HIND CONSTRUCTIONS LTD. Vs. DWARIKA NATH SEN

JUDGEMENT

(1.) THIS is an appeal by deft. 1 against a decree passed by the learned Subordinate Judge, 2nd Ct., Midnapore, in a suit brought for enforcement of an award. The facts giving rise to this appeal are briefly these : The deft. 1 (Messrs. Hind Constructions Ltd.) is a firm of contractors who undertook the construction work of the Reservoir Tank of the B. N. Rly. Co. at Gidni. Of this work deft. 1 gave a subcontract to the pltfs. It is the pltf's case that they have done the work but have not been paid their dues in full. There was a dispute between the parties in relation to this sub -contract with regard to the amount of work done by the pltfs. & the dues payable to them under the terms of the subcontract. The dispute was eventually referred to the arbitration of one Mr. Tarapada Dey on 30 -8 -1945. A letter of reference which is Ex. 1 in the case, printed at p. 2, Part II of the paper book, was signed on behalf of deft. 1 by H. Bihani, & on behalf of the pltfs. by pltf. 1. Upon this reference an award followed. The award was given on 5 -3 -1946, & under the award the pltfs. became entitled to a sum of Rs. 12380/1/6. As the deft. 1 did not pay this amount to the plffs., the pltfs. applied before the learned Subordinate Judge for enforcement of the award under the provisions of the Indian Arbitration Act giving rise to the suit out of which the present appeal has arisen. In the suit the defence of the deft. 1 was 'inter alia' that the award was invalid as the reference itself was not valid under the law, Bihani having no authority to refer the matter to arbitration on behalf of deft. 1. It was also taken as a defence that the award was vitiated by misconduct on the part of the arbitrator, & thirdly, as it appears from the judgment of the learned Subordinate Judge, that the award was filed beyond time prescribed by law & as such also it was invalid.

(2.) THE learned Subordinate Judge held against the deft. 1 on all these points and decreed the pltf's. suit. Against this decision the present appeal has been preferred. In this appeal Mr. Das the learned counsel appearing for the applt. has raised three contentions: (1) that there was no valid reference to arbitration as Bihani had no authority to refer the matter to arbitration on 'behalf of deft. 1, (2) that the award was Vitiated by misconduct on the part of the arbitrator, and (3) that the award was given after the time prescribed by law for such award had expired and as such also it was invalid.

(3.) IN answer to this preliminary objection, Mr. Das has not contended that this is a case where an appeal would lie under Section 17 but he has contended that it is substantially a case which comes under Section 39(1)(vi) and as such the present appeal is maintainable. Mr. Das has also contended that as in the present case one of the points is that there was no valid reference to arbitration, the appeal -ability of the decree will hot be controlled by the provisions of the Arbitration Act but an appeal will lie under the general law, that is, it is not strictly an appeal against a decree on award under the provisions of the Arbitration Act as, in his submission, the reference being invalid, the award itself is a nullity and there is in the eye of law no award. In support of this position Mr. Das has relied upon the decision of the Judicial Committee in the case of 'Chhabalal v. Kallu Lal,' 73 I.A. 52.