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1983 DIGILAW 223 (ALL)

Jupiter Chit Fund Pvt. Ltd. Co. , Kanpur v. Som Nath Handa

1983-03-14

N.N.MITHAL

body1983
ORDER N.N. Mithal, J. - This is a revision directed against the decision of the lower appellate court. It is admitted on both sides that such a revision is maintainable as it had-been filed in that twilight period when such revisions are maintainable. 2. The two courts below have allowed the objection of the respondents in proceedings started under S. 14(2) of the Arbitration Act, 1940 on the ground that there was neither any valid agreement for arbitration between the parties nor there was a valid reference made to the arbitration. 3. In order to appreciate the controversy, it would be better to have a few facts. The petitioner is a chit fund company and the defendants respondents were its members. The defendant No. I purchased the chit in question with a discount of Rs. 1,405/- . He promised to repay Rs. 5,000/- for which some documents were executed between the parties and the respondents Nos. 2 to 4 became guarantors for the payment of money. It is stated that at the time when this money was paid, the defendant had written a letter in favour of the plaintiff petitioner agreeing that all matters of dispute will be referred to arbitration of Shyam Sunder Bhatia and agreed to be bound by his decision. Another letter of the same date was written by all the respondents setting out terms of the arbitration. One of the terms provided that the jurisdiction of the arbitration could be invoked even unilaterally. It is said that after all this had been done, the Managing Director of the plaintiff company orally agreed to the terms mentioned in the letters written by the respondents which resulted in an agreement between the parties to refer disputes, if any, between them to the arbitration of Shri Bhatia. When the payment was not made as agreed, the matter was referred to the arbitration of Shri Bhatia at the instance of the plaintiff company who gave his award after sending notice to the respondents who did not choose to appear before him. After the award had been given, the proceedings were taken by the plaintiff to make the award rule of the Court wherein the respondents filed objections. These objections, as stated above, found favour with the two courts below who have set aside the award after allowing the objections. Aggrieved, the present revision of the plaintiff. 4. After the award had been given, the proceedings were taken by the plaintiff to make the award rule of the Court wherein the respondents filed objections. These objections, as stated above, found favour with the two courts below who have set aside the award after allowing the objections. Aggrieved, the present revision of the plaintiff. 4. Sri Pramod Gaur, learned counsel for the appellant, has urged that the view of the court below that there was no agreement in writing between the parties was incorrect. He submitted that if the terms of the agreement were in writing signed by the respondents the same could be accepted orally by the plaintiff and this should constitute as a valid agreement in writing to refer the dispute to arbitration. 5. An "arbitration agreement" is defined in S. 2(a) of the Arbitration Act as "a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not". The whole controversy rests here on the meaning of the words "written agreement". The language employed in the above definition of a "Written agreement" does not require that in order to be a valid arbitration agreement, the same ought to be in writing and signed by both the parties. All that it implies is that the terms of the agreement should be in writing. The word "agreement" has not been defined in the Arbitration Act and therefore, we have to fall back upon its definition as given in the Contract Act according to which every promise and every set of promises forming consideration of each other constitute an agreement. How a proposal is to be made and accepted is dealt with in S. 4 of the Contract Act which provides : "The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete, as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the accepter: as against the accepter, when it comes to the knowledge of the proposer." 6. Ordinarily an agreement can be made by making a proposal by one party orally and its oral acceptance by the other and this does not necessarily require any writing. Ordinarily an agreement can be made by making a proposal by one party orally and its oral acceptance by the other and this does not necessarily require any writing. However, according to the Arbitration Act a mere oral agreement to refer disputes to arbitration will not do because S. 2(a) itself requires that such an agreement must be in writing. When the respondents wrote letters in favour of the plaintiff, they made certain proposals setting out the conditions on which they were prepared to enter into an agreement for referring their dispute to arbitration. This document is in writing and contains all the terms which formed the basis of the proposal on their behalf. This proposal could be accepted orally and it is not essential that such an acceptance must be made only in writing. The language of Section 2(a) of the Arbitration Act also stops short of imposing any such condition. The very purpose in using the expression "written agreement" appears to be that the parties must be aware of the terms and conditions upon which such an agreement is based. In support of this reference may be usefully made to the following cases : In Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji, AIR 1955 SC 812 , it was observed : "It is a settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established." The very same question had arisen in Shankar Lal Lachhmi Narain v. Jainey Brothers, AIR 1931 All 136 (2) where a Division Bench of this Court elaborately considered this matter and observed as follows : "The terms of a written agreement may be collected from a series of documents and a written agreement does not mean that each party has to sign a document containing the terms. The plain acceptance of a document containing all the terms is sufficient. The plain acceptance of a document containing all the terms is sufficient. All that is required by S. 4 (b) is that both parties accept a written document as containing the agreed terms, it might be in the form of a signed document by both parties containing all the terms or a signed document by a one party containing the terms and a plain acceptance either signed or orally accepted by the other party or in the third case an unsigned document containing the terms of the submission to arbitration agreed to orally by both parties. A written contract does not mean a contract which is proved by documentary evidence but one in which the terms are expressed in writing in the act of making it.". 7. It, therefore, follows that to constitute a written agreement what is required is that the terms constituting the terms of agreement should alone be in writing. The terms may be either signed by both the parties or by one of them or by none of them at all provided it is proved that those terms had been agreed upon by the parties, it will be sufficient. 8. In the present case, the letter signed by the defendant No. 1 and another signed by the remaining defendants contained terms that the dispute between the parties was referable to arbitration. Another letter signed by all the defendants spelt out in greater detail the terms on which the arbitrator was to act. These three documents together with their acceptance orally by the plaintiff would constitute a valid written - agreement to submit either present or future differences to arbitration which could be construed as an arbitration agreement within the meaning of S. 2 (a) of the Act. The courts below have rejected these letters merely on the ground that the same had not been signed by both the parties. Since this is not the requirement of law, the findings recorded by the court below are obviously erroneous and cannot he sustained. 9. The question that next arises is whether these terms which are mentioned in the aforesaid letters had been actually accepted, even though orally, by the plaintiff? It is urged on behalf of the petitioner that the conduct of the plaintiff soon after these letters had been given by the defendants, would clearly indicate that the terms had been accepted. 9. The question that next arises is whether these terms which are mentioned in the aforesaid letters had been actually accepted, even though orally, by the plaintiff? It is urged on behalf of the petitioner that the conduct of the plaintiff soon after these letters had been given by the defendants, would clearly indicate that the terms had been accepted. Because loan was advanced to the defendants soon thereafter, it ought to be presumed that there was an oral acceptance of these terms. The evidence in the case was taken on affidavits and para 3 of the counter-affidavit filed on behalf of the plaintiff which is paper No. 63-B on the record, there is a clear assertion that the Managing Director of the company acting on behalf of the company and in the course of his business had accepted the entire contents of these letters and consented to the arbitration clause contained in these letters to appoint Shri S. S. Bhatia as the sole arbitrator and these also contained the terms of reference. This assertion was denied in para 3 of the rejoinder affidavit of the defendant and reliance was placed on certain decisions in some other cases decided by various courts below. However, in view of the fact that payment of money in pursuance of these letters was made to the defendants clearly proves that the same had been accepted by the plaintiff company. 10. It was next urged that there is nothing on the record to show that the Managing Director of the Company had any authority to accept terms on behalf of the company. A reference in this connection has been made to S. 46 of the Indian Companies Act, 1956, according to which the Managing Director had ample authority to do so. It was also urged that in the Vakalatnama filed by the Managing Director, even the counsel had been given the authority to refer the-dispute to arbitration and, therefore, it must be presumed that the Managing Director himself had this authority otherwise he could not have authorised the lawyer to do so. The second argument, however, does not help the petitioners much. The second argument, however, does not help the petitioners much. May be, on the day when he signed the Vakalatnama, he might have authorised the counsel to enter into the arbitration on behalf of the company, but that does not mean that even on the day when the arbitration agreement was accepted, he had the said authority, However. under S. 46 (b) of the Companies Act, any contract on behalf of the company has to be made by a person acting under its authority, express or implied and any contract made according to this section is binding on the company. Since the agreement of this nature could be made by a private individual by giving oral consent same mode can be employed by the Managing Director of the company also while acting on behalf of the company. The directors of the company are agents and the company acts through such director as its agent and, therefore, even an oral consent given by the Managing Director on behalf of the company shall bind it. Besides these circumstances, the agreement in question was validly made and the same cannot be disputed on that ground. 11. The last point urged is that no unilateral reference to arbitration could be made. Reliance in this connection is placed on the case of Jagannath Kapoor v. Premier Credit and Instalment Corporation, AIR 1973 All 49 . A learned Single Judge of this Court in that case held that "in the very nature of arbitration proceedings where the adjudicator is chosen by common consent of the parties it is but natural that their disputes, differences or claims should also be jointly referred by them for decision of the arbitrator." However, this case is clearly distinguishable as here, in one of the letters signed by all the defendants, they have clearly agreed that the jurisdiction of the arbitrator could be invoked even single handed by the company whenever an amount due under the agreement falls in arrears. When such a power had been expressly given to one of the parties to make a reference unilaterally and the arbitrator had already been named by the parties, there cannot be any doubt that the plaintiff company alone could refer the dispute to arbitration. When such a power had been expressly given to one of the parties to make a reference unilaterally and the arbitrator had already been named by the parties, there cannot be any doubt that the plaintiff company alone could refer the dispute to arbitration. A reference in this connection may be made to a Division Bench decision of Delhi High Court reported in P.C. Agarwal v. K.N. Khosla AIR 1975 Delhi 54. In that case, it was observed : "A separate reference to arbitration is necessary only where there is a bare agreement between parties that disputes between them shall be decided by resort to arbitration. S. 2 (a) is comprehensive enough to cover both a bare arbitration agreement and an agreement that disputes shall be decided by resort to arbitration with a reference of the disputes between the parties to arbitration. It is because the consent of the parties to the reference (as distinguished from a mere agreement to refer disputes to arbitration) can be given in advance in a written agreement or submission or a written comprehensive arbitration agreement in advance before the arising of the future disputes that the nature of reference has become consensual in the law of arbitration. The consent of the parties can be given in advance in referring future disputes to arbitration, and it can be acted upon when the disputes actually arise. The previous consent of the parties to the reference of the disputes to arbitration binds them throughout and no fresh consent is necessary after the disputes have arisen. Therefore, when both the parties have consented that the reference to arbitration should be made in a particular manner and have given their consent in advance, the actual reference to arbitration has to be regarded as a bilateral reference. Such a reference cannot, be said to be unilateral. A truly unilateral reference would arise when the agreement between the parties is restricted to the simple fact that disputes between the parties would be decided by arbitration but the agreement does not include the reference of disputes to arbitration.". 12. In view of the above, I have no hesitation in holding that in the circumstances of the present case, even unilateral reference of the dispute to the arbitrator by the company was valid and could not be set aside on this ground. 13. 12. In view of the above, I have no hesitation in holding that in the circumstances of the present case, even unilateral reference of the dispute to the arbitrator by the company was valid and could not be set aside on this ground. 13. In the result, the revision is accepted, and the decisions of the two courts below are set aside. The plaintiffs application for making the award rule of the court is allowed with costs throughout.