SAHA AND CO Vs. ISHAR SINGH KRIPAL SINGH AND CO

JUDGEMENT

(1.) THE facts out of which this Reference to a Full Bench has arisen, have been set out in full in the Order of Reference. Briefly stated, they are that after the notice of the filing of an award made against the Appellants had been served on them, they made an application to the Court which contained three prayers. THEir case being that the alleged award had been made by a body other than the body named in the arbitration agreement, they prayed that the existence, validity and the effect of the alleged agreement upon which the award bad been made, might be determined by the Court, that it might be declared that there was no valid, binding, effective or subsisting agreement between the parties and that the purported award might be set aside. THE learned trial Judge treated the application, so far as it asked for the first two reliefs, as an application under Section 33, Arbitration Act and held it to be barred by limitation; but he allowed the appellants to withdraw the application, so far as it was an application under Section 33, without however, granting them leave to make a fresh, application under the section. As to its third prayer, the application was treated as an application under Section 30 of the Act and the appellants were allowed to proceed with it. In support of it, they wanted to urge the same ground that they had previously advanced in support of the other two prayers, viz., that there had been no agreement between the respondents and themselves to refer their disputes to the arbitration of the body which was said to have made the award. As put in terms of Section 30, the contention was that since the award had been procured from a body not named in the arbitration agreement it had been 'improperly procured' and since it was an award made by a body which had no jurisdiction to make it, it was 'otherwise invalid'. THE learned Judge held that the real ground of the appellants was that the award was a nullity, inasmuch as there was no agreement for a reference to the arbitrators who had made the award and that such a ground was proper only to an application under Section 33 and could not be relied on for supporting an application under Section 30. In that view, he dismissed the application, so far as it was an application under Section 30 and asked for the relief of setting aside the award.

(2.) THEREAFTER, the appellants preferred an appeal from the order of the learned Judge which came up for hearing before Lahiri J. and myself. The view taken by the learned Judge was in fact in accordance with the view taken in several decisions of this Court, some of them, decisions of Division Benches sitting as the Court of Appeal. It had been held in those decisions that an application which challenged an award as a nullity could not be made under Section 30 of the Act which only contemplated applications which did not impugn the award as a nullity, but treated it as an award which, though liable to be set aside on account of same legal defect, would remain effective if it was not set aside. An award which was a nullity was not required to be and could not be set aside and therefore an application which challenged an award as a nullity was not within the purview of Section 30. Such an application, it had been held further, properly belonged to Section 33 which provided for application challenging the existence or validity of an arbitration agreement or award or to have the effect of either determined and the proper relief to be asked for by it would be an adjudgment of the award as void. An application which challenged an award as passed without jurisdiction on the ground that there had been no agreement or valid agreement to refer, impugned it as a nullity and therefore such an application, it had been held, could be made only under Section 33.

(3.) THE Reference was argued at great length On both sides and the argument ranged over practically the whole of the Arbitration Act. That was perhaps inevitable, but I consider it essential to keep close to the questions, actually asked. As to those questions, upon giving my best consideration to the submissions of learned counsel, I find no reason to alter the opinion I expressed in the Order of Reference, except that I have come to think that it will be more accurate to state one of tile propositions in a slightly narrower form.