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1993 DIGILAW 430 (CAL)

STATE OF WEST BENGAL v. Bidyut Kumar Das

1993-09-17

PRABIR KUMAR MAJUMDAR

body1993
JUDGMENT 1. THIS is an application taken out by the State for setting aside the Award dated 16.12.1991 passed by the sole arbitrator in respect of Tender No. 37/se (S) of 1982-83. 2. MR. Bagchi Senior Advocate, appearing for the State, takes a preliminary point contending that the award cannot be filed in this court because the entire cause of action arose outside the territorial jurisdiction of this Court. According to Mr. Bagchi this Court is not the proper Court where the award has to be filed and if the award cannot be entertained by this Court then this application for setting aside the award cannot be pressed in this Court. Mr. B. B. Sarkar, the Learned Advocate, appearing for the respondents, submits that by an order passed by this court dated 6. 7. 1988, this court appointed the sole arbitrator or an application under Sections 5, 8, 11, and 12 of the Arbitration Act. Pursuant to the said appointment made by this court the arbitrator had entered upon a Reference and proceeded with the same resulting in the said award which is now under challenge. Mr. Sarkar has cited a Supreme Court decision in State of Madhya pradesh v. M/s. Saith and Skelton (P) Ltd and Ors. reported in AIR 1972 SC 1506 to submit that since the arbitrator had been appointed by this court this is the court where the award ought to be filed and no other court. It is decided by the Supreme Court in this case that the Court which appoints an arbitrator to make an award is the court under Section 14 (2} where the award can validly be filed. It is also observed where the Appeal Court has appointed an arbitrator to make an award it is that Court in which the award can validly be filed and this is particularly so when that Court has not divested itself of its jurisdiction to deal with the award or the matters arising out of the award. This view has also been reiterated In another case by the Supreme court in Guru Nanak Foundation v. Ratan Singh and Sons AIR 1981 SC 2075 . 3. IT appears to me that there is substance in the argument of Mr. Sarkar, appearing for the respondents. This view has also been reiterated In another case by the Supreme court in Guru Nanak Foundation v. Ratan Singh and Sons AIR 1981 SC 2075 . 3. IT appears to me that there is substance in the argument of Mr. Sarkar, appearing for the respondents. It appears to me that under Section 31 of the Arbitration act it is provided in sub-section (2) that notwithstanding anything contained in any other laws for the time being in force, all questions regarding validity and existence of an award or an arbitration agreement between the parties to the agreement shall be decided by the court in which the award has been or may be filed and by no other Court. Under sub-section (4) of Section 31 it is provided that where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference shall be made in that Court and in no other Court. Under subsection (4) of Section 31 it is provided that where in any Reference any application under this act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that Reference shall be made in that Court and in no other Court. 4. IN the instant case the arbitrator has been appointed by this Court by an application under Section 8 oil the Arbitration Act and the arbitrator has to file the award in this court and in no other Court under the provisions of Section 17 as also Section 31 of the arbitration Act. Therefore, on the point of jurisdiction I have no hesitation to hold that this court has jurisdiction to entertain an application for setting aside the award where the award has been filed in this Court and has to be filed in this court. On merits of the award I find that the impugned award being a non speaking award cannot be interfered with on the ground as contended by the learned Advocate, appearing for the petitioner that the sole arbitrator has misconducted himself as also the proceedings by entertaining certain claims not allowable under the contract. On merits of the award I find that the impugned award being a non speaking award cannot be interfered with on the ground as contended by the learned Advocate, appearing for the petitioner that the sole arbitrator has misconducted himself as also the proceedings by entertaining certain claims not allowable under the contract. It is also submitted on behalf of the petitioner that the arbitrator has allowed certain claims contrary to the provisions of the contract. It appears that the award is a non-speaking award giving no reasons in support of the conclusions arrived at by the arbitrator and therefore, it is not possible to ascertain whether the arbitrator has allowed certain claims contrary to the provisions of the contract as no contract has been referred to in the arbitration or any clause thereof. It is now settled proposition that where no contract or document is appended or referred to in the award, the Court cannot look into the same in order to find out whether the arbitrator has committed an error which appears on the face of the award. I do not see any ground to interfere with the award. The award is sustained. 5. THIS application for setting aside the award is dismissed. There will be no order as to costs. Application rejected.