(2001) 1 J & K Law
Reporter 306 at Jammu Before Hon’ble Mr. Justice Arun Kumar Goel, Judge Amson Trading Petitioner AA No. 125 / 1992, decided on 27.9.2000. J&K Arbitration Act, S.33 - Award made Rule of the Court - Validity of award - Challenged by the objector of the award. Speaking award - No stipulation that award should be speaking award - Held : Free from infirmity. No ground is made calling for interference by this court under Section 33 of the J&K Arbitration Act so far it relates to the award in question. There was no requirement either in agreement or the order appointing arbitrator calling upon him to give a speaking and reasoned award. A perusal of the record of arbitrator as well as the impugned award clearly suggests that it sufferes from no infirmity as per provisions of Section 33 of J&K Arbitration Act. Award passsed is in accordance with law as well as on proper consideration of material before the Arbitrator who it may be submitted was the sole judge of quality and quantity of evidence. Similarly what was thee process of reasoning that weighed with him is not a matter to be seen by the court under Section 33 (supra) of the Act . Arbitrator is both master of law and facts as also of quality and quantity of evidence. Last but not the least, this Court does not sit as a Court of Appeal. Because this court is likely to take another view on re-appraisal of the evidence, will not be a ground to interfere with the impugned award. Arbitrator is a person appointed by the parties by consent to adjudicate the disputes between them. Unless the award given by such a person i.e. arbitrator falls within the ambit of Section 33 for the purpose of present case, this court would not interfere with the same. [Para 11] Advocates who appeared in this case : JUDGMENT AND ORDER An agreement was entered into between the parties whereunder respondent had appointed the petitioner as sole agent and distributor for Kashmir Division & Ladakh for selling its products i.e., of respondent. For said purpose a sum of Rs.24,000/- was admittedly deposited by the petitioner with the respondent in terms of the agreement dated 12.4.1984. Since supplies were not made as per agreement, therefore petitioner approached this court for appointment of an arbitrator as well as for adjudicating the disputes between the parties. Order appointing arbitrator was passed by this court on 14.11.1991, whereby Shri Justice J. N. Bhat (Retd.) was appointed as sole arbitrator, who after entering upon reference in terms of the said order of the court proceeded with the matter and finally made and published his award in 31 st May,1992. It was filed in court when it was directed that notice be issued to the parties regarding its filing on 29.6.1992. Shri Kotwal accepted notice on behalf of petitioner and stated he has no objection for making the award rule of the court. Case was pending for service of the respondent. Because of non-appearance of respondent, vide judgment dated 7.4.1995 award was ordered to be made rule of the court and the decree was ordered to be drawn accordingly.Respondent filed LPA( C ) No.34/97 against the aforesaid judgment and decree of the learned single judge. Division Bench on 26 th February ’99 set aside the said judgment and decree of learned single judge and ordered that the matter be re-posted before the learned single judge. 15th March’99 was the date given for the said purpose.Respondent thereafter preferred objections on 23.4.99 under sections 30 & 33 of the J&K Arbitration Act. Reply to these objections was filed by the petitioner. It was followed with the rejoinder on behalf of the petitioner. Matter came up before the court on 14.10.1999 when following order was passed. st May ’92 was received in the registry of this court on 15th June ’92. After it was received notice was ordered to be issued to the parties. Finally vide judgment dated 7th April ’95 this award was made rule of the court. Objector feeling aggrieved by and satistied with the said judgment of court preferred an appeal being LPAC No: 34/97. This was decided on 26 th February ’99. Division Bench allowed the said appeal and ordered the case to be re-posted before single judge, date fixed for appearance was 15th March ’99. It is in this backgrond that case came up for consideration before this court.When this case was taken up today in court, question arose that as to whether objections are within time or not. In fact it is for the registry, particularly those entrusted with the scrutiny work to have reported whether the objections are within time or not. This was only possible when date of service of notice is given in the objection petition by the objection. Admittedly no such date is mentioned. When this case was taken up learned counsel for the parties appearing stated that dated 26.2.1999, i.e. when order was passed by the LPA Bench, would be the starting point when notice is deemed to have been served upon the parties. Thus objections had to be filed within 30 days from this date. Admittedly objections in this case have been presented on behalf of objector on 23.4.1999 i.e. beyond the period of limitation prescribed under Article 158 of the J&K Limitation Act. Learned counsel appearing for respondents when confronted with this factual position stated that these objections have been filed under Sections 30 & 33 of the Arbitration Act (supra). He made a further prayer that if court feels the objections are barred under section 158 of the Limitation Act, he will take further steps. He submitted that for objections under Section 33 no limitation is prescribed and scope of such objections is much wider because such objections embrace Section 30 also. For the proposition there is no limitation prescribed under Section 33. Reliance is placed on AIR 1967 J&K 120, "M-I-Shahdad Vs. Mohd. Abdullah Mir & others." In the face of admitted factual position as narrated hereinabove that date when objections were filed under Section 30 of the J&K Arbitration Act those were barred by time. No application has been filed for condoning the delay. Such an application was required to be filed alongwith objections. Time is prayed for filing such an application on behalf of objector as a matter of course. In fact objections have been filed by the objector without caring for limitation in the peculiar facts of this case. Even thereafter no steps have been taken till today. This clearly shows lack of bonafides and diligence on the part of objector. Therefore prayer for allowing time to the objector to file application for condoning the delay in filing objections under Section 30 of J&K Arbitration Act is hereby declined. It is clarified that objections of the objector in this case are only under Section 33 of the Arbitration Act and would be examined with reference to this provision of law alone. Shri Kotwal submitted that he has filed reply to the objections, which are not on record. Registry is directed to place those on record if they are otherwise in order. Copy of reply will be supplied by Mr.Kotwal to the learned counsel for the objector, who will file rejoinder to it. Case be listed for framing of issues on 2 nd December, 1999."In view of the aforesaid order dispute between the parties is to be decided on the touch stone of Section 33 of the Arbitration Act. As per Section 33 of J&K Arbitration Act. Respondent is entitled to challenge the existence or validity of an arbitration agreement or award or to have the effect determined by applying to court and such a question shall be decided on affidavits. Following issue was framed by this court on 2.12.1999 :
Parties have led evident on Issue No.1. Respondents have filed affidavits of Pawanjit Singh, his father Amarjit Singh and of his employees Hans Raj & Kashmir Chand, whereas Hazi Gh.Mohd. has filed the affidavit on behalf of the petitioner. Besides that of Om parkash. A perusal of the objections under Section 33 and the affidavits filed on behalf of the respondents shows that under what circumstances it (respondent) was not in a position to fulfil the terms of the agreement have been explained. As per version of the respondent it used to bottle the Cola at Jammu and for that purpose was getting emply bottles from outside the State. In the end of year 1984 two trucks of empty bottles were on their way to Jammu when as an aftermath of the assassination of the then Prime Minister, Late Smt. Indira Gandhi both these trucks were destroyed near Ambala. This resulted in supply line being not maintained. Respondent further claimed that at the instance of petitioner, who wanted word ‘Cola’ to be mentioned in Urdu on the bottles, steps were initiated and expense was incurred in this exercise. When the stuff was ready, petitioner was informed to intimate mode of delivery but despite service nothing was done to take of the supply. Thus there was failure on the part of petitioner. While assailing the award of arbitrator, it is pleaded that the arbitrator has mis-conducted himself and the proceedings and notice was issued in a newspaper Taskeen, which does not have wide circulation nor anybody reads it. Thus the award was liable to be set aside. It may also be observed here that from the record of arbitration file it is clear that respondent-objector was duly served during the course of proceedings. It had put in appearance before the arbitrator, had filed reply under the signatures of its learned counsel Shri D.S.Chouhan, Advocate. Amarjeet Singh, father of Pawanjeet Singh had been appearing before the arbitrator till 22.3.1992, when case was listed for 5.4.1992. They absented from 5.4.1992 onwards and thereafter award was passed by the arbitrator in the absence of petitioner on 31 st May’92.From the affidavits filed by way of evidence on behalf of the respondent, what emerges is that it explained the circumstances whereunder supply in terms of the agreement of the year 1984 could not be made. Thereafter steps having been taken is supported from the affidavit of employees of the respondent. This evidence has been rebutted by the petitioner. So far expense, execution of the agreement dated 12.4.1984 is concerned, it is not in dispute. Because of non performance on the part of respondent disputes arose between the parties which were referable to the arbitrator. He was appointed by the court. In this view of the matter as well as the fact that agreement has not been challenged, no relief is admissible to the petitioner so far it concerns the same. Now the challenge to agreement under Section 33 of the Arbitration Act needs to be examined. Respondent did appear before the arbitrator, submitted its reply, thereafter continued to appear as noted hereinabove. It absented for the first time on 5.4.1992 for reasons best known to it. In these circumstances plea on its behalf that award has been passed in its absence does not hold good. In no case respondent could be permitted to play hide and seek before the arbitrator. Thus no exception can be taken to the passing of the award. Once the respondent had appeared and preferrred its reply etc. before the arbitrator, it was its duty to ensure that it is duly represented during such proceedings, once this decision is arrived at, no exception can be taken to the exparte award passed by the arbitrator. A further perusal of the impugned award suggests that after recording evidence and then examining the entire record before him, arbitrator has passed and published the same. No ground is made out calling for interference by this court under Section 33 of the J&K Arbitration Act so far it relates to the award in queston. There was no requirement either in agreement or the order appointing arbitrator calling upon him to give a speaking and reasoned award. A perusal of the record of arbitrator as well as the impugned award clearly suggests that it suffers from no infirmity as per provisions of Section 33 of J&K Arbitration Act. Award passed is in accordance with law as well as on proper consideration of material before the arbitrator, who it may be submitted was the sole judge of quality and quantity of evidence. Similarly what was the process of reasoning that weighed with him is not a matter to be seen by the court under Section 33 (Supra) of the Act. Arbitrator is both master of law and facts as also of quality and quantity of evidence. Last but not the least, this court does not sit as a court of appeal. Because this court is likely to take another view on reappraisal of the evidence, will not be a ground to interfere with the impugned award. Arbitrator is a person appointed by the parties by consent to adjudicate the disputes between them. Unless the award given by such a person i.e. arbitrator falls within the ambit of Section 33 for the purpose of present case, this court would not interfere with the same. At the risk of repetition it may be worthwhile to point out hat the award passed against the respondent and in favour of petitioner by the arbitrator suffers from no infirmity. That being so findings on issue No.1 are required to be recorded against the respondent and in favour of petitioner and it is ordered accordingly. As a further consequence of it objections under Section 33 of the J&K Arbitration Act suffers from no infirmity so as to be interfered with . Accordingly those are dismissed and thus under Issue No.2 award of the Arbitrator is ordered to be made rule of the court. Decree sheet be drawn accordingly. |
