FINANCIERS AND FIBRE DEALERS LTD Vs. SANKARLAL SARDAR
HIGH COURT OF CALCUTTA
FINANCIERS AND FIBRE DEALERS LTD.
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P.C.Mullick, J. -
(1.) This is an application to challenge an award. It is prayed that either the award be adjudged void or set aside.
(2.) The facts relevent for this application are short and simple. A suit, being Suit No. 785 of 1958 was instituted by two of die parties to this proceeding in this Court against others on 29th/30th May, 1958. During the pendency of this suit, on June 23, 1938, the parties entered into a writer agreement, whereby the disputes in suit were agreed to be adjusted by arbitration of Srichand Bothra and the said suit was agreed to be withdrawn. Pursuant to this agreement, the disputes in suit were referred to the arbitration of Srichand Bothra, who acted under the reference, issued notice on July 3, 1958, and held a meeting on July 6, 1958, before the suit was withdrawn on July 7, 1958. Subsequent to the withdrawal of the suit, there were further proceedings and on August 26, 1958 the award was made. The important fact to note is that there was no order of reference under Section 23 of the Indian Arbitration Act. Mr. Rathin Deb learned Counsel appearing in support of this application contended that the absence of an order under Section 23 of the Arbitration Act vitiates the whole proceeding and the award must be adjudged a nullity. In his submission a reference in a pending suit can Only be made by an order of the Court under Section 23 of the Arbitration Act & in the absence of such an order of reference, the arbitrator had no jurisdiction to enter upon the submission and make an award, even though there is an agreement for reference. The whole proceeding before the arbitrator, including the award, must in consequence be adjudged void as being a proceeding without jurisdiction under the Indian Arbitration Act. This is the only point taken by Mr. Deb in support of his application to challenge the award.
(3.) Dr. Das appearing to oppose the application disputed this contention of Mr. Deb. He further submitted that all parties, including the petitioner, not merely accepted the award but the award has also been acted upon. If there was any irregularity, the petitioner waived it and he is estopped now from challenging the validity of the award.;
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