SURENDRA KAPOOR Vs. PRABIR KUMAR

JUDGEMENT

(1.) Heard. This appeal arises from the order dated 6-3-2007 passed in Chamber Summons No. 148 of 2007. By the impugned order, the Chamber Summons No. 148 of 2007 taken out by the appellant has been dismissed. The said chamber summons was taken out by the appellant raising the point that the award passed by the learned arbitrator was a nullity on the ground that the arbitrator could not have assumed powers of arbitrating the case in the absence of agreement between the parties to refer the dispute to arbitral Tribunal and that there was no such agreement between the parties.

(2.) Reliance was sought to be placed in the decisions of the Apex Court in the matters of Bihar State Mineral Development Corporation and another vs. Encon Builders (I) (P) Ltd. , reported in (2003) 7 SCC 418, Kiran Singh and others vs. Chaman Paswan and others, reported in AIR 1954 SC 340 and K. K. Modi vs. K. N. Modi and others, reported in (1998) 3 SCC 573. Attention was also sought to be drawn to the decision of the Apex Court in the matter of Srimathi Kaushalya Devi and others vs. Shri K. L. Bansal, reported in 1969 (1) SCC 59 and of the learned single Judge in the matter of Pride of Asia films vs. Essel Vision, reported in 2003 (5) Mh. L. J. 769 = 2004 (5) Bom. C. R. 870. On the other hand, the learned Advocate appearing for the respondent, placing reliance in the decision of the Apex Court in the matter of krishna Bhagya Jala Nigam Ltd. vs. G. Harishchandra Reddy and anr. , reported in JT 2007 (2) SC 447, submitted that in the absence of plea about absence of jurisdiction being raised before the learned arbitrator, in view of section 16 (2) read with section 4 of the Arbitration and Conciliation Act, 1996, hereinafter called as "the said Act", the point of absence of such an agreement should be deemed to have been waived by the appellant and, therefore, the appellant is not entitled to raise such objection at this stage.

(3.) It is not in dispute that the appellant was a party to the proceedings before the arbitral Tribunal. It is also not in dispute that the appellant did not raise the point of absence of arbitration clause or absence of agreement between the parties to refer the dispute for arbitration either in the written statement filed by the appellant before the arbitrator or at any time in the course of the proceedings before the arbitrator. It is also undisputed fact that the award on being declared, same was sought to be challenged by the appellant by filing arbitration Petition No. 130 of 2006. The award was passed on 25-6-2004. The said arbitration petition was withdrawn by the appellant. It was only after issuance of the warrant of attachment of the property in the execution proceedings that the present chamber summons was sought to be taken out raising the point of nullity of the award on the ground stated above. The learned single Judge has rejected the said challenge and dismissed the chamber summons.