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2006 DIGILAW 127 (JHR)

Shambhulal Agrawal v. Pannalal Ramnarayan

2006-02-17

M.Y.EQBAL

body2006
ORDER M.Y. Eqbal, J. 1. Heard Mr. P.K. Prasad, learned counsel appearing for the petitioner. 2. This application under Article 227 of the Constitution of India is directed against the order dated 5.8.2005 passed by the Subordinate Judge-I, Hazaribagh in Execution Case No. 1 of 2004, whereby she has rejected the objection filed by the petitioner- judgment debtor under Order XLVII, CPC. The petitioner challenged the award of the arbitrator as being illegal and inexecutable as the same being a nullity. 3. Mr. P.K. Prasad, learned counsel, submitted that the very proceeding for appointment of the arbitrator initiated by the other side was illegal and void and, therefore, the award is a nullity. Learned counsel has strongly relied on the decision of the Supreme Court reported in AIR2005SC214 , Dharma Prathisthanam v. Maddhok Construction Pvt. Ltd. 4. From perusal of the impugned order, it appears that the respondent invoked arbitration clause and appointed arbitrator. The arbitrator, so appointed by the respondent, proceeded with the arbitration and gave an award. It further appears that the Court below has taken note of the fact which was apparent from the award that several opportunities were given to the petitioner to participate in the arbitration proceeding, but neither the petitioner attended a single meeting nor did he send any reply in spite of the notices duly received by the petitioner. 5. The Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996 are exhaustive and self-contained Act. In both the aforesaid Acts, all the procedures relating to arbitration at different stage have been provided. If there is illegality in the matter of appointment of arbitrator, the aggrieved party may challenge the very appointment of arbitrator as illegal and not in accordance with law. After passing the award of the arbitration, the parties have been provided forum to challenge the award as a nullity. In my opinion, therefore, at the stage of execution of the award, a party cannot be allowed to raise objection with regard to nullity of the award, particularly when the said party has neither participated in the proceeding nor challenged the validity of the appointment of the arbitrary before the appropriate forum. In my opinion, therefore, at the stage of execution of the award, a party cannot be allowed to raise objection with regard to nullity of the award, particularly when the said party has neither participated in the proceeding nor challenged the validity of the appointment of the arbitrary before the appropriate forum. In the case referred above by the learned counsel (supra), the fact was that after the award was passed by the arbitrator under Section 14 of the Arbitration Act, 1940, notices were issued and then an objection was raised by filing application under Section 30 of the said Act challenging the legality and validity of the award and also that the award is a nullity. In that context, the Apex Court held that even if at the stage of making the award a decree, the legality and validity of the same can be challenged. In my opinion, if a person who neither challenges the validity of the appointment of the arbitrator nor participates in the arbitration proceeding in spite of the service of notice, cannot be allowed to challenge the award as a nullity in a execution proceeding. If that is allowed, then the whole purpose and spirit of the Arbitration Act shall be frustrated. In my opinion, therefore, the Court below rightly held that at the stage of execution, if a party did not avail other remedy, cannot challenge the award as a nullity. 6. For the aforesaid reasons, I do not find any illegality in the impugned order. This writ petition is dismissed. Petition dismissed.