AMBIKA PRASAD THAKUR Vs. SIVA PARSAN SINGH
LAWS(PAT)-1960-7-13
HIGH COURT OF PATNA
Decided on July 12,1960

AMBIKA PRASAD THAKUR Appellant
VERSUS
SIVA PARSAN SINGH Respondents

JUDGEMENT

- (1.)MISCELLANEOUS Appeal No. 14 of 1956 is presented on behalf of defendants against the order of the Addl. Subordinate Judge of Arrah, dated 3-12-1955, in Title Suit No. 35 of 1950, superseding a reference to arbitration made by the parties -in the suit. MISCELLANEOUS Appeal No. 15 of 1956 is made on behalf of the same persons against the same order made in Title Suit No. 12 of 1949. Civil Revision No. 1200 of 1955 and No. 38 of 1956 are made on behalf of the same defendants against the order of the learned Addl. Subordinate Judge, dated 12-12-1955, refusing to enquire into the existence of an alleged award or pronouncement of the alleged award by the arbitrators concerned.
(2.)IT appears that on 2-12-1955, an application was made on behalf of the appellants in both the title suits, stating that the award had been prepared, signed and announced by the arbitrators in the presence of the parties. IT was alleged that the award was prepared on 27-11-1955. This application was made by the appellants under Section 14 of the Arbitration Act. On the same elate a rejoinder was filed on behalf of the respondents stating that the award was not announced nor \vas it prepared and the allegation of the appellants to that effect was wrong. On 3-12-1955, the learned Subordinate Judge made the following order, which is the subject matter of the two Misc. appeals:
"3-12-55. Parties present. The plaintiff No. 1 and Babuli Thakur and Ram Kawal Rai file two separate rejoinders to the petition of the defendant filed yesterday regarding delivery and announcement of the award. Lawyers heard. Call for the record from the Sarpunch with or without award, as the case may be. Defendant to deposit Rs. 10/-as cost of special peon for bringing the record which is to reach the Court by 7-12-1955. The reference is recalled if the award has not already been delivered,"
On the 7th December, 1955, the appellants made an application to the Court, stating that they were prepared to prove by unimpeachable evidence not only the existence of the award but also the teems of the award. There was a rejoinder filed on behalf of the respondents. The case was taken up on 12-12-1955, on which date the Court rejected the application of the applicant for an inquiry into the matter of the existence or pronouncement of the award. The reason given by the learned Addl. Subordinate Judge was that "there was no provision in the Arbitration Act for inquiry of the kind sought for by the defendants".
Having heard learned counsel for both the parties we are satisfied that the order of the learned Addl. Subordinate Judge, dated 12-12-1955, and also his order dated 3-12-1955, arc erroneous in law and must be set aside and the case must go back to the learned Addl. Judge to make an inquiry into the allegation made by the appellants and after giving an opportunity to the parties to adduce evidence come to a rinding whether the award was in existence and pronounced by the arbitrators and then dispose of the application of the appellants under Section 14 of the Arbitration Act in accordance with law. We consider that the learned Addl. Subordinate Judge was erroneous in law in holding that he had no jurisdiction to make an inquiry on the application made under Section 14 of the Arbitration Act. It is true that Section 14 relates in terms to an award made without the intervention of the Court, but Section 14 has got to be read along with Section 25 of the Arbitration Act which provides as follows :

"25. Provisions Applicable To Arbitrations Under This Chapter.-- The provisions of the other chapters shall, so far as they can be made applicable, apply to arbitration under this chapter : Provided that the Court may, in any of the circumstances mentioned in Sections 8, 10, 11 and 12, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit, and where the Court makes an order superseding the arbitration under Section 19, it shall proceed with the suit."
Section 31 of the Arbitration Act is also important and is reproduced below :
"31. Jurisdiction. -- (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. (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court. (4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court."
It is obvious that this section confers jurisdiction upon the Court to make an enquiry and decide the question raised by the parties with regard to the validity, effect or existence of an award or an arbitration agreement between the parties. Section 32 bars any suit contesting an arbitration agreement or award and is in the following terms
"32. Rar To Suit Contesting Arbitration Agreement Or Award.-- Notwithstanding any law for the time being in force, no suit shall' lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act."
Section 33 is in the following terms:
"33. Arbitration Agreement Or Award To Be Contested By Application.-- 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."
Reading, therefore, Section 14 in the context of Sections 25, 31, 32 and 33 of the Arbitration Act, it is manifest that the learned Addl. Subordinate Judge in the present case has jurisdiction to inquire into the existence of the alleged award and to ask the parties to produce evidence, oral or documentary, in the matter, and then decide the question. Accordingly we hold that the order of the learned Addl. Subordinate Judge, dated 12-12-1955, in the Title suits, and also his earlier, order dated 3-12-1955, are vitiated by a serious error of law and must be set aside. We accordingly allow both the Misc. Appeals Nos. 14 and 15 of 1956 and also the Civil Revision Applications Nos. 1200 of 1955 and 38 of 1956, set aside the orders of the learned Addl. Subordinate Judge dated 3-12-1955, and 12-12-1955, and order that the case should go back to the learned Addl. Subordinate Judge for making an inquiry into the existence of the alleged award, after giving an opportunity to the parties to produce such evidence as they choose, and then dispose of the application of the appellants under Section 14 of the Arbitration Act in accordance with law.We accordingly allow Misc. Appeals Nos. 14 and 15 of 1956 and Civil Revision applications Nos. 1200 of 1955 and 38 of 1956. There will be no order as to costs.


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