B.C.Basak, J. - (1.) THIS is an application under Sections 30, 33 and 41 of the Arbitration Act. 1940 (hereinafter referred to as the said Act) praying that the award made on is March, 1969 in the arbitration proceedings between Kailash Financiers (Calcutta) Private Ltd. and Ser-am-pore Mill Stores be set aside; (b) that the decree passed in the Award Case No. 74 of 1974 be set aside; (c) that all proceedings including execution proceedings under the said Award dated 1st March, 1969 and/or the decree dated 17th August, 1970, including all steps in aid of execution, be stayed permanently.
(2.) THE facts of this case, so far as relevant for the purpose of this application are as follows: At all relevant times the petitioner was and still is carrying on business under the name and style of Seram-pore Mills Stores as a sole proprietor thereof (hereinafter referred to as the petitioner). The respondent No. 1 was and still is a private limited company having its present registered office at Calcutta. The respondent No. 2 was a private limited company having its registered office at Jullandher and a branch office at Calcutta. On the 31st March, 1966 the petitioner became member of Group SFB/2 promoted by Kailash Financiers Private Ltd the respondent No. 2 herein. On the 5th of May, 1966 the petitioner became member of Group OB-8 promoted by the respondent No. 2. On the 31st October, 1966 it is alleged that the business of the Calcutta branch of the respondent No. 2 was taken over by the respondent No. 1 herein. It is alleged that intimation of the said take-over was sent to all members including the petitioner. It is further alleged that thereafter the petitioner all along dealt with the respondent No. 1 in respect of its membership of the aforesaid two groups, paid all subscriptions to the respondent No. 1 and obtained receipts from the respondent No. 1. It is also alleged that thereafter the petitioner became a successful subscriber by offering highest tender to the respondent No. 1 and obtained loan from respondent No. 1. This loan was in respect of group OB-8 and the petitioner executed a promissory note and a Receipt in favour of the respondent No 1. It is also alleged that the petitioner became successful subscriber by offering highest tender to the respondent No. 1 under the rules and regulations of respondent No. 1 and obtained loan from the respondent No. 1 under rules and regulations of respondent No. 1 in respect of Group SPB-2 and executed a promissory note in favour of respondent No. 1. So far as the award in question it is suggested in the petition that the petitioner was ignorant of the decree passed thereon until receipt of a notice dated 23rd July, 1974 under Rule 22 (1) of Order 21 of the Code of Civil Procedure towards the end of August. 1974. This is denied in the affidavit-in-opposition wherein detailed facts have been set out showing the knowledge of the petitioner regarding same. It is to be pointed out that there is no specific or sufficient denial to the same by the petitioner in its affidavit-in-reply. From the facts stated in the affidavit-in-opposition it appears that on the 7th January. 1969 as disputes arose between the petitioner and the respondent No. 1 in respect of both the above groups, the matters were referred to arbitration by the respondent No. 1 to the Managing Director of the respondent No. 1. It is alleged that under clause 15 of the Rules and Regulations of the respondent No. 1 such disputes were referable to the managing director of the respondent No. 1. On the same date i. e. 7th January, 1969 Arbitrator gave notice to the petitioner to appear before him on 25th of January, 1969 at 12 noon to answer the claim of the respondent No. 1. It is further alleged that the statement of claim in respect of both the groups were sent to the petitioner it is alleged that on the 8th of January, 1969 notice dated 7th January. 1969 was sent by registered post with acknowledgment due and was duly received by the petitioner. It is also alleged that the acknowledgment card has been filed along with the award. The petitioner did not appear before the Arbitrator pursuant to the notice dated 7th January, 1969 and the meeting was adjourned till 1st of March, 1969. On the same day i. e. 25th January, 1969 another notice was sent by the Arbitrator to the petitioner to the effect that the next meeting will be held on 1st of March, 1969. By the said notice the petitioner was also informed by the Arbitrator that in default of appearance the Arbitrator would proceed ex parte. It is further alleged that the said notice dated 25th January, 1969 was sent by registered post with acknowledgment due and was received by the petitioner on 29th January. 1969. It is further alleged that the postal acknowledgment due has been filed with the Award. Admittedly the petitioner did not appear before the Arbitra for pursuant to the notice dated 25th of January, 1969. The Arbitrator thereafter proceeded with the reference and made an ex parte award for the sum of Rupees 13,360 in favour of the respondent No. 1 and against the petitioner. It is alleged that on the same date i.e. 1st March, 1969 the petitioner was duly informed by a notice about the making and signing of the award by Arbitrator on that day i. e. 1st March, 1969. It is alleged that the said notice was sent by registered post with acknowledgment due and was received by petitioner on the 6th March, 1969. It is also alleged that the acknowledgment due has been duly filed with the award. On the 18th March. 1969 Bose and Dutt, Solicitors wrote to the petitioner intimating it about the making of the award and asking for payment. The letter was sent by registered post with acknowledgment due and was duly received by the petitioner on 31st March, 1969. A copy of the said letter with the copy of the acknowledgment due is annexed to the affidavit-in-opposition. On the 20th of March, 1969 a reply was received from the petitioner, whereby the claim of the respondent No. 1 was repudiated. A copy of the said letter is annexed to the affidavit-in-opposition. By a letter dated 18th June, 1969 the respondent No. 1 again informed the petitioner about the award dated 1st March, 1969 and further placing on record that it promised to clear the dues and accordingly the award was kept pending and not filed in Court. The letter further placed on record the fact that a cheque for Rs. 1,000 being cheque No. 233902 dated 2-6-69 drawn in favour of the respondent No. 1 in part payment of its dues under the said award dated 1st of March, 1969 was dishonoured. It is alleged that this letter was also sent by registered post with acknowledgment due and was duly received by the petitioner on 25th of June, 1969. A copy of the said letter and the acknowledgment due are annexed to the affidavit-in-opposition. On the 15th July 1969 the award along with necessary papers were sent to this Court for filing but the same was not filed till 8th June, 1970. Notice under Section 14 (2) of the Arbitration Act was issued on 2nd July, 1970 fixing 17th August, 1970 for pronouncing judgment upon award. On the 15th July, 1970 notice under Section 14 (2) of the Arbitration Act was served on the petitioner. On the 17th of August, 1970 judgment upon the said award was pronounced. By a letter dated 17th July, 1974 Shyam gundar Bose, Solicitor informed the petitioner about the award dated 1st March. 1969 and the decree thereon dated 17th August, 1970 and demanded payment. It is alleged that the said letter was sent by registered post with acknowledgment due and was received by petitioner on 19th August, 1974. A copy of the said letter and a copy of the acknowledgment due are annexed to the petition (sic) On the 23rd July, 1974 Tabular Statement filed and notice under Order 21, Rule 22 (1A) of the Code was directed to be issued On the 13th August, 1974 the said notice under order 21. Rule 22 (la) was served on the petitioner. On the returnable date of the notice the judgment-debtor did not appear and after three usual calls the learned Master was pleased to make an order directing issue of attachment in terms of clause 10 of the Tabular Statement. On the 25th September, 1974 the present application was made.
(3.) MR. S. Tibrewal, learned counsel appearing in support of this application, submitted before me that the judgment upon award was a nullity inasmuch as it was filed on 8th June, 1970 when the City Civil Court at Calcutta and not this Court had jurisdiction to entertain any such award for passing judgment upon the same. He pointed out that with effect from 14th November, 1969 the pecuniary jurisdiction of this Court was in respect of amount exceeding Rs. 50,000 whereas the award in question was in respect of a sum less than that amount and accordingly after 14th November, 1969 no such award could be filed in this Court and no such judgment upon the award could be passed by this Court. According to him in view of the same the judgment passed upon the said award on the 17th August, 1970 was a nullity. He made it clear that though this application was intituled to be under Sections 30 and 33 of the said Act, this was in effect an application under the inherent jurisdiction of this Court under Section 151 of the Code of Civil Procedure read with Section 41 of the said Act According to him there was no time limit for such, an application. The judgment upon the award being a nullity it could be challenged at any stage in any proceeding. In this connection he relied on the decisions of Rajalakshmee Dassee v. Katyayani Dassee reported in (1911) ILR 38 Cal 639 at p. 667. Kiran Singh v. Cha-man Paswan ; and Soorajmull Nagarmull v. Golden Fibre and Products , Official Trustee West Bengal v. Sachindra Nath Chatterjee , and Ganeshmal v. Kesoram Cotton Mills . It was also sought to be contended that there was no arbitration agreement between the parties and accordingly the award was a nullity and the same ought to be set aside. In this connection it was argued that originally the arbitration agreement was between the applicant and the respondent No. 2 and there was no arbitration agreement between the applicant and the respondent No. 1 though an award was sought to be passed in favour of the respondent No. 1 in an arbitration proceeding between the applicant and the respondent No. 1.;