RAM CHANDER Vs. JAMNA SHANKAR
HIGH COURT OF RAJASTHAN
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(1.)THIS is a revision application by the defendants in a suit which was referred to arbitration through the intervention of the court against an order of the Civil Judge sojat pronouncing judgment and granting decree according to the award under section 17 of the Arbitration Act, 1940 on the ground that no notice as contemplated under Section 14 (2) was given and they were consequently deprived of an opportunity of filing objections against the award.
(2.)THE application was contested on behalf of the plaintiffs. A number of preliminary objections were taken. But before going into them it is necessary to state the facts.
The plaintiffs are members of a joint Hindu family. The defendants also constitute a joint Hindu family, Jassulal defendant No. 1 being the father of mangilal, Shyamlal and Ramchander defendants Nos. 2 to 4. It is not disputed now that Jassulal as manager of the family of the defendants borrowed money from time to time from the plaintiffs on the security of houses and ornaments. The case of the plaintiffs is that a settlement of accounts took place in Sm. 2002 and a sum of Rs, 10,101/- was found due to the plaintiffs from the defendants. Some further sums were advanced thereafter and payments were also made. It was claimed that a sum of Rs. 4598/4/-remained due as principal and Rs. 2561/1/- as interest for the recovery of which the present suit was instituted in the court of the Civil Judge Sojat on 24-10-49. Jassulal filed a written statement on behalf of himself and his minor son Ramchander who was aged 13 years at that time. Another written statement was filed by Shyamlal. Later on Mangilal appeared. Both the parties referred the suit to arbitration through the court. The arbitrators filed their award on 23-12-54 in, the court of the Civil Judge Sojat. The impugned judgment and decree were passed by the learned Civil Judge on the same date. The order-sheet of 23-12-54 runs as follows:
"plaintiff No. 3 present along with Shri Maya Shanker Vakil. Defendant shyamlal present. The arbitrators filed the award today. The parties present in court have no objection to make against the award. A decree is accordingly passed in favour of the plaintiffs against the defendants in accordance with the award. "
On 4-3-55 two applications were filed--one on behalf of Mangilal and Shyamlal and another on behalf of Ramchander--in which it was alleged that no notice of the filing of the award was served On them; that they had no opportunity of filing objections against it, and that the decree passed on the basis of the award was without jurisdiction and praying that it may be set aside. Ramchander's application purported to be under Order 9 Rule 13 and Section 151.
The applications were opposed on behalf of the plaintiffs. The learned Civil judge rejected them on 19-10-55 on the ground that the decree could not be set aside on an application under Order 9 Rule 13 and that the proper remedy of the defendants was to go to the High Court in revision. The present revision application was then filed on 11-11-55 against the judgment and decree which the learned Civil Judge passed on 23-12-54 on the basis of the award.
Shyamlal has alleged in the revision application that he was not present in court on 23-12-54. In support of the allegation it is urged that his signatures do not appear on the order-sheet of that date. Order-sheets are not invariably signed by all the parties present in court on a particular day. The order-sheet dated 23-1254 shows that it was Carefully scrutinised by the presiding officer before he signed it. At first it was written in the order-sheet that all the defendants were present along with their Vakil Shri Karan Raj. This was scored out and initialled by the presiding officer and it was recorded that only Shyamlal defendant was present. I accordingly hold that Shyamlal was present on 23-12-54 in court when the award was filed and that he told the presiding officer that he did not want to make any objection against it.
(3.)SO far as Mangilal and Ramchander are concerned they were neither present personally nor through counsel on 23-12-54 and it cannot be said that notice under Section 14 (2) was given to them.
The preliminary objections taken on behalf of the plaintiffs are as follows:--
1. that the order dated 23-12-54 passing judgment and decree on the award without giving an opportunity to the defendants to file objections against it amounted to a refusal to set aside the award and an appeal lay against it under Section 39 (1) (iv) of the Arbitration Act. No revision application is therefore competent in view of the ruling of this Court in swarup Narain v. Gopinath, 1953 Raj LW 629: (AIR 1953 Raj 137) (FB); 2. that the decree purporting to have been passed under Section 17 was not a legal decree and an appeal lay against it. A revision application was consequently not competent; 3. that an application lay under Order 9 Rule 13 for setting aside the ex parte decree passed on 28-13-54 and the order of the learned Civil judge Sojat refusing to set it aside was appealable under Order 43 Rule 1 (d ). No revision application consequently lies in the present case as the matter could have been brought before this Court by filing an appeal against the order dated 19-10-55 as held in Swarup Narain's case, 1953 raj LW 629 : (AIR 1953 Raj 137) (FB); 4. that the revision application against the order dated 23-12-54 filed on 11-11-55 is grossly belated; 5. that substantial justice has been dons in the case and even if there is any technical illegality this Court should not interfere in the exercise of its discretionary jurisdiction under Section 115 C. P. C.
Taking the first preliminary objection first the reply on behalf of the applicants is that no objections having been filed against the award the order dated 23-12-54 cannot be treated as an order refusing to set aside an award. In Swastika scientific Engineering Co. v. Union of India, AIR 1953 Punj 129 which was relied upon by the respondents in support of this objection the facts were these. There was an arbitration agreement between the parties. A suit was nevertheless instituted in the court of the Subordinate Judge Ambala by one of the parties as a dispute had arisen. The other party filed an application under Section 34, arbitration Act and on this application proceedings were stayed. Proceedings were commenced before the arbitrators at Delhi and time for filing the award was extended by the Subordinate Judge of Delhi. The suit in question could be instituted either in the court of the Subordinate judge Ambala or in the court of Subordinate Judge Delhi. The umpire gave his award on 5-12-48 at Delhi dismissing the plaintiff's claim. On 7-12-48 he informed the parties of his award. The plaintiff filed objections against the award in the court of the Subordinate Judge Ambala on 7-1-1949. A reply to the objections was filed by the opposite party in which it was alleged that the Ambala court had no jurisdiction to decide the objections as the matter was not referred to arbitration by that court and as no award had been filed in that court. On 26-10-49 the subordinate Judge dismissed the plaintiffs suit holding that the Delhi court alone had jurisdiction under Section 31 (4) to go into the matter of the award, that application for filing the award in Ambala was barred by time, that the cause of action had merged in the award and there was no independent cause of action and that the award was a bar to the suit. The plaintiff treated this order as one refusing to set aside an award and preferred an appeal under Section 39 of the arbitration Act against it. A preliminary objection was taken before the High Court that the appellant should have filed a regular first appeal under Section 96 C. P. C. This preliminary objection was overruled. It was held that an application under Section 34 having been made in the Ambala court that court gained control over the arbitration proceedings and the plaintiff became entitled to file objections against the award in the Ambala court. Further relying on the observations made by Chagla, J. in Ratanji Virpal and co. v. Dhirajlal Manilal, ILR 1942 Bora 452: (AIR 1942 Bora 101) the learned judge was of the opinion that the plaintiff was entitled to file objections in the court at Ambala even before the award had been filed in that court and that the court was bound to decide them on merits. It wag in these circumstances that the learned Judge observed
"i now come back to the original objections of the respondent that no appeal lay under Section 39, Arbitration Act. The words of the section are quite clear. An appeal lies against an order setting aside Or refusing to set aside an award. Application was made on 7-1-1949, for setting aside the award. Whatever the reason for the court not setting aside the award, the order still remains an order refusing to set aside the award and an appeal lies under Section 39. "
The above case is distinguishable from the present case inasmuch as no objection to the award was filed in the present case before the decree dated 2312-54 was passed. I am of the opinion that as no objection against the award was filed by the defendants before 23-12-54 the order of that date cannot be treated to be an order refusing to set aside the award. If objections are filed and overruled or if the objections are filed but are not gone into then alone the court can be said to have refused to set aside the award. If no opportunity to file objections is given, it cannot be said that there was a refusal to set aside the award.
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