TaxTMI 
TaxTMI 
2001 (2) TMI 979
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....5 (Balance Work). In a Special Suit No.31 of 1993 filed by the present respondent, the High Court of Calcutta vide its order dated 25.6.1993 directed appointment of Arbitrator to settle their disputes. The Arbitrator passed an award on dated 28.12.1996 against the appellants herein which was filed before the High Court on 6.3.1997. Notice for filing objections was received by the appellants on 21.03.1997. Time of 30 days for filing the objections expired on 20.4.1997, which was a Sunday and, therefore, the date stood extended to 21.4.1997. The matter was placed before the Court on 28.4.1997 and on that day the Court rejected the oral prayer of the learned counsel for the appellants that since objection application under Sections 30 and 33 of the Act was under preparation, time to file such application be granted. The award was made rule of the Court on the same day. On 5.5.1997, appellants filed an application for setting aside the ex-parte decree and also submitted that application under Section 30 was ready. In the said application, grounds for setting aside the award and for condoning delay in filing application were mentioned. Thereafter, another application under Section 33 of....
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....any proceedings before the Court: Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. Aforesaid Section is also required to be read in context of Section 141 of the CPC, which is as under: - 141. Miscellaneous Proceedings.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. [Explanation.In this section, the expression proceedings includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution] Section 41 of the Act leaves no doubt that in a proceeding where an application is filed for passing the decree on the basis of the award submitted by the arbitrator, the provisions of the CPC are applicable and there is no provision which excludes operation of Order IX. Similarly, in view of Section 141 of the CPC, the procedure prescribed in the Code is to be followed as far as it can be made applicable to all proceedings in the Court of civil jurisdiction. Hence....
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....as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it. (2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court: Provided that any time so fixed may be extended by subsequent order of the Court. (3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed. (Emphasis added) 17. Judgment in terms of award.Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award. 30. Grounds for setting asi....
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....passing a decree. (d) The power of the Court to modify the award under Section 15 or to remit the award to the arbitrator for reconsideration under Section 16 varies from the jurisdiction of the Court to set aside the award under Section 30 or to determine the validity of the arbitration agreement or an award under Section 33. The result isbefore pronouncing judgment, the Court has to apply its mind to arrive at the conclusion whether there is any cause to modify or remit the award. Further the phrase pronounce judgment would itself indicate judicial determination by reasoned order for arriving at the conclusion that decree in terms of award be passed. One of the meaning given to the word Judgment in Websters Comprehensive Dictionary [International Edition, Vol. I (1984)] reads thus : the result of judging; the decision or conclusion reached, as after consideration or deliberation. Further, Order XX Rule 4(2) C.P.C. in terms provides that Judgment shall contain a concise statement of case, the points for determination, the decision thereon, and the reasons for such decision. This is antithesis to pronouncement of non-speaking order. Section 17 of the A....
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....the judgment without considering the provisions of Sections 15 and 16 of the Act, which provide, as stated above, for modification or correction of any award or for remitting it to the arbitrator for re-consideration on the ground that (i) there is any error of law apparent on the face of the award, (ii) the award is incapable of being executed, (iii) the award has left undetermined any of the matters referred to arbitration, (iv) that a part of the award is upon a matter not referred to arbitration and (v) the award contains any obvious error. Jurisdiction of the Court to pronounce judgment depends on exercise of its power to modify or remit the award. Further, the Full Bench of the High Court arrived at the conclusion that decree passed in terms of Section 17 of the Act where no objection has been filed cannot be said to be an ex-parte decree because (1) even if both the parties are absent, the Court has duty to pass a decree unlike the provision of Order IX of the CPC; (2) the Court passes the decree on the basis of award, which may not be a speaking one and no party before it is required to file its proof in respect of its claim or defence; and (3) in a suit there is ....
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....statement is accepted, the provisions of Section 41 of the Act and Section 141 of CPC would be nugatory. At this stage, we would refer to some decisions, which were referred to by the High Court. The Court referred to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Ganeshmal Bhawarlal v. Kesoram Cotton Mills Ltd. [AIR (39)@@ JJJJJJJJJJJJJJJJJJJJJJ 1952 Calcutta 10], wherein the learned Single Judge observed that inspite of Section 43 of the Arbitration Act and Section 141 of the CPC strictly the provision of Order IX Rule 13 does not apply to proceedings for setting aside an ex parte decree passed under Section 17 but the principles of Order IX Rule 13 CPC should be followed and the judgment and decree passed under Section 17 could be set aside where such decree was passed without duly giving the notice of filing the award or without allowing the time for applying to set aside the award to expire. In Government of A.P. v. Bactchala Balaiah [AIR 1985 A.P. 52], the High Court considered various decisions to the same effect and held that provision of Order IX Rule 13 will not apply to the decree passed under Section 17 of the Arbitration Act in terms of the award filed in th....
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....963, if the court has not pronounced judgment for whatever reason, although the time prescribed for making the application has expired and an application for setting aside the award is made with a prayer for condonation of delay, the court cannot pronounce judgment until the application is rejected. The Court also observed that even after a decree is passed under Section 17, an application under Section 30 can be entertained provided sufficient cause is established. In either case, the rejection of the application would be a refusal to set aside the award. In case where such application is rejected on the ground that it is delayed and no sufficient cause has been made out under Section 5 of the Limitation Act, it would be an appealable order under Section 39(1)(vi) of the Act. In the present case, before passing decree on 28th April, 1997, the learned Advocate for the appellant prayed@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ for extending the time for tendering objection application@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ under Section 30/33 of the Act. By some mistake that being an oral prayer, as recorded in the judgment, was rejected by the Court and the decree was passed. T....
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.... was sufficient cause for condoning the delay, the Court ought to have set aside the ex parte decree passed on the basis of the award. At this stage, we would mention that before referring the question to the Larger Bench, the Division Bench in its judgment dated 16th December 1998 held that in the application filed under Section 33 of the Act, which was affirmed earlier, the appellant had prayed for condonation of delay and asked leave to file application under Section 33 on the ground stated therein. The Court observed that there was some procedural error in seeking leave of the Court to file objections, but it would not warrant a rejection of the prayer. The Court also held that there was no dispute that the case papers had been handed over by the appellants representative to the counsel for drafting the application under Section 33 on 17th April 1997 before the expiry of the period of limitation; after that matter was beyond the control of the appellant until the application was prepared; delay of counsel in preparing and finalising the draft cannot be attributed to the appellant; the application was settled by senior counsel on 29th April 1997; thereafter it was type....