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1987 DIGILAW 121 (ORI)

STATE OF ORISSA v. GOKULANANDA JENA

1987-03-31

S.C.MOHAPATRA

body1987
JUDGMENT S.C. Mohapatra, J. - This is an appeal under S. 39 of the Arbitration Act, 1940 (for short 'the Act'). The claimant made a contract on 8-2-1972 for construction of Arikul Minor Irrigation Project. Dispute having arose, the claimant approached the Court for reference under S. 20 of the Act to the Arbitrator to be appointed by the Court and accordingly reference was made. As per the direction of the Court, the award was filed on 16-11-1982 and Original Suit No. 325 of 1982 was registered. Notice was given to both the parties. The appellants filed their objection to the award which was registered as Misc. Case No. 127 of 1983 (A). The claimant respondent filed counter to the application objecting to the award. Objections of the appellants to the award are mainly as follows : (1) Reference was illegal and invalid; (2) Claim was outside the purview of the agreement; (3) Claim in respect of additional excess work was covered under Cl. (11) of the agreement; (4) Arbitrator has misconducted himself in not taking into consideration the evidence placed before him; (5) Award of interest is without jurisdiction; and (6) There is error of law on the fact of the award. The award is a non-speaking award. Law is well settled that the Court cannot determine the error of law in respect of a non-speaking award since the same would not be apparent on the face of the record. The other objections being parts of the objection that there is error of law apparent on the face of the award, the trial court rightly rejected the same. There is no scope for interference in this appeal. In course of perusal of the record, I find that the procedure has not been followed in this case by the Court. Under the scheme of the Arbitration Act in Chap. II Arbitration is made without intervention of the Court. Under Chap. III, Arbitration is made with intervention of the Court where there is no suit pending and under Chap. IV, Arbitration is made in suits. Where an award is made by an Arbitrator without the intervention of the Court, the Arbitrator after making of the award gives notice to the parties of the making of the same as required under S. 14(1) of the Act. Any of the parties may request the Arbitrator to file the award. IV, Arbitration is made in suits. Where an award is made by an Arbitrator without the intervention of the Court, the Arbitrator after making of the award gives notice to the parties of the making of the same as required under S. 14(1) of the Act. Any of the parties may request the Arbitrator to file the award. The Arbitrator thereupon causes the award together with the records to be filed in Court. A party may make an application to the court also under S. 14(2) of the Act to direct the Arbitrator to cause filing of the award. The application under S. 14(2) of the Act is registered as a suit. Under Art. 18 of Sch. II of the Court-fees Act, court-fee on such application has been prescribed. Limitation for filing such an application is also provided under Art. 119-A of the Limitation Act. The application under S. 14(2) of the Act is registered as a suit as provided under R. 2(c) made under the Act. When arbitration is made with the intervention of the Court, an application is filed under S. 20 of the Act for filing of the agreement. Such an application is also registered as a suit as provided under R. 2(c) made under the Act. Article 18 of Schedule II of the Court-fees Act also provides for the same court-fee as in case of an application under S. 14(2) of the Act. An application may be made in the suit under S. 21 of the Act for arbitration in the suit. The court-fee payable and the limitation for the suit in which application is made under S. 21 are provided for in those statutes. In both the arbitrations with intervention of the court and in suits, reference is made to the Arbitrator in Form (J) 47 wherein time is fixed for the Arbitrator to make the award. The time fixed in Form (J) 47 can be extended by the Court under S. 28 of the Act. When reference is made to the Arbitrator either under Section 20 which is registered as a suit or under Section 23 on an application under Section 21 in the suit, the suits are to be kept pending till the award is received as per direction of the Court. When the award is received the court is to give notice to the parties that the award has been so received. When the award is received the court is to give notice to the parties that the award has been so received. Whether it is a suit as registered under S. 14(2) of the Act, or under S. 21 of the Act, or a regular suit in which arbitration is made, in which notice is given, the party can file the objection to the award within 30 days of the receipt of the notice from the Court. This application objection to the award is to be registered as a Miscellaneous case. Section 17 provides that on disposal of the objection, the court is to pronounce the judgment according to the award and upon the judgment so pronounced a decree shall follow. In this case, as directed by the Court, the award with the documents was filed by the Arbitrator. A separate suit ought not to have been registered. The award should have been dealt within the suit registered on the application under S. 20 of the Act. The application would have been disposed of and thereafter the judgment would have been pronounced However, the procedure followed in this case has not prejudiced the appellants in any manner. In the result, there is no merit in this appeal which is accordingly dismissed; but without any order as to costs. Appeal dismissed.