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2006 DIGILAW 838 (MP)

Gyanchand v. Sushila Bai

2006-07-11

A.K.SHRIVASTAVA

body2006
JUDGMENT 1. The unsuccessful defendant has filed this second appeal assailing the judgment and decree passed by the learned first appellate Court decreeing the suit of plaintiff/respondent No.1 by reversing the judgment and decree passed by the trial Court. 2. A suit for declaration of Bhumiswami right and possession has been filed by the plaintiff on the averment that she is the wife of defendant/ appellant. Some matrimonial dispute arose between them, as a result of which a caste panchayat was assembled and both the parties namely plaintiff and defendant No.1 narrated the circumstances to the Panchas. According to the plaintiff, both the parties agreed to get the matter decided by the Panchas. The Panchas after hearing both the parties passed an award on 20.2.1982. Since the conditions embodied in the arbitration award (Ex. P-8) were not fulfilled by defendant No.1, the plaintiff filed a suit on 28.10.1988 for compliance of the directions given in the award and thus, it has been prayed that in terms of the award, the possession of suit property be delivered to her and she be declared Bhumiswami of the suit property which is agricultural land. 3. The defendant/appellant refuted the plaint averments by filing written statement and contended therein that the panchayat was called without his consent, and against his will his signatures were obtained on the award. A plea of limitation was also raised in the written statement. 4. The trial Court after framing the necessary issues and after recording the evidence came to hold that without the consent of the defendant/ appellant, forcibly his signatures were obtained on the award dated 20.2.1982. Accordingly to the trial Court, no rights are accrued to the plaintiff on the basis of the said award and the suit is barred by time. Eventually, the trial Court dismissed the suit. 5. The plaintiff feeling aggrieved by the judgment and decree passed by the trial Court preferred first appeal before the learned first appellate Court which has been allowed by the impugned judgment and suit of the plaintiff has been decreed. Hence this second appeal has been filed by the defendant/appellant. 6. This Court on 14.7.2000 framed the followng substantial questions of law: "(1) Whether the suit filed by the respondent No.1 against the appellant was barred in view of the allegations made by her in paragraphs 4 and 7 of the plaint? Hence this second appeal has been filed by the defendant/appellant. 6. This Court on 14.7.2000 framed the followng substantial questions of law: "(1) Whether the suit filed by the respondent No.1 against the appellant was barred in view of the allegations made by her in paragraphs 4 and 7 of the plaint? (2) Whether in view of the undisputed allegations in te plaint that the caste Panchayat was convened on oral reference made by the parties, the document Ex. P-8 can be treated as an award within the meaning of Arbitration Act? (3) Whether in absence of an agreement in writing to refer the matter to an arbitrator, the Court still can come to the conclusion that the award is under the Arbitration Act and it can be enforced under section 30 thereof?" 7. I have heard Shri Rakesh Jain and Ku. Nupu Jain, learned counsel for the appellant and perused the record. Regarding Substantial Questions of Law No.2 and 3 : 8. On going through the plaint as well as the other material placed on record, it is gathered that the plaintiff is claiming her case on the basis of so called arbitration award dated 20.2.1982. According to learned first appellate Court, the present suit has been filed for the specific performance of the arbitration award. In this regard para 15 of the judgment may be seen. The arbitration award can be enforced by filing the award in Court in terms of section 14 of the Arbitration Act, 1940 (for brevity 'the Act') by the arbitrator and thereafter the Court if it thinks fit that the award is not required to be modified or is required to be remitted to the arbitrator as required under sections 15 and 16 of the Act, may pass a judgment in terms of award as envisaged under section 17 of the Act. 9. In order to attract the above said provisions, first of all there should be the applicability of the Act. The Act would be applicable only when the arbitration agreement is in writing. 9. In order to attract the above said provisions, first of all there should be the applicability of the Act. The Act would be applicable only when the arbitration agreement is in writing. In this regard I may profitably rely the definition of "Arbitration Agreement" as envisaged under section 2 (a) of the said Act which reads thus: "Arbitration agreement" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." On going through the above said definition, it is luminously clear that an arbitration agreement should always be in writing. To constitute a valid arbitration agreement, the condition of its in writing is mandatory and pre-supposed. In that regard, it will be fruitful to place reliance on the decision of the Supreme Court Chander Nath Ojha v. Suresh Jhalani and others [ (1999) 8 SCC 628 ]. I may also profitably rely two decisions of the Division Bench of this Court on the point they are Shriram Food & Fertilizer Industries and another v. Alpine Solvex Ltd. [1994 (2) Vidhi Bhasvar 180] and Govind Prasad Agarwal v. Bhurelalji Agarwal and others [ 1994 JLJ 131 ]. Admittedly, there is no agreement in writing between the plaintiff and defendant No.1. As per the case of the plaintiff, since there were certain matrimonial dispute betwen her and her husband, a caste panchayat was assembled in which both of them stated their case. This could hardly be said to be an arbitration agreement. Admittedly there is no arbitration agreement in writing and if that is the position, I am of the view that the Act of 1940 and its provisions are not at all applicable in the present factual scienario. The award Ex. P-8 dated 20.2.1982 cannot be said to be an award in terms of section 14 of the said Act and, therefore, the impugned judgment cannot be said to be a judgment in terms of award as envisaged under section 17 of the Arbitration Act. Except the provisions envisaged under the Act, there is no provision to enforce an arbitration award. 10. Except the provisions envisaged under the Act, there is no provision to enforce an arbitration award. 10. The substantial question of law No. 3 is thus answered that in absence of any agreement in writing to refer the matter to an arbitrator, the Court was not having any jurisdiction to arrive at a conclusion that the award is under the Act and it can be enforced under section 30 thereof. By such an award (Ex. P-8), no right has been accrued to the plaintiff and, therefore, the first appellate Court erred in substantial error of law by decreeing the suit of plaintiff which is based on the arbitration award Ex.P-8 dated 20.2.1982. 11. The substantial question of law No.2 is answered that there cannot be any oral reference for arbitration and the document Ex. P-8 cannot be treated as an arbitration award within the meaning of section 14 of the Act. Regarding Substantial Question of Law No.1: 12. For the sake of the arguments if it is held that Ex. P-8 is an award of the arbitrator, then according to Article 119 of the Indian Limitation Act the same should have been filed within 30 days in the Court to make it rule of the Court from the date of service of notice of making of award. On going through the award, it is found that the parties have signed on the award, which would mean they had notice of passing of the award. On going through the averments made in para 7 of the plaint, it is gathered that the plaintiff is resting her case on this award dated 20.2.1982. The suit was filed on 28.10.1988 and if that is the position, since under Article 119 of the Indian Limitation Act, the award was required to be filed within 30 days, the same has become time barred. Thus, the substantial question of law No.1 is answered that suit filed by respondent No.1 against the appellant was barred by the prescribed period of limitation. 13. For the reasons stated hereinabove, this appeal is allowed. the impugned judgment and decree passed by the first appellate Court is hereby set aside and the suit of plaintiff is hereby dismissed. However, since the respondents have not come to oppose this appeal, the appellant is hereby directed to bear his own cost.