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2002 DIGILAW 33 (JK)

Jamshed & Co. v. J&K Cements Ltd.

2002-02-27

B.L.BHAT

body2002
1. This appeal is directed against the Judgment and decree of learned District Judge, Srinagar, dated: 23-05-2000, refusing to set aside the award passed by the Arbitrator in the arbitration proceedings conducted by him under Arbitration Act 1940, dated: 30-11-1998 in case Jamsheed and Co, through G.A. Mir, Vs. J&K Cement Ltd. and others. 2. The facts leading up to this appeal are that a labour contract for material handing came to be allotted to the petitioner/appellant by the respondent J&K Cement Ltd. Srinagar through its General Manager respondent No. 2 herein under his allotment Order No. KCW:GM:LC: 96-20998 dated: 05-04-1996. That during the subsistence of the contract disputes arose between the parties which resulted in the termination of the contract by the respondent No. 1 through its Deputy General Manager, the respondent No. 4, by virtue of his letter dated: 23-05-1997 addressed in the name of the appellant. That the appellant petitioner approached before this court through the medium of an application in terms of Section 20 of the Jammu and Kashmir Arbitration Act for appointment of General Manager of the respondent factory for passing of an award and same be made rule of the court with further prayer that the order of termination of contract be kept in abeyance till the passing of the award passed by the Arbitrator. This petition came to be transferred to the learned District Judge Srinagar by virtue of this court order dated: 10-07-1997. The learned District Judge on receipt of the file, after hearing the parties on 27-07-1997 came to appoint respondent No. 2 as sole Arbitrator with a direction to enter into reference for the determination of the dispute in between parties and to submit its report within four months from the date he enters into reference. That the learned Arbitrator pursuant to this order of this court came to file his award dated: 30-11-1998 before the learned trial court on 01-05-1999. That on receipt of the award the learned trial court appear to have issued notices of the same to the learned counsel for the parties. That the respondent did not prefer the objections to the award, however, the award filed their objections on 17-05-1999, wherein they came to assail the correctness of the award on the grounds that the arbitrator mis-conducted himself as well as in the arbitral proceedings. That the respondent did not prefer the objections to the award, however, the award filed their objections on 17-05-1999, wherein they came to assail the correctness of the award on the grounds that the arbitrator mis-conducted himself as well as in the arbitral proceedings. The respondents file their objections but the trial court without affording any opportunity to the appellant to substantiate its objections came to accept the same and make the award rule of the court. 3. Heard the learned counsel for the parties. 4. Section 30 of the Arbitration Act (short Act) lays down the grounds for setting aside the award which are that: (a) the arbitrator or umpire has misconducted himself or in the proceedings (b) that the award has been made after the arbitration proceedings have become invalid under Section 35 of the Act (c) the award has been improperly procured on its otherwise invalid. On proof of any one of the afore grounds the award can be set aside. Section 33 of the Act lays down the procedure and provides that when any party to an agreement or any person claim under him desire to challenge the existence or validity of an arbitration agreement or an award or to have the effects to either determined shall apply to the court and court shall decide the question on affidavits. This being so, when a party to the agreement objects to the validity of the award on the ground that the Arbitrator has mis-conducted himself which is factual in nature in that case the court has no choice but to decide such objection by giving an opportunity to such party to prove his claim by affidavits or by other evidence after framing necessary issues in this behalf, of course, with a right of rebuttal to the other side. Having regard to this law, let us examine the record of the case. Having regard to this law, let us examine the record of the case. The record of the case reveals that the learned trial court on receipt of the objection ostensibly under Section 30 of the Act, from the appellant to the award filed in the case wherein he has assailed the award on the ground that the arbitrator has misconducted himself has not granted any opportunity to him to prove his claim put forth by him to the award, when the mandate of the law is that an opportunity was to be given to him in terms of Section 33 of the Act for proving his claim by affidavit or by other evidence. This being so, the judgment and the decree is not sustainable and case for remanding the file back to the trial court is made out. Therefore, the appeal is accepted. The impugned judgment and decree is set aside and the case is remanded back to the court with the direction to dispose of it in the light of aforesaid observations. Let the record of the case be sent back to the learned trial court along with the copy of this judgment, where the parties shall cause their appearance on 20-03-2002. No costs.