ABDULKHADER HAJI Vs. KUNHAMMED

JUDGEMENT

(1.) QUESTIONS of considerable importance in the law of arbitration arise for consideration in this case. The questions are : (1) Whether the dismissal by court of an original petition by the Arbitrator under Section 28 of the Arbitration Act, 1940 to enlarge the time for making the award, will amount to 'superseding an arbitration' and whether an appeal will lie under Section 39 of the Act from the order of dismissal; (2) Whether the Arbitrator can file an appeal from an order of the Court refusing to enlarge the time for making the award; and (3) When the Arbitrator dies pending the appeal can any of the parties to the arbitration agreement get himself transposed as the appellant. A question whether an award passed in violation of an injunction restraining the Arbitrator from passing an award has to be ignored also arises in the case. This appeal was filed by the Arbitrator against the order of the Court below dismissing his original petition for enlargement of time for making the award under Section 28 of the Arbitration Act, 1940. By the same order the Court also dismissed the interim application by which the appellant Arbitrator filed in court the Award he made pending the Original Petition for time to make the Award. As per an arbitration agreement dated 24 -6 -1973 the respondents appointed the appellant as the sole Arbitrator for deciding certain disputes and for partition of the properties scheduled to the Original Petition. The Original Petition for extension of time was filed in the court below on 28 -2 -1974. On 14 -8 -1978 the court granted time up to 23 -12 -1974. On 18 -11 -1974 the 6th respondent who was ex parte filed an interim application for setting aside the ex parte order alleging that the Arbitrator and the first respondent colluded and obtained an extension of time for making the award. On 18 -11 -1974 itself the 6th respondent filed an application for injunction restraining the Arbitrator from making the award. Though the interim order of injunction issued by the court on 18 -11 -1974 was attempted to be served on the Arbitrator on 19 -11 -1974 he refused to accept the same. The Arbitrator then passed the award and the same is purported to have been signed by him on 22 -11 -1974. On 17 -1 -1975 the ex parte order against the 6th respondent was set aside. Though the Arbitrator challenged the above order in a civil revision before this Court the same was dismissed by this Court on 26 -5 -1975. On 17 -1 -1975 the interim order of injunction also ceased to be in force. On 31 -2 -1975 the Arbitrator gave notice to the parties except the 6th respondent of the making of the award. On 19 -2 -1975 the Award was filed in court along with I.A. 208 of 1975. On 8 -4 -1975 the 6th respondent filed a counter challenging the making and filing of the Award in Court.

(2.) THE Court below dismissed the Original Petition for extension of time for making the award and I.A. 208 of 1975 filing the Award in court holding : "In the case on hand, the arbitrator has not given notice of filing the award. However, the court issued notice on 15 -3 -1975 and the 6th respondent filed a counter -affidavit challenging the award on 8 -4 -1975. Hence the objection is filed within time. That apart, the award was made at a time when interim injunction was in force. Moreover, when the award was made the period had expired and the application for extension of time was not allowed by the Court. Hence the award sought to be canvassed in I.A. No. 208 of 1975 is a nullity. Since the award is made even before the extension of time, O.P. No. 7/1974 becomes infructuous."

(3.) "An order refusing to enlarge the time for the submission of an award remitted to the umpire on an application under section 13, Arbitration Act is a judgment and is appealable." It has to be pointed out that in the above decision what the High Court of Madras has held is that an appeal will lie under the Letters Patent (Madras) Rules and not an appeal under the provisions of the Arbitration Act. In Bhaiyalal v. Swai Singhai Pannalal (AIR 1944 Nag. 152), it has been held : "The order allowing leave to revoke the authority of the appointed arbitrator is not an order superseding the arbitration such as can be appealed against." In S. N. Agarwall v. Baidyanath Mandal (AIR 1972 Pat. 29), it has been held : "Mr. Chatterjee then contested the impugned order. He drew our attention to section 39 of the Act which gives a list of the order against which appeal may lie. That section provides that an appeal shall lie from those orders as given therein and from no others. The first in the list of an order is superseding an arbitration. In my view, the impugned order amounts to supersession of an arbitration. Therefore, the appeal was maintainable." In Chandra v. Godavari (AIR 1972 Pat. 340), it has been held : "Under the Act the phrase 'superseding an arbitration' in clause (i) of sub -section (1) of section 39 has got to be assigned a meaning with reference to the power of the Court to supersede an arbitration under section 19 of the Act. ........ In my opinion, therefore, the order recalling the reference is not appealable under section 39 of the Act. I am of the opinion in the first instance that when the Court has got power to make a reference under section 23 of the Act, it must be assumed that the Court has got power to recall the reference. ..... But here, an order making a reference under section 23 of the Act is, undoubtedly, not appealable and, therefore, an order recalling a reference also is not appealable."