GOMRAJ PUNAMCHAND Vs. SOGMAL DHANAJI

JUDGEMENT

(1.) AN interesting point of law under the Indian Arbitration Act has been argued by Mr. Subramaniam in this case. The facts lie in a short and narrow compass. There were certain disputes between the parties in relation to a partnership concern of theirs. The disputes were referred to arbitration and there was a settlement of the matter by the arbitrators, the terms of which are to be found set forth in a document known as parikhat, Ex. B -2, and happened to have been carried out also by an entry in the katha of the defendant, Ex. B -1. The suit, out of which this appeal arises, was instituted for the recovery of Rs. 2,261 alleged to be due to the plaintiff by the defendant on the basis of the settlement evidenced by Exs. B -1 and B -2. The case of the plaintiff is that what took place was merely a mediation and not a strict arbitration proceeding which resulted in an award as such. The defendant in his written statement pleaded that the parikhat and the katha referred to in the plaint constituted by themselves the award of the arbitrators and that the suit was really one to enforce the award evidenced by those two documents and that the suit was unmentionable because it sought to enforce the award in seeking to enforce the documents executed pursuant to the award. There were two issues raised in the case:

(2.) The learned City Civil Judge answered both issues in favour of the plaintiff and decreed the suit. The defendant appeals. On issue (2) there is no argument advanced before me, and it is unnecessary to consider the correctness of the finding reached by the Court below on that. The real point of the learned advocate for the appellant is that the documents, Exs. B -1 and B -2, read together, themselves constitute the award in the case. In support of his contention he has drawn my attention not merely to the recitals of the documents, but also to the evidence of D.W. 1 in the case, that is to say, the defendant himself, as against which there is no evidence on the side of the plaintiff at all. What exactly Exs. B -1 and B -2 are is stated by D.W. 1 in his evidence as follows:

(3.) A point has also been mooted by learned Counsel, which is founded upon the ruling of Mr. Justice Somayya in Rashid Jamshed Sons & Co. v. : AIR1945Mad371 which has been confirmed by a Letters Patent Appeal Bench of this Court in Moolchand Jothajee v. : AIR1946Mad346 . The point is that whether the suit is one for enforcement of the award directly or for enforcement of a certain document executed pursuant to the award, it makes no difference to the application of the principle laid down in those two decisions. The reasoning of those decisions is that where a party is relying upon an award for the reliefs he has prayed for, he is seeking in effect a decision upon the existence and effect or validity of the award. It is on this basis that those two decisions held a suit for enforcement of an award to be within the mischief of Clause (2) of Section 31 of the Arbitration Act. Learned Counsel argues that if that is the basis of the unmaintainability of a suit for enforcement of an award that basis may equally apply to the case of a suit for enforcement of a document executed pursuant to the award. The argument does not seem to be without force. But I am relieved of the responsibility of pronouncing upon the merits of the argument for the reason that it seems to have been common ground in the Court below that if the suit was to be regarded as not in enforcement of the award directly, but only in enforcement of a document executed pursuant to the oral award it would fall outside the mischief of the Arbitration Act. That being the basis on which this litigation must be decided, I am clearly of opinion that the view of the Court below is right and that this appeal must fail. It is accordingly dismissed with costs.