Karnataka High Court
M.A. Mohd. Amanulla vs B.R. Chandrashekar on 23 August, 2004
Equivalent citations: AIR2005KANT17, 2005(1)ARBLR227(KAR), ILR2004KAR4292, 2004(7)KARLJ453, AIR 2005 KARNATAKA 17, 2004 AIR - KANT. H. C. R. 3207, 2005 (1) ARBI LR 227, (2004) ILR (KANT) (4) 4292, (2005) 1 ARBILR 227, (2004) 4 ICC 715, (2005) 1 CIVLJ 445
JUDGMENT Chidananda Ullal, J.
1. This appeal is filed under Sub-section 4 of Section 37 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as the 'Act') to challenge the order dated 15.4.2004 in A. S. No. 15001/ 2004 passed by the learned IV Additional City Civil Judge, Mayohall unit; Bangalore City (henceforth referred to as 'City Civil Judge'), in passing whereof, the learned City Civil Judge had dismissed the petition of the appellant filed under Section 34 of the Act. Before proceeding further, 1 feel it appropriate to setout the brief facts of the case, which are as hereunder:
2. The appellant had filed an application under Section 34 of the Act as against the respondent before the learned City Civil Judge to challenge the order passed by the Arbitrator holding that the agreement dated 4.10.2000 was not properly stamped as required under the relevant provision of the Karnataka Stamp Act, 1957 and as such, the same was not admissible in evidence. In doing that, as I see, the Arbitrator had rejected the plea of the appellant and therefore the appellant had filed an application for setting aside the order of the Arbitrator terming the same as an 'interim award' whereas it was neither an award nor interim award but it was only a finding on the point of admissibility of the agreement in evidence and nothing beyond. All that the Arbitrator did, as I see, was to reject the plea of the appellant. The learned City Civil Judge in passing the impugned order had held that the order passed by the Arbitrator was neither perverse nor capricious. The appellant herein had resorted to the instant appeal to challenge that order of the learned City Civil Judge limited to affirming of the finding of the Arbitrator on the point of admissibility of the document in evidence and strictly speaking the Arbitrator had passed neither an award nor arbitrary award much less an interim award as contended by the appellant.
3. I heard the able argument of the learned Counsel appearing for the contending parties. They also filed written arguments at the instance of the Court. The learned Counsel appearing for the appellant had filed the following authorities in support of his argument:
1) RIYAZ KHAN AND ORS. V. MODI MOHAMMED ISMAIL AND ORS.,
2) MAHADEVA v. COMMISSIONER MYSORE CITY CORPORATION, MYSORE AND ORS.,
4. The learned Counsel for the respondent, Sri Vijay, had argued at the outset that the application of the appellant filed under Section 34 of the Act before the learned City Civil Judge was not maintainable as there was no award came to be passed by the Arbitrator. He further argued that the instant appeal is not maintainable since the learned Civil Judge neither set aside or refused to set aside the award passed by the Arbitrator and that in passing the impugned order, the learned Civil Judge had only endorsed the finding of the Arbitrator with regard to the admissibility of the document in evidence. Hence, he prayed that the appeal be dismissed on the point of maintainability.
5. The learned Counsel appearing for the respondent, Sri Vijay had filed the following authority in support of his argument:
L H SUGAR FACTORY, PILIBHIT v. MOTI, AIR 1941 Allahabad 248
6. Having gone through the authorities cited by the learned Counsel appearing for the parties, I feel that they are not relevant for the point at controversy in the appeal and as such they are of no assistance to me in the matter of disposal of the appeal, for I am of the opinion that the appeal can as well be disposed off by me on placing the reliance on the very provision under Section 37 of the Act. The said provision of law reads as follows:
"37. Appealable orders:- (1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely:-
(a) granting or refusing to grant any measure under Section 9;
(b) setting aside or refusing to set aside an arbitral award under Section 34,
2) An appeal shall also lie to a Court from an order of the arbitral tribunal-
(a) accepting the plea referred to in Sub-section (2) or Subsection (3) of Section 16; or
(b) granting or refusing to grant an interim measure under Section 17.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
7. By going through the provision under Section 37(1)(b) of the Act as above, it is clear therefrom that filing of an appeal arises only when there is either setting aside of the award or refusing to set aside the award. Admittedly, as argued by the learned Counsel for the respondent that there was no award as such, but for the reason best known to the appellant himself by terming the order of the Arbitrator as an 'interim award' he had filed an application before the City Civil Court, According to me, when there was no award, the question of preferring an application under Section 34 of the Act as resorted to by the appellant as against that order passed by the Arbitrator before the learned City Civil Judge did not arise at all. Therefore, in my considered view, on the point of maintainability alone, the instant appeal is liable to be rejected.
8. Even if it is the case of the appellant that the Arbitrator on the point of admissibility in evidence of the document had wrongly been decided, the appellant would have had the patience till the Arbitrator passes an award. Whatever may be the case, when there was no award, the question of challenging the order passed by the Arbitrator before the learned City Civil Judge in filing the application under Section 34 of the Act did not arise at all. Therefore, I am of the considered view that the respondent is entitled for cost in this appeal, the reasons are as follows:
1) That the appellant had successfully stalled the proceedings before the Arbitrator at the cost of the respondent; and secondly
2) That the respondent had to come before this Court to oppose the instant appeal of no consequence.
The cost I moderately assess at Rs. 3,000.00. Let that cost be now paid by the appellant to the otherside within a period of three months from this day. In the event the appellant were not to pay the cost as herein above directed, the respondent is at liberty to recourse to law to recover the same as if he is holding a money decree as against the appellant.
The appeal stands dismissed with cost as above decree to follow.