent had challenged the jurisdiction of the arbitrator and the validity of the arbitration agreement. It was not open to the arbitrator to decide on the validity of the arbitration agreement to find his own jurisdiction. In East India Trading Go. v. Eadat and Co. (AIR. 1959 bombay 414, 420) Chagla C. J. with concurrence of S. T. Desai J. , observed: "the principle of the matter is that when a party denies the arbitration agreement, the very basis on which the arbitrator can act is challenged and therefore the Courts have taken the view that in such a case the arbitrator has no jurisdiction to decide whether he himself has jurisdiction to adjudicate upon the dispute. " He ought to have referred the parties to court under s. 20. He did nothing of the sort but proceeded to impose his award upon the resistant party.
(2.)THAT the arbitration agreement, Ext. B, was the result of a Satyagraha conducted by the appellant, his sons and sisters for a week in the house where the respondent was living with the father is admitted by both sides. The court below has found that the appellant ". obstructed the jewel-box and brought about Ext. B agreement. " The evidence is clear that the Satyagraha had taken a violent turn and that the agreement, that came out of it, was the result of coercion thereunder. There is nothing to show that the respondent has ever ratified the agreement. On the other hand, on the first occasion he was intimated that the submission will be proceeded with, he has promptly repudiated it. As it was voidable and has been avoided it became void and the award which came out of it, after its express avoidance with notice to the arbitrator, was without jurisdiction. The setting aside of the award by the court below was fully justified in the circumstances. There is no merit in these appeals which are therefore dismissed. In the circumstances of the case there will be no order as to costs in these appeals. Dismissed.
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