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Showing contexts for: when does arbitrator enter reference in Mangal Prasad vs Lachhman Prasad on 22 May, 1963Matching Fragments
1. The following question has been referred to this Bench by our brothers Jagdish Sahai and Mithan Lal:-
"Whether an application under Section 20 of the Indian Arbitration Act can be made in a case like the present one where the arbitrator had started to function and had entered upon the reference but at a later stage could not proceed with the same?"
A conflict among decisions dealing with this question necessitated this reference to a Full Bench". The parties to this appeal are brothers and had disputes regarding partition of joint property. On 9-12-1955 they entered into an agreement to refer the question of partition of all their joint property to the sole arbitration of Sri Baij Nath Prasad. No time was fixed for his making an award and, therefore, under Section 3 of the Arbitration Act (which will henceforth be referred to as the Act) Clause 3 of the 1st Schedule attached to the Act applied and the arbitrator had to make his award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court might allow. The agreement was filed with the arbitrator and he entered upon and proceeded with the reference, but the appellant non-co-operated and the arbitrator thought that, he could not make an award.
4. An application under Section 20(1) has to be for the agreement being filed in Court and the cause of action for making it accrues when a difference to which the agreement applies has arisen. On the agreement being filed the Court has to order the difference to be referred to the arbitrator. These provisions show that an application under Section 20(1) has to be made before the arbitrator has entered upon the reference. If ha has already entered upon the reference there would be no necessity of the Court's ordering the difference to be referred to him; nothing more would be achieved by the simple fact that the Court has ordered the difference to be referred to him. What he can do after such an order can be done by him even without such an order. Such an order would be necessary only if he has not entered upon the reference. If he has already entered upon the reference but neglects or refuses to proceed further or fails to use all reasonable dispatch in proceeding with the reference be can be removed under Section 8(1) or under Section 11(1). I do not think that the words "instead of proceeding under Chapter II" necessarily indicate that the arbitrator has not entered upon the reference.
There are some proceedings in Chapter II which apply even after the arbitrator has entered upon the reference, for instance those under Section 8(2), Section 11(1) and (2) and Section 12(1). The words in italics themselves suggest that Section 20(1) contemplates a case in which a proceeding can be taken under Chapter II, and do not support the contention that Chapter II applies when the arbitrator has entered upon the reference and Chapter III, when he has not.
5. When the arbitrator has entered upon the reference the agreement must have been filed with him. A notice of the application under Section 20(1), which is to be registered as a suit between the parties is to be given only to the parties and the arbitrator has not to figure as a party to it. It is not understood how the agreement can be ordered to be filed when it is with him and he is not under the Court's jurisdiction. The provision pre-supposes that the agreement is with one party or the other who can bo ordered by the Court to file it. This would be the position when the arbitrator has not entered upon the reference.
"Whether an application under Section 20 of the Indian Arbitration Act can be made in a case like the present one where the arbitrator had started to function and had entered upon the reference but at a later stage could not proceed with the same?"
16. On behalf of the appellant, it was argued before us that once an arbitrator enters upon the reference an application under Section 20 of the Act is not maintainable. On the other hand, on behalf of the respondent, it was argued before us that an application under Section 20 of the Act would be maintainable even after the arbitrator had entered upon the reference, if for some reason or the other the arbitration proceedings come to a stand-still at a subsequent stage.