JUDGMENT
P.C. Ghose, J.
1. This is an application filed by the petitioner inter alia praying for an order that–
(a) Delay in making the application for setting aside the award be condoned.
(b) The award dated 20th November. 1998 be set aside and/or declared null and void.
(c) The decree passed on 5th March, 1999 in terms of the said award be recalled and/or set aside.
2. This Is an application filed by the petitioner inter alia challenging an award dated 20th November, 1998 published by the learned Arbitrator. It further appears that the decree has already been passed in terms of the said Award on March 5, 1999. The petitioner has filed this application on March 9,1999 challenging the said Award.
3. The points have been taken by the petitioner In this application are as follows :-
a. The Award should be declared as null and void inter alia on the grounds-
(i) This Hon’ble Court had no jurisdiction to adjudicate upon the disputes and differences that have arisen between the parties Inasmuch as this Hon’ble Court had no inherent Jurisdiction to entertain an application for appointment of an arbitrator.
(ii) The petitioner Darjeellng Municipality neither carries on business nor resides within the original Jurisdiction of this Hon’ble Court. The contract between the parties was executed at Darjeellng, The entire work under the contract had been carried on a Darjeellng. No part of the cause of action has arisen within the Jurisdiction of this Hon’ble Court
4. Learned Advocate appearing on behalf of the petitioner submitted that this Hon’ble Court is not the proper court for constraining an application for appointment of Arbitrator In accordance with section 2(c) of the Arbitration Act. 1940. Accordingly, he submitted that as the reference was Incompetent, the award is invalid and a nullity. In support of his submission he has relied upon a Judgment (The Union of India v. Shri Om Prakash).
5. He further submitted that the agreement between the parties provide that courts in Calcutta will have Jurisdiction. According to him, parties cannot by agreement confer jurisdiction of this court which does not possess
any Jurisdiction. In support of his such contention he relied upon a Judgment (Hakam Singh v. M/s. Gammon (India) Ltd.).
6. He further submitted that this Hon’ble Court did not have any Inherent Jurisdiction to appoint an arbitrator and as such the arbitrator cannot make any difference whatsoever. He also submitted that the degree passed by this court on the basis of the Award published by this Arbitrator cannot be executed and the same should be set aside as the decree passed by this Hon’ble Court without any Jurisdiction and therefore is a nullity.
7. He further relied upon a Judgment (Kiran Stngh &Anr. v. Chaman Paswan and others] and submitted that at any stage even at the stage of the execution and even in collateral proceedings, If the point of invalidity is set up by the parties where a court has passed an decree without Jurisdiction and became nullity and thereby the same is of no effect.
8. He further contended that If the Judgment debtor can satisfy the court that decree is a nullity, such decree should be set aside on the grounds that the court has not any jurisdiction. In support of his submission he relied upon a Judgment reported in AIR 1969 Calcutta 361 (Basanta Pandey and Another v. Sudhir Lal Seal and Others).
He further submitted that the delay should be condoned by this Hon’ble Court and the petitioner should not be penalised from the lapse on the part of its officers and legal advisors. In support of his submissions he relied upon the Judgments (Collector. Land Acquisition, Anantnag & Ors.v. Mst. Katijl &. Ors.) and 1990(2) CLJ 73 (State of West Bengal v. West Bengal Judicial Service Association).
9. He further submitted that the award also liable to be set aside on merits. He drew my attention to the contract and submitted that Article 38 of the said contract between the parties is that “no claim for Idle labour will be entertained under any circumstances whatsoever”. According to him, the learned Arbitrator Published an Award on the said account for a sum of Rs. 18.02.982/- out of which Rs. 8.66.310/- being the alleged cost due to idle labour. According to him, such claim Is not on terminable under the contract Itself.
10. He further contended that the learned Arbitrator travelled outside his Jurisdiction in making the said Award. He has exceeded his Jurisdiction by holding on larglng the scope of the contract. In support of this submission he has relied upon a Judgment (Associated Engineering Company v. Government of Andhra Pradesh and Anr.).
11. Accordingly, he submitted that the decree and/or the said Award should be set aside and/or should be quashed as Is a nullity.
12. Mr. Banerjee appearing on behalf of the respondents submitted that the question of jurisdiction cannot be challenged at this stage. The order of reference passed by this court and the petitioner is now estopped from contending since the petitioner has taken part in the said arbitration proceedings and thereby now estopped from containing and raising such
plea before this court. In support of his contention he relied upon the judgments (Prosun Roy v. Calcutta Metropolitan Development Authority and Another) and AIR 1989 J&K 16 (Union of India v. M/s. Sohan Singh & Company). After the decree has been passed the Award cannot be challenged. In support of his submission he relied upon a judgment (Vineet Kumar v. Smt. Bhagwandevi) and the Judgment of the Full Bench of this High Court (Saha and Co, v. Ishar Singh Kripal Singh & Co.).
13. In reply, the learned Advocate appearing on behalf of the petitioner submitted that the said Judgments are not applicable in as much as those Judgments dealt with the matter where a valid decree has been passed and the decree is not a nullity or non est. In these circumstances, he submitted that the said judgments are not applicable In this matter.
14. After considering the facts and circumstances of this case as it appears from the records that no cause of action arose within the Jurisdiction of this High Court further it has been hold by the Supreme Court that an order or decree which is a nullity can be challenged at any stage Including at the time of execution of the decree. It has also held by the Supreme Court in Chiranjilal Shrilal Goenka v. Jasglt Slngh that decree passed without jurisdiction is a nullity and is nonest. It’s a fact that the petitioner Darjeellng. Municipality neither carries on business nor resides within the Original Side Jurisdiction of this Original Side and furthermore, the entire work under the contract have been carried on at Darjeeling and as such the order passed by this court in my opinion Is a nullity and is non est.
Accordingly, this application is allowed, the award is set aside and the decree passed on the basis of such award is also set aside.
15. Application allowed