KERALA STATE HOUSING BOARD Vs. E A YUSUFF

JUDGEMENT

(1.) THE respondent moved an application, under Section 20 of the Arbitration Act, for "filing" the arbitration agreement before court. He also applied for issue of a commission for local inspection, under, Order 26. Rule 9, Civil P. C. THE petitioner contended that till an order of reference was made under Sub-section (4) of Section 20, the power under Section 41 of the Act could not be exercised. THE court below did not express any opinion on this question of jurisdiction, but allowed the commission application. THE petitioner objects.

(2.) IN. Baby Paul v. Hindustan Paper Corporation (AIR 1973 Ker 223) Vadakkel J. had taken the view that orders in respect of matters set out in items (1) to (4) of the Second Schedule to the Arbitration Act could be issued under Section 41 (b) of the Act only after the passing of an order of reference. IN other words, such orders could not be issued in proceedings under Section 20 till the stage of reference was reached. Observing that such orders could only be interlocutory in nature, and that there could be no question of any interlocutory order till the arbitrator was seized of the main dispute, his Lordship said (at p. 224):-- "....:.the court's power of making orders in respect of matters set out in items (1) to (4) of the Second Schedule to the Arbitration Act, 1940 is only to make interlocutory orders in interlocutory proceedings during the course of the arbitration proceedings pending determination of the rights of parties thereto finally by an order passed by the arbitrator, and the court is not competent to pass an order in those matters anticipating a reference." It was further held that:-- "......arbitration proceedings commence only on the arbitrator getting authority to arbiter, and act in that behalf."

(3.) IT is settled law that reference can be made to headings of sections or marginal notes when difficulty arises in interpreting the scope and meaning of a provision. The heading of Section 41 is "Procedure and Powers of Court", Clause (a) only "applies" the provisions of the C.P.C. to proceedings before the court; conferment of power to make orders in respect of matters in the Second Schedule is made by Clause (b). That perhaps is the reason why the Supreme Court said that Clause (a) is concerned with procedure and that the power to issue interlocutory orders has to be found in Clause (b).