Decided on September 20,1978

Indian Industries Appellant
Indian Traders Pvt. Ltd. Respondents


R.N.Misra, J. - (1.) APPELLANT obtained an agency of distributorship for the State of Orissa from the Respondent. The agreement of agency had an arbitration clause. The said arbitration clause provided that in the event of dispute each of the parties would be entitled to nominate an arbitrator and in the event of disagreement between the two arbitrators, an umpire would be chosen as provided by the Arbitration clause. When dispute arose, Plaintiff gave notice for arbitration and nominated its arbitrator. Defendant having failed to comply with the notice within the statutory period, Plaintiff's nominee proceeded to deal with the dispute and passed an award on 16 -8 -1965. The award was filed in the Court of the Subordinate Judge, 1st Class, Delhi, for being made a rule of the Court. Objection was raised on the ground that (i) one S.K. Jajodia who had signed the agreement on behalf of the Appellant had no authority to enter into the agreement; (ii) the arbitrator who passed the award happened to be the son of the advocate of the Plaintiff and his appointment was a nullity; (iii) no notice had been served on the Defendant and (iv) the Delhi Court had no jurisdiction to make the award a rule of the Court. All the objections were overruled and the award was made a rule of the Court. The matter was carried in appeal to the Delhi High Court which upheld the decision of the learned Subordinate Judge on all Courts against the Defendant except that the Delhi Court had no jurisdiction to entertain the award for being made a rule of the Court. Thereupon, an application was made to the Court of the learned Subordinate Judge at Cuttack under Section 17 of the Arbitration Act. On notice from the Court at Cuttack, one Madanlal Upadhyaya filed an objection contending that there was no existence of any firm known as Indian Industries situated at 14 Contonment Road at Cuttack and on enquiry the objector gathered that such a firm had existed a long time back and its proprietor was Sri Biswanath Rice Mills Pvt. Limited, but the said firm had been closed down from 1964. The objector thus did not represent the Defendant and appeared to have filed the objection on his own behalf. The learned Subordinate Judge having rejected the objection on merit, the appeal has been carried to this Court by Sri S.K. Jajodia in the name of the Defendant.
(2.) A preliminary objection has been raised by' the Plaintiff Respondent that the appeal is not maintainable in this Court in view or the fact that the matter is not conveyed either under Section 17 of Section 39 of the Arbitration Act. Under Section 17 no appeal would lie from the decree except on the ground that the decree is in excess of, or not otherwise in accordance with, the award. As a fact, the decree of the learned Subordinate Judge does not suffer from either of the vices indicated in the section. Section 39(1) of the Arbitration Act provides for an appeal against the following orders: (i) superseding an arbitration; (ii) order on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award. The impugned decision of the learned Subordinate Judge does not come under any of the classes. I am, therefore, inclined to agree with the submission of Respondent's counsel that the appeal does not lie to this Court. Even on merit, I see no point in support of the appeal. The objection before the learned Subordinate Judge was by a person who seems to have no connection with the Defendant. In fact, the existence of the Defendant was denied in the objection petition. In the circumstances, it must be held that there was no objection before the learned Subordinate Judge. The Appellant at one stage had disputed the authority of S.K. Jajodia to enter into the agreement with the Plaintiff providing for arbitration. The same S.K. Jajodia has now preferred the appeal. Mr. Sinha for this Appellant contends that even if it is considered that no objection has at all been filed in the Court of the learned Subordinate Judge, treating the decree to be ex parte, an appeal could be carried to this Court. On principle, the submission appears to be tenable, but as the appeal is provided either under Section 17 or Section 39 of the Arbitration Act and neither of the provisions is applicable, the appeal is not maintainable. Besides, the points raised ale essentially factual and objection at the appropriate stage having not been raised, it is difficult to entertain them in appeal for the first time.
(3.) FOR the reasons indicated above, this appeal has to fail. I make no order for costs. Appeal dismissed.;

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