Patna High Court
Hari Narayan Deo vs Rama Nand Bhagwan And Anr. on 19 May, 1995
Equivalent citations: 1995(2)BLJR809
JUDGMENT Narayan Roy, J.
1. The question to be decided in this civil revision application is as to whether a suit filed under Section 9 of the Code of Civil Procedure Code (hereinafter to be referred to as the Code) is barred under Section 32 of the Arbitration Act (hereinafter to be referred to as the Act) even if the Award made under the Act has not been made rule of the Court but the same was registered under Section 17(1)(b) of the Registration Act.
2. It appears that the suit in question was filed by the plaintiff-opposite party No. 1. In the suit, the petitioner appeared and filed an application under Order 7 Rule 11 of the Code questioning the jurisdiction of the Court to hear the suit as the same was barred under Section 32 of the Act. The application aforementioned, however, was heard as a preliminary issue and the learned Court below after hearing the parties rejected the same holding that Section 32 of the Act is not a specific bar in the present suit, which has been brought under Section 9 of the Code since the Award in question has not been made rule of the Court. The order passed by the learned Sub-Ordinate Judge is the subject matter of this civil revision application.
3. The short facts required to be seen far disposal of this civil revision application are as under; It appears that the question of partition of the properties among co-sharer including the plaintiff and the defendant was referred to the Arbitrators in a private reference and the Arbitrators on 2.12.1976 passed an Award which was signed by the parties and the same was registered under Section 17(1)(b) of the Registration Act on 25.1.1978. After lapse of several years when the parties were dissatisfied with arrangement, the suit in question was brought by the plaintiff-opposite party No. 1 for partition.
4. Mr. N.K. Prasad, learned Counsel appearing on behalf of the petitioner, submitted that in view of the Award in question Section 32 of the Act operated as a specific bar in the suit. He further submitted that in view of the admission made by the plaintiff in the plaint about the arbitration Award, the learned court below should not have held otherwise and should have held that the suit, as such, in the present form was not maintainable. He further submitted that from a bare reading of the plaint it appears that the plaintiff has challenged the Award made by the Arbitrators as referred to above and the learned Court below, thus, was wrong in holding that the plaintiff could have brought a suit to set aside the Award in the present suit itself.
5. Mr. N.K. Prasad, has further contended that it has been settled by the several decisions of this Court as well as of the Supreme Court that even if an Award not being made rule of the Court is binding upon the parties when the same has been registered under Section 17(1)(b) of the Registration Act.
6. On the other hand, Mr. Eqbal, learned Counsel appearing on behalf of the opposite parties, contended that since the alleged Award was not made rule of the Court, it was not enforceable and the same was not binding upon the parties and, therefore, the suit in the present form was maintainable and it cannot be said to be barred under Section 32 of the Act. He further submitted that since the properties in question is still joint, the suit for partition as brought by the plaintiff was maintainable. Mr. Eqbal has further submitted that since the Award in question was not filed in the Court for making it rule of the Court by the defendant, they cannot raise the question of validity of the Award by way of defence.
7. Mr. N.K. Prasad, learned Counsel appearing on behalf of the petitioner, in support of his proposition relied upon a case Govt. of India and Anr. v. Jamunadhar Rungta and Ors. In the aforesaid case a Bench of this Court has held that an arbitration Agreement or an Award can neither be challenged nor enforced by a suit, no proceeding or action may be taken which shall effect in. any way an arbitration agreement or award otherwise then as provided in the Act. It has further been held 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 right, and title, which forms the subject matter of such an agreement or Award. It has also been held that even if no such defence has been taken up at any stage of the suit before the Court of law, it comes to its notice that the subject matter of the suit has been adjudicated upon by an arbitration in pursuance of an agreement between the parties according to law and the parties have accepted the Award and have acted upon it, or the prescribed period for challenging the Award has elapsed, it is the duty of such a Court to refuse to give any relief to the plaintiff or plaintiffs of such a suit.
8. In the light of this decision it has been urged by Mr. N.K. Prasad that since the parties have accepted the Award and the same has not been challenged in the Court within the prescribed period Laid down under the Arbitration Act, it was the bounden: duty of the Court to refuse to give any relief to the plaintiff.
9. Mr. N.K. Prasad has further relied upon the case of Satish Kumar and Ors. v. Surinder Kumar and Ors. . In the case of Satish Kumar and Ors. v. Surinder Kumar and Ors. (supra), it has been held by the Supreme Court that an Award given under the Arbitration Act on a private reference even if the same has not been made rule of the Court is binding upon the parties and the rights flowing from the award are enforceable. It has further been held that if the Award is registered under Section 17(1)(b) of the Registration Act, it will be a valid Award having binding in nature upon the parties and it shall not be waste paper.
10. On the other hand, Mr. Eqbal, the learned Counsel for the opposite parties has relied upon the case of Lachhuman Singh v. Makar Singh and Ors. 1953 BLJR 498; in the case of Rambilas Mahto and Ors. v. Babu Durga Bijai Prasad Singh and Ors. . He has also placed reliance upon a case of Sanjay Kaushish v. D.C. Kaushish and Ors. .
11. In the cases referred to above save and except the case , it has been held that the Award if not made rule of the Court is not enforceable in law and the same is not binding upon the parties. In the case of Sanjay Kaushish v. D.C. Kaushish and Ors. (supra) the facts are quite different and it does not apply in the facts and circumstances of this case.
12. A full Bench of this Court in a case of Seonaram Lal v. Prabhu Chand, considering the case reported in 1953 BLJR 498 has held that an Award if the same has not been made rule of the Court was not binding and operative upon the parties and the decision has relied upon the case referred in AIR 1958 Patna aforementioned.
13. All these questions referred to above, however, have been taken into consideration by the Supreme Court in the case of Satish Kumar and Ors. v. Surinder Kumar and Ors. (supra) and the decision rendered in the case of Seonarain Lal v. Prabhu Chand which relied upon the previous decision of this Court, has been overruled.
14. In view of the decisions aforementioned now the question remains as to whether the suit in present form is maintainable in view of the specific bar Laid down under Section 32 of the Arbitration Act. In my opinion, the question aforementioned is no more res-integra in view of the decision rendered in the case of Satish Kumar and Ors. v. Surinder Kumar and Ors. (supra). I have already noticed above that the Award, as such, has not been challenged for setting aside the same under the Arbitration Act within the prescribed period and in that view of the matter, the learned Court below was wrong in saying that the plaintiff can bring the suit for setting aside the Award. The Award in question, therefore, was operative and binding upon the parties.
15. In the instant case I find that the Award was made by the Arbitrators and the same was duly signed by the parties and registered under Section 17(1)(b) of the Registration Act and the same was acted upon by the parties. Merely because the award was not made rule of the Court, it cannot be held that the same is not binding upon the parties.
16. In view of the legal proposition as mentioned above, I answer the question in affirmative and hold that the Award made in this case is binding upon the parties and the suit, as such, is specifically barred under Section 32 of the Arbitration Act.
17. In the result, this application is allowed, order impugned is set aside and the suit is, therefore, held to be barred under Section 32 of the Arbitration Act and consequently thereof the plaint is rejected. No order as to costs.