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1980 DIGILAW 163 (KER)

PHILIP v. MATHAI

1980-07-24

V.KHALID

body1980
Judgment :- 1. The petitioner in Arbitration O.P. No 15 of 1973 on the file of the Sub Court, Ernakulam, is the revision petitioner before me. Respondents 1 and 2 filed Arbitration O.P.No, 6 of 1970 in the Sub Court, Ernakulam, for a decree in terms of the award made by them as Arbitrators appointed by the petitioner and the 3rd respondent. The petitioner's case was that he had not joined the Arbitration Agreement appointing respondents 1 and 2 as Arbitrators. The petitioner received notice from Court regarding the filing of the award by respondents I and 2. He filed objections contending that he had not executed any arbitration agreement and that respondents 1 and 2 had not conducted any arbitration proceedings and praying that the award be set aside. The Court refused to consider the objection on the ground that it was not submitted within 30 days of receipt of the notice of filing of the award in court and passed a decree in terms of the award. He filed an appeal before this Court and this Court in A S. No. 61 of 1974 confirmed the decree passed by the trial court in O.P. No. 6 of 1970, It was thereafter that he filed O.P. No 15 of 1973 under S 33 of the Indian Arbitration Act, for short the Act, for a declaration that he and the 3rd respondent in this CRP. had not executed any arbitration agreement appointing respondents I and 2 as Arbitrators. The Court below dismissed the application holding that a decree had already been passed in terms of the award and as such the application was not maintainable, 2. S.30 of the Act enumerates the grounds on which an Award could be set aside S.33 of the Act enables a party to challenge the existence or validity of an agreement and the consequent award. The limitation prescribed for such an application is 30 days from the receipt of notice of the filing of the award in Court, under Art.158 of the Limitation Act (old), corresponding to Art.119(b) of the new Act. According to the petitioner, what he seeks is not to set aside the award under the grounds enumerated in S.30 of the Act, but a declaration that the agreement does not exist and consequently that the award is a nullity. According to the petitioner, what he seeks is not to set aside the award under the grounds enumerated in S.30 of the Act, but a declaration that the agreement does not exist and consequently that the award is a nullity. According to him, the case is not governed by Art.119 but is governed by the residuary Art.137, which provides for a period of three years. The respondents on the other hand contend that the petition from which this appeal arises is barred by the decision of this Court in A.S. No. 61 of 1974 and that in any case the application under S.33 is not maintainable when a decree in terms of the award has been passed 3. There is divergence of opinion among various High Courts as to whether an application to set aside an award is to be made under S.30 or under S.33 of the Act. Some Courts hold the view that an application can be filed only under S.33 and that S 30 enumerates only the grounds on which an award can be attacked. Some other Courts are of the view that S 30 also enables a party to file an application. I shall refer to some of the decisions cited at the bar. 4. In United India Fire and General Insurance Company Ltd. v. Bhagat Singh (AIR. 1954 Punjab 171), the aggrieved party had filed an application under S.30 as also an application under S 33. The application under S.30 was for setting aside the award while the one under S.33 was challenging the validity of the arbitration agreement. The application under S.30 was held to be barred by time and the application under S.33 was dismissed on the ground that only one application lay. The High Court, however, held that despite the dismissal of the application under S.30 on the ground that the said application was barred by time, it was incumbent on the Courts to pronounce upon the application under S.33 and to decide whether the arbitration agreement and the consequent award given in pursuance of that agreement existed or was valid. The learned Chief Justice who rendered the judgment impliedly accepted the case that separate applications could be filed both under S 30 and S.33, and also that the period of limitation of 30 days for an application under S.30 was not applicable to an application under S.33. 5. The learned Chief Justice who rendered the judgment impliedly accepted the case that separate applications could be filed both under S 30 and S.33, and also that the period of limitation of 30 days for an application under S.30 was not applicable to an application under S.33. 5. In A R. Savkur v Amritlal Kalidas (AIR. 1954 Bombay 293), a Division Bench of the Bombay High Court held that all applications to set aside an "award" have to be filed under S.33 and not under S.30 and to the only application so contemplated, Art.158 of the Limitation Act applied. The finding here therefore is that even for an application challenging the existence of the agreement the limitation would be 30 days as prescribed in Art.158 of the Limitation Act. 6. In Saha & Co. v. Ishar Singh (AIR. 1956 Calcutta 321), a Full Bench of five judges had occasion to consider the question whether the Indian Arbitration Act, 1940, distinguishes between an application for setting aside an award and an application for adjudgment of the award as nullity, and does it contemplate an application to be made under S.30 and an application under S 33. The majority judgment gave the answer in the negative falling in line with the Bombay High Court. The question of limitation did not fall for consideration before the Full Bench. 7. In Basant Lal v. Surendra Prayed (AIR. 1957 Patna 417), the Patna High Court strikes a discordant note. In Para.36 it is stated that all applications contemplated under the Act are to be made under S.33. But in Para.45 of the same judgment, it is observed that an application under S.33 of the Act on the ground of non-existence of the arbitration Agreement can be made even after judgment and decree are passed ex parte behind the back of the party wronged, under S.17 of the Act, for the simple reason that such judgment and decree are void from the beginning to the end and are not binding on him. This judgment by a Division Bench while affirming the view that the only application contemplated under the Act is the one under S.33 goes further and says that an application under S.33 challenging the very existence of the agreement which is the foundation I of all other proceedings can be made even after the award is passed into a decree by a competent Court. This decision is a departure from the principle laid down by the other High Courts. It might be possible to salvage the principle laid down here, if we closely scrutinise the facts of that case There, not only was the existence of the agreement challenged but even the decree passed in terms of the award was also challenged as a nullity, it having been passed behind the back of the aggrieved party and without notice. 8. In Prem Sagar v. Security and Finance Ltd. (AIR 1968 Delhi 21), a Full Bench of the Delhi High Court held that an application under S.33 challenging the validity of an award on the ground of non-existence of an arbitration agreement is not governed by S.119(b) of the Limitation Act. This judgment accepts the plea that the Act contemplates two applications but holds that though the period of limitation for an application under S.30 is 30 days from the receipt of notice of the filing of the award, the period of limitation for challenging the factual existence of the agreement would not have run out, with the result that the aggrieved party may still make an application under S.33. 9. In Ved Parkash v. Ram Narain (AIR. 1977 Delhi 47) a learned single judge of the Delhi High Court held that when an award is made a rule of Court by consent of parties or after contest, an application thereafter under S.33 is not maintainable. In Vinest Kumar v. Bhagwandas (AIR. 1977 Allahabad 403), it was held that when an award is made the Rule of Court and a decree is passed thereunder under S.17 of the Act, an application under S.33 thereafter to set aside the award would not lie. It was also held that a suit to set aside the decree under the award could be filed on the ground of fraud. 10. We are not very much concerned with the divergence of opinion as to whether an application could be filed under S.30 or that all applications should be under S.33 only. We are here concerned only with the question whether an application under S.33 to set aside an award as a nullity on the ground of the non-existence of the agreement could be filed after a decree has been passed in terms of the award. We are here concerned only with the question whether an application under S.33 to set aside an award as a nullity on the ground of the non-existence of the agreement could be filed after a decree has been passed in terms of the award. Regarding the question of limitation for an application under S.33, I am inclined to agree with the view that Art.119 (b) does not apply to such an application. But that will not help the petitioner, for, according to me such an application has to be made before the award is made a rule of court. I agree with respect, with the preponderant view expressed by various High Courts that an application under S.33 cannot be entertained to challenge an award which has already been made into a rule of Court With great respect, I find it difficult to agree with the view expressed by the Patna High Court in Basant Lal v. Surendra Prayed (AIR 1957 Patna 417), if the said decision held the view that an application under S.33 to set aside an award for want of existence of an agreement could be filed even after a decree is passed in terms of the award. In this case, the OP. is also barred by the judgment of this Court in AS. No. 61 of 1974. In the result, the CRP. fails and is dismissed with costs.