Ramendba Mohan Datta, J. - (1.) THE appeal herein arises from the judgment and order of Subyasachi Mukharji, J. passed on May 18, 1977. THE learned Judge has dismissed the application for setting aside the award and has, inter alia, passed a judgment in terms of the award.
(2.) THE award was passed on Jan. 22, 1977 in respect of disputes arising out of a Hire-Purchase Agreement dated Nov. 25, 1972 in which there was an arbitration clause. THE award read as follows : "Whereas Messrs. Kedarnath Kejriwal, the claimant abovenamed referred to my arbitration all disputes and differences between them and the respondents pursuant to the Arbitration Agreement dated 9th day of October, 1972 between the parties and whereas I took upon myself the burden of the said reference and whereas I have read and considered the papers filed before me and also heard the evidence: Now I make my award as follows:-- 1. I award and declare that the claimant namely Kedar Nath Kejrival are the owners of the Tata Mercedes Benz Motor Vehicle bearing Police Registration No. BRJ 2741 and No. 312.978.86. 22850 on the Engine and No. 342.050.85. 22018 on the Chassis thereof and entitled to possession thereof. 2. I hold and award that the respondents, namely (1) Paras Nath Dubey and (2) Jairam Prasad Dubey do pay the Claimant a sum of Rs. 37,250 (Rupees Thirty-seven thousand two hundred and fifty) only. I further hold and direct that should the respondents fail to give possession of the said vehicle to the claimant, they do pay to the claimant a sum of Rupees 16,000 (Rupees sixteen thousand) only in lieu of the Award made herein as to declaration and possession of the said motor vehicle.
(3.) I further hold and direct that the respondents do pay Rs. 859 (Rupees eight hundred and fifty only) as costs of this Arbitration." 3. The hire-purchase agreement relates to the motor vehicle bearing No. BRJ 2741. In March, 1972, the disputes were referred to arbitration by the respondent, Kedar Nath Kejriwal (hereinafter called Claimant Kejriwal). On April 24, 1975 the arbitrator wrote to the petitioners Dubeys (Paras Nath and Jairam Prasad) (hereinafter called Dubeys) to file counter-statement of facts. Thereafter on April 25, 1975 the Dubeys requested the arbitrator to grant 15 days' time. The claimant Kejriwal made an application on or about May 5, 1975 for appointment of a Receiver under Section 41 of the Arbitration Act, 1940 over the said vehicle. On or about July 17, 1975 Dubeys filed an affidavit-in-opposition to the said application. Dubeys also made an application in this Court under Sections 5 and 33 of the Arbitration Act for determination of the validity and effect of the arbitration agreement. On Aug. 6. 1975 Dubeys filed a Title Suit being Suit No. 207 of 1975 in the Bhagatpur Court. In that suit Dubeys had asked for a decree that the petitioner Paras Nath Dubey was the absolute owner of vehicles Nos. BRF 3461 and BRJ 2741 and that the defendant therein, being Kedar Nath Kejriwal had no right, title and interest therein. Dubeys also asked for a declaration that the alleged hire-purchase agreement dated Oct. 9, 1972 relating to vehicle No. BRJ 2741 and the alleged hire-purchase agreement dated Nov. 24, 1972 relating to vehicle No. BRF 3461 were void and not binding on the Dubeys and for the delivery up and cancellation thereof. They also asked for a decree for accounts and for such amount as might be found due and payable and/or refundable by Kejriwal and also for a decree for Rs. 5,100. There was also a praver for mandatory injunction restraining Kejriwal from taking any step and/or any further proceeding in respect of the said hire-purchase agreement. On Sept. 29, 1975 Dubeys obtained an ex parte order of injunction from Bhagalpur Court restraining Kejriwal from proceeding with the reference before the Arbitrator. 4. After the hearing of the said application under Sections 5 and 33 was concluded, the judgment was reserved by the learned Judge Roy Chowdhury, J. on the prayer of the Dubeys to enable the petitioners Dubeys to settle the matter but instead of settling the matter, Dubeys obtained an order of injunction from Bhagalpur Court restraining the arbitrator from proceeding with the arbitration. The matter was thereupon men-mentioned before Roy Chowdhury J. in December. 1975.;