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1990 DIGILAW 249 (MP)

BHARAT HEAVY ELECTRICALS LTD. v. SHELLEY PRODUCTS

1990-07-09

B.M.LAL

body1990
JUDGMENT B. M. Lal, J. - The decision of this revision shall also govern disposal of Civil Revision No. 260 of 1989 and Civil Revision No. 261 of 1989 between the same parties, as all the three revisions arise out of the same order passed by the Court of II Additional Judge to the Court of District Judge, Bhopal. 2. The common question of law to be determined by this court in these revisions is whether the provisions of the Code of Civil Procedure is applicable to arbitration proceedings pending before the court. 3. The short facts leading to all the three revisions are as under : There were certain contracts entered between the applicant Bharat Heavy Electricals Ltd., Bhopal (for short BHEL) and the non-applicant M/s. Shelly Products, Bhopal for supply of packing materials from time to time to the BHEL. The contracts contained an arbitration clause to the effect that in case of dispute, the same would be referred to two arbitrators, i.e., one to be appointed by the applicant and the other by the non-applicant and their decision would be final and binding on the parties. Since a dispute arose between the parties, the matter was referred to Shri S. B. Dubey, an arbitrator appointed by the non-applicant and Shri S. V. Laxminarayanan, arbitrator appointed by the applicant. Successive arbitrators were appointed, as the earlier arbitrators were transferred. 4. The non-applicant M/s. Shelley Products, Bhopal, therefore moved an application before the court of the II Addl. Judge to the Court of District Judge, Bhopal for appointment of arbitrators. 5. The Trial Court on 22.4.1985 proceeded ex parte against the applicant BHEL and recorded ex parte evidence and passed ex parte order on 30.4.1985 appointing Sri B. D. Jha, a retired Chief Engineer of the Irrigation Department, as arbitrator. The applicant BHEL filed an application on 2.5.1985 under Order 9, Rule 13, C.P.C., read with Section 151 for setting aside the ex parte Order. The Trial Court by the impugned order date 14.2.1989 dismissed the applications holding that the provisions of the Code of Civil Procedure are not made applicable in arbitration proceedings, against which these revisions have been filed. 6. Without entering into any controversy, the provisions of Sections 41 of the Arbitration Act may be looked into, which reads as under : "41. 6. Without entering into any controversy, the provisions of Sections 41 of the Arbitration Act may be looked into, which reads as under : "41. Procedure and powers of Court - 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." Section 41 relates to matters subsequent to an application to the Court to file an arbitration agreement etc. As such, this provision makes it clear that the procedural rules of the Code of Civil Procedure are applicable to the proceedings in the court under the Act. 7. No doubt, Order 9 is applicable only to suits and the proceedings under the Arbitration Act pending before the court cannot be construed to be suits in its strict sense. However, by virtue of Sec. 141 of the Code of Civil Procedure which, in turn, states that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction, ipso facto makes Rule 9 applicable to proceedings pending before civil court under the Arbitration Act. 8. In Paras Ram Sood v. Union of India (ILR (1974) HP 1038); it has been ruled that the provisions of the Code of Civil Procedure will apply to all proceedings before the court under the Arbitration Act and an application, when dismissed in default, requiring restoration under, Rule 9, C.P.C., the provisions of Order 9 are made applicable to the proceedings in court. Thus, Section 41 of the Arbitration Act clinches the issue. This is not all. Even the other provisions like Order 6, Rule 17, C.P.C., are also made applicable. See : Indian Minerals Co. v. Northern India Lime Marketing Association ( AIR 1958 All 692 ). As such, Section 41(a) of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to all proceedings before the Court. 9. Therefore, the opinion of this Court, the Trial Court has misdirected itself in deciding the point in issue that under Section 151, C.P.C. no restoration order could be passed as the provisions of the Code of Civil Procedure are not made applicable to proceedings under the Arbitration Act. 9. Therefore, the opinion of this Court, the Trial Court has misdirected itself in deciding the point in issue that under Section 151, C.P.C. no restoration order could be passed as the provisions of the Code of Civil Procedure are not made applicable to proceedings under the Arbitration Act. The conclusion reached by the Trial Court is against the specific provisions of Section 41(a) of the Arbitration Act and therefore cannot be sustained. 10. For the foregoing discussion, the order impugned is set aside and the Trial Court is directed to decide the application of the applicant-BHEL dated 2.5.1985 made under Order 9, Rule 13, C.P.C. and to consider as to whether sufficient cause and good cause is made out for setting aside the ex parte order dated 30.4.1985. No order as to costs.