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1986 DIGILAW 233 (KER)

MUNICIPALITY OF QUILON v. VISWAMBHARAN

1986-07-12

PAREED PILLAY

body1986
Judgment :- 1. Revision petitioners are the defendants in OS. (Arbitration) 160/85 of the Add!. Sub Court, Quilon. The respondent (plaintiff) filed I. A. 724/86 for deputing a commissioner to ascertain the extent of the work done, to make measurements of the work done and to prepare an inventory of the materials belonging to him and kept at the work site. The learned Sub Judge allowed the petition. Aggrieved by the same, the above CRP. has been filed by the defendants. 2. The question to be considered is as to whether a court exercising powers under S.20 of the Arbitration Act, 1940 has power to allow a commission application before arbitration proceedings have started. Revision petitioners contend that S.41 (a) of the Arbitration Act relates only to procedures to be followed by the court and that the applications for appointment of receiver and for the grant of injunction and commission are dealt with under S.41(b) of the Act which can be exercised only when the matter is pending before the Arbitrator and not before the arbitration proceedings have started. Admittedly, arbitrator has not been appointed in this case. Commission application has been filed by the respondent at a stage when the court has not decided whether arbitrator should be appointed or not. 3. S.41 of the Arbitration Act deals with the procedure and powers of the court. Admittedly, arbitrator has not been appointed in this case. Commission application has been filed by the respondent at a stage when the court has not decided whether arbitrator should be appointed or not. 3. S.41 of the Arbitration Act deals with the procedure and powers of the court. S.41 reads: "Subject to the provisions of this Act, and of rules made thereunder (a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court, and to all appeals, under this Act and (b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same powers of making orders in respect of any of the matter set out in the Second Schedule as it has for the purpose of, and in relation to any proceedings before the Court." Clause 3 of the 2nd Schedule of the Act reads: "The detention, preservation or inspection of any property or thing which is the subject of reference or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon or into any land or building in the possession of any party to the reference, or authorising any samples to be taken or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence." 4. S.41 (a) provides that the provisions of the CPC. shall apply to all proceedings before the Court, and to all appeals under the Arbitration Act. Thus it can be seen that S.41 (a) relates only to procedures to be followed by the court The contention of the petitioners is that the court can appoint a commissioner only in arbitration proceedings ie., in the proceedings at a stage after the arbitrator has been appointed and not before that. 5. Counsel for the respondent relied on 1983 KLT 266 (Gokuldas v. Union of India) (AIR 1983 Ker. 169) wherein it is held that in a proceeding under S.20 which is a proceeding under the Act the Court will have the power to grant injunction, if a prima facie case is made out and other conditions for the grant of injunction are satisfied. On an analogy it is contended that the court below validly exercised its power in granting the commission application. On an analogy it is contended that the court below validly exercised its power in granting the commission application. Counsel for the petitioner relied on AIR 1978 Ker, 223 (Baby Paul v. Hindustan Paper Corporation) wherein it has been held that "arbitration proceedings" do not commence from the stage of arbitration agreement and that S.41(b) cannot be invoked from that stage. In the AIR. 1978 Ker. 223 case, the contractor moved for interim injunction restraining the respondent from altering or modifying the work he had already done. That was dismissed by the lower court and this court held that any orders contemplated by S.41(b) read with Clause.1 to 3 in the Second Schedule can be made only when there has been a reference of the dispute for arbitration. The Supreme Court had occasion to consider the exact scope and ambit of S.41 of the Arbitration Act. In AIR. 1984 SC. 29 (Mis. M. M. K. Ansari & Co. v. Union of India) it is held as follows: "Under S.41(b) the court has been given power to issue interim injunction. But the court has got the power to pass an order of injunction only'for the purpose of and in relation to arbitration proceedings' before the court. It cannot be said that as Clause (a) of S.41 empowers the court to pass interim injunction even if the conditions of Clause (b) of S.41 were not satisfied. Such construction will render Clause (b) of S.41 otiose." The above decision settles the controversy in issue. In view of the Supreme Court decision the respondent cannot get any assistance from the decision in 1983 KLT. 266 (AIR. 1983 Kerala 169). 6. There cannot be any doubt that S.41 (a) of the Arbitration Act makes only the procedural rules of the CPC. to the proceedings in the court under the Arbitration Act. S.41(b) postulates that the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same powers of making orders in respect of any of the matter set out in the Second Schedule as it has for the purpose of, and in relation to any proceedings before the Court. Second Schedule of the Arbitration Act empowers the Court to depute a commissioner for inspection of any property or thing which is the subject of reference. Second Schedule of the Arbitration Act empowers the Court to depute a commissioner for inspection of any property or thing which is the subject of reference. If under S.41 (a) the court has the power of granting commission application there is no necessity to make specific provision under S.41(b) of the Act. In AIR. 1984 SC. 29 at 31 (para 18), the Supreme Court held that Clause (a) of S.41 makes only the procedural rules of the CPC. applicable to the proceedings in Court under the Arbitration Act. Obviously therefore S.41 (a) of the Arbitration Act does not enable the court to pass an order of injunction. Same is the position with regard to a commission application as the power for issuing a commission cannot be traced to S.41 (a) of the Act. In AIR. 1978 Ker. 223 it is held as follows: "The expression "for the purpose of" in S.41 (b) is of no assistance to contend that the court can make orders in respect of any of the matters set out in Clause.1 to 4 in the Second Schedule to the Act before and in anticipation of a reference to arbitration." I am in respectful agreement with the above decision. 7. Thus, the position is that in a case where a court exercises powers under S.20 of the Arbitration Act, it gets power to allow commission application only after a reference to arbitration and not before. The order of the court below in allowing the commission application at a stage prior to the commencement of the arbitration proceedings is not sustainable. Power under S.41(b) can be invoked only at a stage when arbitration proceedings have commenced and not at a stage prior to it. In the result, the order of the court below is set aside and the commission application is rejected. CRP. is allowed with no order as to costs. After pronouncing the order, learned counsel for the respondent submitted that this court may issue a direction to the court below to dispose of the S.20 application as expeditiously as possible. The court below is directed to dispose of the same with utmost expedition.