Decided on October 04,1969

OM PRAKASH Respondents


- (1.) THIS Is an appeal by the plaintiffs from a decision of the IV Additional District judge, Jabalpur, dated 16th February 1968, arising out of proceedings instituted by them under Section 30 of the Arbitration Act, for the setting aside of an award.
(2.) THE relevant facts leading to the appeal are these. By an agreement dated 31st march 1965, the plaintiffs had covenanted to purchase from the defendant, his five storeyed building which was under construction at Napier Town, Jabalpur, for a sum of Rs. 1,55,103/- and in pursuance thereof, paid Rs. 10,101/-as part of the price. It stipulated that the defendant was to execute a sale deed within 4 months from the date of agreement, during which he was also to complete the construction work then in progress, e. g. , installation of electricity for pumping of water to the upper floors, affixing of fittings and fixtures, distempering of walls and polishing of floors, etc. The transaction of sale was, however, never completed and disputes arose between the parties, each complaining of the other of breach while signifying his own willingness to fulfil his part of the contract. Eventually, the parties appear to have abandoned the contract, and having done so, referred their dispute to the sole arbitration of one Seth Ramkumar, by their agreement in writing dated 31st July 1965. The reference to arbitration required the arbitrator to determine two questions: firstly, which of the parties had committed a breach of the contract, and, secondly, what were the damages payable to the injured party by the party responsible for the breach. By an award dated 30th November 1965, the arbitrator found the plaintiffs to be guilty of the breach complained of and has accordingly directed the forfeiture of the amount of Rs. 10,101/- paid by them, treating the same as earnest money. The arbitrator, however, directed that if the plaintiffs were so inclined, they could still have a conveyance of the property, on payment by them of the balance amount of Rs. 1,45,000/- within 2 months of the date of his award. The plaintiffs apparently did not want any specific performance of the contract and only wanted their money back and, therefore, applied for setting aside of the award under section 30 of the Arbitration Act. The learned Judge has only set aside that part of the award by which the arbitrator had provided for a completion of the sale, upon payment of the balance of the price, on the ground that such a direction was beyond the terms of reference and hence Illegal. As to the rest, he was of the view that the award of the arbitrator holding that the plaintiffs were in breach and, therefore, the amount of Rs. 10,101/-deposited by them was liable to be forfeited, was binding on the parties and could not be set aside for the reason that there were no grounds made out for its being set aside under Section 30 of the arbitration Act.
(3.) THE respondent has raised a preliminary objection as regards the maintainability of the appeal. The argument of Shri P. R. Naolekar, learned counsel proceeds on these lines. It is argued that there were two separate orders--one refusing to set aside the award, and the other making it a rule of the Court and, therefore, appeals should have been filed against both the orders. The decisions in shivramprasad v. Gokulprasad Parmeshwardayal, ILR (1958) Madh Pra 570 = (AIR 1959 Madh Pra 102) and Beniprasad Dixit v. Krishna Murari, F. A. No. 121 of 1957, D/- 11-10-1960 (Madh Pra) are said to be distinguishable because they concerned a composite order. It is also urged that the decree not being in conformity with the award, an appeal lay under Section 17 of the Arbitration Act; and, that the order refusing to set aside the award had merged in the decree and since there was no appeal filed against the decree, the appeal against the order refusing to set aside the award under Section 30 was not appealable under Section 39 (1) (vi) of the Act. These contentions are wholly unfounded and cannot be accepted.;

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