HABIBA KHATOON Vs. NAWAB LAL

JUDGEMENT

(1.) THE question of law arising in this case is whether the defendant is entitled to rely upon an award of arbitrators (Ext. C) dated the 7th April, 1948, in support of his defence though the award was not filed in court under Section 14 of the Arbitration Act and no decree was granted in terms of the award under the provisions of Section 17 of the same Act. It was argued on behalf of the defendant-appellant that the lower appellate Court was erroneous in holding that the award cannot be taken into evidence, nor can it be set up by the defendant in support of his own case. In support of this argument learned Counsel relied upon a decision of a Division Bench of this High Court in Government of India v. Jamunadhar Rungta, AIR 1960 Pat 19, consisting of Rai and S. C. Prasad, JJ. holding that the existence of an arbitration agreement or award may be set up as a bar in defence to a suit based on the original cause of action arising out of rights and titles which formed the subject matter of such an agreement or award THE learned Judges constituting the Division Bench proceeded upon the view that Section 32 of the Arbitration Act only barred a suit involving a decision upon the existence, effect or validity of an arbitration agreement or award, but the section did not preclude the defendant from putting forward in defence an award which had been fully performed by him but which had not been tiled under Section 14 of the Arbitration Act and according to which a judgment was not pronounced or a decree given under Section 17 of the Act. In our opinion the decision of this case is not authoritative because it is contrary to the decision of the Full Bench of this Court in Seonarain Lal v. Prabhu Chand, AIR 1958 Pat 252 and also to an earlier Division Bench decision of this Court in Lachhuman Singh v. Makar Singh, ILR 32 Pat 604: (AIR 1954 Pat 27). In the Full Bench decision, Sinha, J., who pronounced the opinion of the Full Bench, rejected the argument advanced by Mr. B, C. De in that case that though a suit may be held to be barred except in accordance with the provisions of the Act, a defence was not barred, and, therefore, a person could refer to an award by way of defence. This argument was rejected by the Full Bench on the ground that the only way to challenge the validity or otherwise of an award was by filing the award in Court under the Act and taking a decision upon it in terms of the award, and, therefore, the matter could not be agitated even by way of defence in proceeding other than a proceeding envisaged by the Act itself. At page 257 of the report, Sinha, J. states as follows :

(2.) FOR these reasons we hold that there is no merit in this second appeal, which is accordingly dismissed with costs.