Decided on March 21,1967

K. S.E.B.. Respondents


- (1.) THE 2nd respondent, having been appointed arbitrator in a dispute between the Kerala State Electricity Board and the Association of engineers working under the Board in regard to the remuneration of members of the latter, ordered the Board to produce "the Minutes of the Board Meeting held on 3101966" which he thought to be relevant to the enquiry. THE Board challenged that order by an Original Petition O. P. No. 1 of 1967 before the subordinate Judge, Trivandrum, who stayed compliance with the order pending disposal of the Original Petition. THE association has come up for a revision of the proceeding on the ground that the subordinate Judge has no jurisdiction to interfere with the aforesaid order of the arbitrator.
(2.) COUNSEL for the Board stated that the Minutes concern negotiations between parties and that it is one of the conditions in the arbitration agreement that all offers and counter-offers made between the parties are withdrawn. Such a condition can only mean that those offers and counter-offers are no more open for acceptance by the party concerned. It cannot mean that the offer made by the Board cannot be looked into by the arbitrator to gauge the capacity of the Board to pay its engineers, which capacity would be a relevant fact in the enquiry by him. The arbitrator has made clear in his order dated 19th February 196 7 that the particular Minutes of the Board Meeting will be used only to understand "the background which led to these arbitration proceedings" and not to pin the Board down to its offer therein. Counsel for the Board conceded that the O. P. has been moved under S. 31 (2) and 33 of the Arbitration Act, 1940, of which S. 31 (2)deals with jurisdiction of the Court and S. 33 with the procedure to invoke that jurisdiction. Those Sections read: "31. (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. (2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court. " "33. Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit. " Obviously, the jurisdiction conferred by these Sections is limited to questions regarding the existence, validity, or effect of an award or an arbitration agreement. The direction to produce a particular document at the enquiry is not a matter that is within the jurisdiction conceded by these Sections. The following observations of the Supreme Court are pertinent here: ". . . S. 33 contemplates an application for three purposes, namely, (i) when it is desired to challenge the existence of an arbitration agreement, (ii) when it is desired to challenge its validity, and (iii) when it is desired to have its effect determined. An arbitration agreement may come into existence in one of two ways; it may either arise out of an agreement which contains nothing else besides the arbitration agreement, or it may arise out of a term contained in a contract which deals with various other matters relating to the contract, which is the present case. Where one is dealing with an arbitration agreement of the second kind, S. 33 is concerned only with the term relating to arbitration in the contract and not with the other terms of the contract which do not arise for consideration on an application under that section. " (Shiva Jute Baling Limited v. Hindley and company Limited AIR. 1959 S. C. 1357, par. 10.) In the language of the Sections concerned the impugned order to produce Minutes does not relate to "the validity, effect or existence" of the arbitration agreement, which by the above-quoted dictum means only "the term relating to arbitration in the contract. " The order may concern the conduct of parties prior to the arbitration agreement, but not the agreement to arbitration as such. It is therefore outside the purview of the S. 31 (2) and 33 of the Act. The motion before the Subordinate judge is therefore beyond his jurisdiction to entertain. The order of stay passed by him as incidental to such a motion also falls outside his jurisdiction.
(3.) I would therefore discharge the order of stay passed by the Subordinate Judge and declare the Original Petition (O. P. No. 1 of 1960 before him to be beyond his jurisdiction under S. 31 of the Arbitration Act. Order accordingly. In view of the urgency of the matter, a copy of this order will be given forthwith to counsel on either side. Allowed.;

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