Posted On by &filed under High Court, Madras High Court.

Madras High Court
Nemichand Sowcar vs Kesarimull Sowcar And Anr. on 4 October, 1928
Equivalent citations: (1929) 56 MLJ 35
Author: K Sastri


Kumaraswami Sastri, J.

1. This is an application for a decree in terms of an award which is said to have been given by certain arbitrators.

2. The award was brought to’ Court by one of the arbitrators at the instance of the petitioner. There is a dispute as to the validity of the award. The petitioner says that the award was by five arbitrators but we find that only one has signed it and he has presented it in Court. The respondents say that the reference was only to two arbitrators of whom only one has signed the award. In any view it seems to me that the award cannot be enforced as an award because it is not signed by five arbitrators as stated by the petitioner or by two as stated by the respondents.

3. Under the Indian Arbitration Act there has to be a written submission to arbitration and under the Original Side Rules it is the arbitrators that have to file the award in Court with the submission at the request of the parties.

4. Order 38, Rule 7 of the Original Side Rules says that an arbitrator or umpire desirous of filing an award in Court shall present to the Registrar a request to file the same, duly stamped, together with the submission to arbitration, and the award or a signed copy there of The said award or copies shall, unless otherwise ordered, be signed by the arbitrator or umpire.

5. Section 11 of the Indian Arbitration Act says that when the arbitrators or umpire have made their award they shall sign it.

6. Sub-clause (2) says that the arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award or a signed copy of it, to be filed in the Court; and notice of the filing shall be given to the parties by the arbitrators or umpire.

7. If the Indian Arbitration Act applies, it is clear that the award cannot be made a rule of Court because the submission is not filed as required by the rules. And it is admitted by the parties that the award has not been signed by all the arbitrators be it two or five.

8. Mr. Ramaswami Aiyar for the petitioner contends that the case does not fall under the Indian Arbitration Act because a suit cannot be filed with or without the leave of the Court upon the cause of action. It does not appear to me that this objection is valid because the parties reside in Madras, one of the properties is situate in Madras and with the leave of the Court, a suit for partition can be filed. So far as the properties situate outside British India are concerned, they will be the subject-matter of a separate suit in the state where they are situate, but the properties sitate in British India can be divided with the leave of the Court as one item of immoveable property is situate in Madras and the parties reside in Madras.

9. Even assuming that the case does not fall under the Indian Arbitration Act but under Schedule II of the Civil Procedure Code, I must be satisfied that the award is an award which can be enforced. Section 20 of Schedule II of the Civil Procedure Code says that where any matter has been referred to arbitration without the intervention of a Court, and an award has been made thereon, any person interested in the award may apply to any Court having jurisdiction over the subject-matter of the award that the award be filed in Court.

10. Section 10 says that the award shall be signed by all the arbitrators.

11. Admittedly this award has not been so signed.

12. Mr. Ramaswami Aiyar’s last contention is that the respondents have accepted the award and agreed to pay the petitioner a certain sum of money and that I can enforce that portion of the award. There is no provision either in the Civil Procedure Code or the Indian Arbitration Act empowering me to make part of an award a rule of Court. The award should be looked into as a whole and the rights of the parties worked out. If the award has been accepted and a special contract has been entered into by the counter-petitioners to pay the petitioner a sum of money, his remedy is to file a suit on that contract and get a decree for the payment of the money. I do not think his remedy is to come to Court and say that that portion of the award should be made a rule of Court and execution should issue as regards that portion alone.

13. I therefore dismiss the application with taxed costs.

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