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Amar Chand Chamaria vs Banwari Lall Rakshit And Ors. on 24 November, 1921 cites

Manilal Motilal vs Gokaldas Rowji on 20 July, 1920

8. On this I observe that Mr. Justice Fawcett in the case already cited says: Manilal Motilal v. Gopaldas Rowji 59 Ind. Cas. 685 45 B. 245 : 22 Bom. L.R. 1048. "No doubt the words 'other law for the time being in force are inappropriate for covering a provision of the Code itself, such as Order XXIII, Rule 3. But the Legislature in enacting Section 89 probably had not that particular rule...in their mind, and had no intention of affecting it one way or the other."
Bombay High Court Cites 13 - Cited by 17 - Full Document

Ghulam Khan vs Muhammad Hassan on 3 December, 1901

Apart altogether from the terms of Section 89 of the Civil Procedure Code, with regard to which the Appeal Courts in the Bombay case seems to have felt great difficulty, it is, I think, impossible to look at the scheme of the Code for dealing with arbitrations in the course of suits without seeing that the Legislature intended to make sure that, as said by the Privy Council in a case Ghulam Khan v. Muhammad Hassan 29 C.167 at p. 182 : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.J. 77 : 4 Bom.L.R, 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1902 (P.C.)1 frequently referred to on this subject, "where parties to a litigation desire to refer to arbitration any matter in difference between them in a suit, in that case all proceedings from first to last are under the supervision of the Court." It is quite true this was said of what is now the Second Schedule. But it is difficult to see what point there is in the Second Schedule saying or meaning that arbitration mast be done in a particular way if, according to some other law or principle, it may still be done in another way. In any Base the logical gap, if there be any, is stopped up by Section 89. Without adverting any further to the terms of Section 89, I desire to point out that if a submission to arbitration of matters in difference in a suit is to take plate, there is no provision for it other than the provisions in the Second Schedule. All parties interested must consent, and their consent must be evidenced in a certain way. The Court from She first is to limit the time within which the award is to be made, and it has certain powers of interference after the award is made. It may in certain cases correct an award, or set aside an award. It may set aside the proceedings before award in certain cases and recall the matter into Court. It may also remit the matter to the arbitrators in certain cases. That is the scheme of the Code applicable to cases where parties to a suit desire arbitration. It is now-said that by virtue of Order XXIII, Rule 3, which does not specially deal with arbitrations or awards at all, it is open to the parties to put aside all these careful provisions and to have an award behind the back of the Court and without the order of the Court. There may always be questions for litigation as to the validity of an award. Under Order XXIII. Rule 3, everything is at large at Common Law. There is no power on the part of the Court to prevent submission as between tome partie where all the parties interested are not agreed. There is no power to prevent or control delay; no power to remit such an award; no power to correct such an award. The only issue to be tried is, is it a valid award? If valid, decree must follow; if not, the whole thing comes to an end and the suit mast proceed. That never was the intension of the Civil Procedure Code; and indeed it ruins the whole scheme. I do not rely merely on the words of Section 89. It seems to me if the Code is looked into as a scheme for dealing with a difficult and highly important matter, viz,, arbitrations in the course of litigation--it intends these to be under the strict conditions and stipulations of the Second Schedule and under the supervision of the Court. The Indian Arbitration Act does not apply to arbitrations in the course of litigation. There are decisions of this Court in which arbitrators, acting under the Indian Arbitration Act without leave from the Court after the matter has been put in suit, have been held to be doing that which is wrong and outside their power. Apart from this general principle, which may be quite inapplicable and as a matter of interpretation of the Code, I cannot agree that a submission, neither under the Second Schedule nor under the Indian Arbitration Act, may be enforced in the suit under the general law of contract. Even if an award comes fairly within the notion of "adjustment by consent," it is a very special kind of adjustment by consent, and, if Section 89 requires this specks to comply with the Second Schedule, the general language of Order XXIII, Rule 3, is out down thereby as regards that species. Informal and uncontrolled arbitrations between parties to a suit, leading up to litigation upon the bare issue as to whether there in fast a valid adjustment, are the very things from which the Second Schedule was meant to deliver litigants. The contention of the applicant here is not one to which any Court can lightly commit itself, knowing, as every Court ought to infer, that the careful provisions of the Code in the Second Schedule are no mare than was thought absolutely necessary for the protection of ignorant litigants in many of the Courts in India. My opinion is, although there was prior to 1908 some authority in Bombay to the contrary, that under the Code, arbitration in suits is a specific subject matter, and that where the Code means to deal with arbitrations and.
Calcutta High Court Cites 5 - Cited by 74 - Full Document
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