Decided on March 05,1970

Bankelal Singh Appellant
Ganesh Narain Brijlal Pvt. Ltd. Respondents


Syed Sadat Abdul Masud, J. - (1.) This is an application for setting aside an award dated March 7, 1968, made by Mr. S. Tibrewalla, Barrister -at -law.
(2.) The circumstances under which this application has been made arc stated as follows: On October 6, 1964, the Petitioner approached Ganesh Narayan Brijlal Pvt. Ltd., the Respondent No. 1, to secure a new lorry chassis and also for financing the Petitioner in purchasing the said lorry. Thereafter an agreement was made to the said effect on terms mentioned in para. 1 of the petition. Sitablal Singh, the Respondent No. 2, agreed to be the guarantor of the Petitioner. Several payments were made by the Petitioner to the Respondent company but disputes and differences arose in respect of such payments and also in respect of the title to the said lorry. The Petitioner filed a suit No. 2591A of 1966 against Ganesh Narayan Brijlal Pvt. Ltd. and Sitablal for, inter alia, declaration that Bankelal is the owner of lorry No. WGH 5369, for confirmation of possession of the lorry by him, for accounts and for other relief 's. In the said suit the Respondent made an application for stay of the said suit under Sec. 34 of the Indian Arbitration Act on January 2, 1967. On May 23, 1967, the said application was dismissed. An appeal was preferred by the Respondent company on June 7, 1967, -against the said order dismissing the application for stay. Before the appeal Court Bankelal and the Respondent company made an application for reference of all their disputes and differences in the suit and the appeal to arbitration. The appeal Court by its order dated December "19, 1967, allowed the said petition and referred all the disputes and differences between the parties in the suit to the sole arbitration of the said Mr. Tibewalla. Thereafter, the Arbitrator gave direction to the parties to file statements of facts and on June 4, 1968, the Respondent company filed a statement of claim. The Petitioner also filed statements of facts reiterating the prayers in his said suit. On January 6, 1968, and on January 13, 1968, the arbitration meetings were held and Mr. D. Bagaria appeared for the Petitioner. On March 7, 1968, the Arbitrator made and signed his award. The award was duly filed and the present application was made on February 25, 1969.
(3.) Mr. Bhabhra, on behalf of the Petitioner, has submitted that the application should be dismissed on two grounds. According to him, the application was made by the Petitioner and the Respondent company before the appeal Court under Sec. 21 of the Indian Arbitration Act, 1940. The Respondent Sitablal was not a party to the said application and, as such, the reference to arbitration is invalid in law. Further, he has argued that assuming the said application was made under Sec. 24 of the Act the Arbitrator in holding the Petitioner, and the Respondent Sitablal jointly liable for payment of Rs. 9,000 has acted in breach of Sec. 24 inasmuch as the award is not severable. Relying on Narsingh Das v/s. Firm Gogan Ram A.I.R. 1955 Punj. 31 he has argued that although the Court has power to modify or correct the award, in the facts of this case the Arbitrator in making the said Sitablal liable jointly with the Petitioner has made the award one compact whole and in severable. In the premises the award should be set aside.;

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