TMI Blog1953 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction and not the Calcutta High Court as regards the present dispute. In the result, the two appeals must be dismissed - C.A. 133 OF 1952 - - - Dated:- 16-4-1953 - MEHR CHAND MAHAJAN, VIVIAN BOSE AND B. JAGANNADHADAS, JJ. JUDGMENT On the 28th of January, 1948, the appellant, Khumba Mawji, entered into an agreement with the respondent, the Dominion of India (as it then was) to manufacture and supply, to the Bengal Assam Railway, stone boulders and ballast from Chutiapara quarry. The agreement was entered into at Calcutta, though the work was to be carried out in Assam. It was a term of the agreement that if any differences arose between the parties, they were to be referred to the arbitration of two persons, one to be nominated by each side, and that if the arbitrators were not able to agree, the matter was to be decided by an umpire to be nominated by both the arbitrators. Differences having, in fact, arisen, the dispute was referred to two arbitrators and on their disagreement the matter went up to an umpire, one Mr. P. C. Chowdhury. The umpire made two awards on or about the 20th of July, 1949, in favour of the appellant. By one of them he directed a sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respective sums of Rs. 3,67,000 and Rs. 83,000 duly signed by the Umpire Mr. P. C. Chaudhury for filing. Please therefore direct the office to file the said two Awards and to issue notices in respect thereof expeditiously. After some correspondence between the Deputy Registrar and the solicitors calling for some further papers, the Deputy Registrar informed the solicitors by his letter dated the 29th August, 1949, that the award had been filed and asked the solicitors to take out from the court and serve on the parties concerned the statutory notice fixing a date for judgment upon the said award by the Commercial Judge of the court. Notices were thereupon issued to both the parties in the following terms: To 1. Kumbha Mawji. 2. The Dominion of India represented by the Assam Railway. Take notice that the Award of the Umpire appointed in the matter of the above Arbitration Agreement had been,filed on the 29th day of August, 1949, and that the Court hearing the commercial causes will proceed to pronounce judgment on such award on 7th day of November, 1949. Dated the 29th day of August, 1949. This notice was served on the respondent on the 2nd of September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uhati court as well as the Calcutta High Court admittedly had jurisdiction over the subject-matter of the reference. The point taken, however, on behalf of the respondent in their objections was that, having regard to section 31, sub-section (4) of the Act and to the fact that an application under section 14, sub- section (2) for a direction to the umpire to file the award was made to the Gauhati court as early as the 10th August, that court was seized of the matter from that date, and that therefore any application under section 14 OD a later date to another court, though otherwise competent, was barred under section 31, sub-section (4). This was the main question that was seriously pressed before the learned single Judge. But the learned Judge was of the opinion that section 31 (4) related only to applications made during the pendency of a reference to arbitration and not to applications made subsequent to the making of an award. He thought that in respect of applications for filing an award the exclusive jurisdiction was determined with reference to the question as to which was the competent court in which the award was, in fact, first filed under section 14, sub- section (2) (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into court by a party he should have the authority of the umpire for doing so. This is, at any rate, the assumption on which the question has been dealt with in the High Court, and it has not been contended before us that the filing of the award into court by a party himself though without the authority of the umpire to do so on his behalf, is sufficient compliance with the terms of this section. The learned Judges of the High Court were of the opinion that the authority of the umpire empowering the appellant to file the original awards into Court on his behalf has not been made out on the evidence in the case. The argument stressed before us is that in para 7 of the affidavit dated the 19th of November, 1949, filed on behalf of the appellant in the High Court on the 24th of November, 1949, it is stated that On or about the 21st July, 1949, the said Umpire made over the said original award to this deponent for filing. It is urged that this is an averment of the requisite authority from the umpire, and it is point- ed out that this assertion has not been contradicted on the other side by any reply affidavit. It is contended therefore that the filing was valid. The learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that no objection was taken by the respondent to the point being raised. It has not been suggested before us that this statement in the judgment was in any way erroneous. Appellant's counsel argued that if the learned Judges on appeal felt inclined to dispose of the case on this point alone, they should have called upon the umpire to clarify whether or not the appellant had his authority, or given an opportunity for production of his affidavit in support of the authority. Learned counsel presses that an. opportunity should now be allowed. It does not appear, however that it is either necessary or desirable at this stage and after this lapse of time to allow this matter to go back for that purpose. Because, apart from the question of mere want of proof of authority, it is clear that in a case of this kind and on the facts above stated, it was incumbent on the appellant to allege categorically that, in terms of sub-section (2) of section 4, he had the requisite authority of the umpire. That allegation is wanting not only -in the affidavit dated the 19th of November, 1949, but what is more important is that when the awards were filed into court on the 17th of August, 1949, by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the awards does not amount to the filing of them. Here again, the learned Judge has overlooked that under section 14, sub-section (2) the actual filing by the umpire is not essential, but that it is sufficient if the umpire causes the awards to be filed. It is not suggested that sending by post in compliance with the notice is not such causing . It appears to us therefore clear that the filing of the awards in the Gauhati court must be taken to be on the 24th of August, 1949. So far as the Calcutta court is concerned, though no doubt the awards were, put into that court by the appellant's solicitors on the 17th August, 1949, it appears clearly from the notice issued by the Registrar dated the 30th of August, 1949, that the awards were treated as filed only on the 29th day of August, 1949. Paragraphs 8 and 9 of the respondent's affidavit filed in the Calcutta court on 24th of November, 1949, contain categorical assertions that so far as the Gauhati court is concerned, the copies of the awards were filed by the umpire on the 24th of August, 1949, while as regards the Calcutta High Court the awards were filed on the 29th of August, 1949. These assertions have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also the contention before us of the counsel for the appellant, which requires closer examination. Section 31 of the Indian Arbitration Act of 1940 is in the following terms: (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. (2)Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court. (3)All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court. (4)Notwithstanding anything contained elsewherein this Act or in any other law for the time being in force, where in any reference an application under the Act has been made in a Court competent to entertain it, that Court alone shall have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict and scramble is equally essential whether the question arises during the pendency of the arbitration or after the arbitration is completed or before the arbitration is commenced. There is no conceivable reason why the Legislature should have intended to confine the operation of subsection (4) only to appli- cations made during the pendency of an arbitration, if as is contended, the phrase in any reference is to be taken as meaning in the course of a reference . It may be noticed that the Arbitration Act deals with arbitration of three different categories: (1) arbitration 892 without intervention of the court, dealt with in sections 3 to 19 comprising Chapter IT; (2) arbitration with the intervention of a court where there is no suit pending provided in section 20 which is a separate Chapter III; and (3) arbitration in suits dealt with in sections 21 to 25 comprising Chapter IV. The jurisdiction as regards the latter two classes of arbitrations in respect of certain matters is provided in the very provisions relating to those two classes of arbitrations, that is, section 20, sub- section (1) and section 21. Sub-section (1) of section 31 appears to refer only to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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