# SUPREME CO:CRT REPORTS [i953] KUMBHA MAvVJI v. UNION O:F INDIA

- **Citation:** [1953] 1 S.C.R. 878
- **Court:** Supreme Court of India
- **Decided:** 1951-02-23
- **Case number:** CIVIL APP.ELLATE .JURISDICTION : Civil Appeals Nos. 133 and 131of1952
- **Bench:** iVIEHR CHAND MAHAJAN, VrvIAN BosE, Jagannadha Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-co-crt-reports-i953-kumbha-mavvji-v-union-o-f-india-215
- **Pages:** 16

## Headnote

Indian Arbitration Act (II of 1940), ss. 14 (2), 31 (3) and (4)
--Filing of award--Urnpire handin(I o·ver award to parties--li'iling
in Court by part11--Necessity of a11thorisa.tion of arbitrator or mnpi1'e--Award filed in two Courts--Exclnsive j11risdiction of Co11rt
in which awa.rd was filed earlier-Filinu awctrrl after arbitration is
coinpletc--Applicability of s. 31 ( 4)--"In a reference", meaninq of.
The mere filing of award in Court by a party to it without
the authority of the arbitrator or umpire is not a su!licient OOlllpliance with the terllls of s. 14 of the Indian Arbitration Act,
1940, nor can it bo inferred from the mere handing over of the
original award by the umpire to both the parties that he autlwrised thelll to file the same in Court on his behalf; that authority
has to be specifically alleged and proved.
The phrase "in a reference" in s. 31, sub-s. (4), of the Indian
Arbitration Act1 1940, is coml_)rehensive enough to cover an applic.
ation first made after the arbitration is completed and a iinal
award made, and the
sub~section vests exclusive jurisdiction in
the Court in which an application for filing an •ward has been
first made nuder s. 14 of the Act.
The respondent who was a party to an award filed itn application before the Subordinate Jndge of Gauhati under s. 14 ('2) of
the Indian Arbitration Ad, on tho 10th August, 1949, praying
that the umpire may be directed to file the award in Court and
upon this notice \Yas issued to the umpire to file the award in
Court before 24th August, 1949.
As the original award had been
handed over to the parties, the umpire sent by post on the 18th
August, 1949, a copy of the award signed by him.
The Court
directed the respondent to file the original award in Court and he
did so on the 3rd September, 1949. :\!eanwhile the appellant's
solicitors sent to the Registrar of the Calcutta High Court Original Side, on the 17th August, 1949, the original award for being
filed in Court and the award was filed on the 29th August:
Held, that, as the umpire had, on the direction of the Subordinate Jndge of Gauhati sent a copy of the award signed by him
to the Court on the 18th August, 1949, the earlier filing for the
purposes of s. 31(3) of the Arbitration Act was in the Ganhati
Court and not in the Calcutta High Court, though the original
award was filed by the respondent in the Gauhati Court only after
the appellant's solicitor had sent the award for filing to the
S.C.R.
SUPREME COURT REPORTS
879
Calcutta High Court.
In the circumstances the Gauhati Court
1953
alone had jurisaicition to proceed with the hearing of the dispute
-
under s. 31 of the Act.
KumbhaMawji
Judgment of the Calcutta High Court affirmed.
v.
Union of lndia ..
CIVIL APP.ELLATE
.JURISDICTION : Civil Appeals
Nos. 133 and 131of1952.
Appeals from the .Judgment and Decree dated the
23rd February, 1951, of the High Court of .Judicature
at Calcutta (Harries C.J. and Bannerjee .J.) in Appeal
No. 11of1950 arising out of the Judgment and Decre 0
dated the 16th day of December, 19i9, of the said High
Court (Sinha J.) in its Ordinary Original Civil .Jurisdiction in Award Case No. 208 of 19i9.
N. 0. Chatterjee (Amiya Kumrir Jfukhe1:jea, with
him) for the appellant.
0. K. Driphtary, Solicitor-General for India (G. N.
Joshi and Jindra Lal, with him) for the respondent.
1953. April 16. The .Judgment of the Court was
delivered by
JAGANXADHA DAS J.-On the 28th of January,
1948, the appellant, Khumba Mawji, entered into an
agreement with the respondent, the Dominion of
India (as it then was) to manufacture and supply, to
the Bengal Assam Railway, stone boulders and ballast
from Chutiapara quarry. The agreement was entered
into at Calcutta, though the work was to be carried
ont in Assam. It was a term of the agreement that
if any differences arose between the parties, they were
to be referred to the arbitration of two persons, one
to be nominated by each side, and that if the arbitrators were not able to agree, the matter was t

## Text

L...
1953
Apdl lo.
878
SUPREME CO:CRT REPORTS
[i953]
KUMBHA MAvVJI
v.
UNION O:F INDIA-
[iVIEHR CHAND MAHAJAN, VrvIAN BosE and
JAGANNADHA DAS JJ.]
Indian Arbitration Act (II of 1940), ss. 14 (2), 31 (3) and (4)
--Filing of award--Urnpire handin(I o·ver award to parties--li'iling
in Court by part11--Necessity of a11thorisa.tion of arbitrator or mnpi1'e--Award filed in two Courts--Exclnsive j11risdiction of Co11rt
in which awa.rd was filed earlier-Filinu awctrrl after arbitration is
coinpletc--Applicability of s. 31 ( 4)--"In a reference", meaninq of.
The mere filing of award in Court by a party to it without
the authority of the arbitrator or umpire is not a su!licient OOlllpliance with the terllls of s. 14 of the Indian Arbitration Act,
1940, nor can it bo inferred from the mere handing over of the
original award by the umpire to both the parties that he autlwrised thelll to file the same in Court on his behalf; that authority
has to be specifically alleged and proved.
The phrase "in a reference" in s. 31, sub-s. (4), of the Indian
Arbitration Act1 1940, is coml_)rehensive enough to cover an applic.
ation first made after the arbitration is completed and a iinal
award made, and the
sub~section vests exclusive jurisdiction in
the Court in which an application for filing an •ward has been
first made nuder s. 14 of the Act.
The respondent who was a party to an award filed itn application before the Subordinate Jndge of Gauhati under s. 14 ('2) of
the Indian Arbitration Ad, on tho 10th August, 1949, praying
that the umpire may be directed to file the award in Court and
upon this notice \Yas issued to the umpire to file the award in
Court before 24th August, 1949.
As the original award had been
handed over to the parties, the umpire sent by post on the 18th
August, 1949, a copy of the award signed by him.
The Court
directed the respondent to file the original award in Court and he
did so on the 3rd September, 1949. :\!eanwhile the appellant's
solicitors sent to the Registrar of the Calcutta High Court Original Side, on the 17th August, 1949, the original award for being
filed in Court and the award was filed on the 29th August:
Held, that, as the umpire had, on the direction of the Subordinate Jndge of Gauhati sent a copy of the award signed by him
to the Court on the 18th August, 1949, the earlier filing for the
purposes of s. 31(3) of the Arbitration Act was in the Ganhati
Court and not in the Calcutta High Court, though the original
award was filed by the respondent in the Gauhati Court only after
the appellant's solicitor had sent the award for filing to the
S.C.R.
SUPREME COURT REPORTS
879
Calcutta High Court.
In the circumstances the Gauhati Court
1953
alone had jurisaicition to proceed with the hearing of the dispute
-
under s. 31 of the Act.
KumbhaMawji
Judgment of the Calcutta High Court affirmed.
v.
Union of lndia ..
CIVIL APP.ELLATE
.JURISDICTION : Civil Appeals
Nos. 133 and 131of1952.
Appeals from the .Judgment and Decree dated the
23rd February, 1951, of the High Court of .Judicature
at Calcutta (Harries C.J. and Bannerjee .J.) in Appeal
No. 11of1950 arising out of the Judgment and Decre 0
dated the 16th day of December, 19i9, of the said High
Court (Sinha J.) in its Ordinary Original Civil .Jurisdiction in Award Case No. 208 of 19i9.
N. 0. Chatterjee (Amiya Kumrir Jfukhe1:jea, with
him) for the appellant.
0. K. Driphtary, Solicitor-General for India (G. N.
Joshi and Jindra Lal, with him) for the respondent.
1953. April 16. The .Judgment of the Court was
delivered by
JAGANXADHA DAS J.-On the 28th of January,
1948, the appellant, Khumba Mawji, entered into an
agreement with the respondent, the Dominion of
India (as it then was) to manufacture and supply, to
the Bengal Assam Railway, stone boulders and ballast
from Chutiapara quarry. The agreement was entered
into at Calcutta, though the work was to be carried
ont in Assam. It was a term of the agreement that
if any differences arose between the parties, they were
to be referred to the arbitration of two persons, one
to be nominated by each side, and that if the arbitrators were not able to agree, the matter was to be
decided by an umpire to be nominated by both the
arbitrators. Differences having, in fact, arisen, the
dispute was referred to two arbitrators and on their
disagreement the matter went up to an umpire, one
Mr. P. C. Chowdhury. The umpire made two awards
on or about the 20th of .Julv, 1949, in favour of the
appellant.
By one of then1 he directed a sum of
Rs. 3,67,000 to be paid by the respondent to the
880
SUPREME COURT REPORTS
[1953]
1953
appellant on or before the 19th of Augu;~t, 1949, with
-
.. interest thereafter at 6 per cent per annum in case of
Kumbha Mawp default. J3y the other he directed a sum of Rs. 83,000
Uni'.oa ~India. to be similarly paid by the respondent to the ap:iellant. He is said to have made over each of the two
Jagannadha
awards, in original, to each of the parties. On the
DasJ.
10th of August, 1949, the respondent filed an application under section 14, sub-seCltion (2), of the Indian
Arbitration Act, 1940, before the court of the Subordinate Judge of Gauhati in Assam praying that the
umpire, Mr. Chowdhury, might be directed to file both
the awards in court so that the petitioner might get
an opportunity for filing objections thereto.
On this
application notice was issued to the umpire to file the
awards into that court before the 24th of August 1949.
The umpire sent a letter dated 18th August, 1949, to
the Subordinate Judge, which is as follows with copies
of the awards :-
"Dear Sir,
With reference to your notice in money suit No. 63
of 1949 requiring me to submit the awards made by
me in the above mentioned dispute on 20th July,
1949, I beg to submit that the two awards were made
and signed by me in the presence of the parties and
handed over to me on 20th July, 1949.
As directed
by you 1 am sending herewith copies of the same signed
by me.
On the back of each of these copies occurs
the receipt of the parties to the awards."
On receipt thereof, the Subordinate ,Judge made an
order on 24th August, 1949, in the following terms :---
"Notice on the umpire served. Seen his report forwarding copies of the award of which the originals are
said to have been made over to the parties. Applicant
to file his copy on Brd Septem her, 1949".
On the 3rd of September, 1949, the respondent filed
the awards which were handed over to it bv the
umpire, and the matter was being proceeded with by
issue of further notices Mtd filing of objectiom in the
court of the Suhordina,te .Tudge1 GauhiJ'ti, .
S.C.R.
SUPREME COURT REPORTS
881
Meanwhile on the 17th of August 1949, i.e., a week
19S3
after the respDndent made its first application in the . --
..
G h ·t.
t
th
]]
'
]" ·
M
KumbhaMawJ1
au a i cour ,
e appe ants so imtors, " essrs.
v
Mukherjee and Biswas, sent a letter to the Registrar Unian af.India.
of the High Court, Original Side, as follows :
"On behalf of our client Mr. Kumbha Mowjee we
Jagannadha
Da~ J.
beg to enclose herewith two original Awards duly
stamped and both dated 20th July, 1949, for the respective sums of Rs. 3,67 ,000 and Rs. 83,000 duly
signed by the Umpire Mr. P. C. Chaudhury for filing.
Please therefore direct the office to file the said two
Awards and to issue notices in respect thereof expeditiously."
After some correspondence between the Deputy
Registrar and the solicitors calling for some further
papers, the Deputy Registrar informed the solicitors
by his letter dated the 29th August, 1949, that the
award had been filed and asked the solicitors to take
out from the court and serve on the parties concerned
the statutory notice fixing a date for judgment upon
the said award by the Commercial Judge of the court.
Notices were thereupon issued to both the parties in
the following terms :
"To
1. Kumbha Mawji.
2. The Dominion of India represented by the
Assam Railway.
Take notice that the Award of the Umpire appointed
in the matter of the above Arbitration Agreement
had been .filed on the 29th day of August, 1949, and that
the Court hearing the commercial causes will proceed
to pronounce judgment on such award on 7th day of
November, 1949.
Dated the 29th day of August, 1949."
This notice was served on the respondent on the 2nd
of September, 1949. Thus in respect of these awards,
proceedings were initiated purporting to be under
section 14 (2) of the Indian Arbitration Act simultaneously both in the court of the Subordinate Judge
114
882
Sl'PR.EME COt'R.T REPORTS
1953
of Gauhati in Assam as well as on the Original Side
-
of the High Court at Calcutta.
•
Ku1nbha-Mawj~·
.
,
v.
The appellant m answer to the notice rnsued by the
f;nionof India. Gauhati court on 3rd September, 1949, appeared before
that court on 28th October, 1949, and obtained
Jagannadhn
adjournments from time to time until 10th December,
DaoJ.
1949.
On that date the Gauhati court rejected his
prayer for any further adjournment and fixed 20th
.January, 1950, for an ex parte hearing.
Meanwhile,
the respondent after receiving the notice issued to him
by the Calcutta High Court filed, on the 24th of
November, 1949, an affidavit dated the 15th of November, 1949, stating his objections to the jurisdiction
of the Calcutta Court and to the validity of the awards.
On
the same date a
counter affidavit thereto
dated the 19th of November, 1949, was
filed on
behalf of the appellant. On these affidavits the matter
was taken up for consideration by the Commercial
,Judge of the Calcutta High Court on the 16th of
December,
1949.
The
learned Judge overruled
J,he objections of the respondent, and passed judgment
on the two awards. On appeal therefrom by the respomlent to the Division Bench, the learned Judges
reversed the judgment of the single Judge. They held
that there had been no proper application under section 14(2) of the Indian Arbitration Act, before the
High Court of Calcutta, anrl that consequently thnt
Court had no jurisdiction to deal with the matter.
Before the learned single Judge of the High Court
the main objection taken and set out in paragraph 14
of the respondent's affirlavit dated the 15th of November 1949 was as follows:
"I submit further that inasmuch as the applic>ttion
of the Dominion of India nuder section 14 (2) of the
Indian Arbitration Act was made as aforesaid to the
said Court a,t Ganhati before the award was filed in
this Hon'ble Court by Kumbha Mawji, the Court at
Gau ha ti alone has jurisdiction."
Under section 31 (1) of the Indian Arbitration Act
an award may be filed in any court having jurisdiction
in the matter to which the reference relates. The
b
s.c.1~.
SUPREME UOCHT ItRPOH1'S
883
reference in tqis case arose out of a contract which, as
1963
already statrd, wa.s entered into a.t Calcutta. and had
--
to be performed in Assam.
Thus the Gauhati court KumbhaMawji
as well as the Calcutta High Court admittedly had Union~ India.
jurisdiction over the subject-matter of the reference.
_
The point taken, however, on behalf of the respondent
.f agannadha
in their objections was that, having regard to section
Da., .J.
31, sub-section (4) of the Aet 11nd to the fact tlmt an
application under section 14, sub-section (2) for a
direction to the umpire to file the award was made to
the Gauhati court as early as the 10th August, that
court was seized of the ·matter from that date, amt
that therefore a11y application under section 14 on a
later date to another court, though otherwise compe·
tent, was liarred u11der section 31, 'mh-section (4).
This was the main question that was Sl'riously pressed
before the learned single Judge. But the learned ,Judge
was of the opinion that section 31 (4) related only to
applications made during the pendency of a reference
to arbitration and not to applications made subsequent
to the m11king of 11n 11\rnrd. He thought that in respect of applications for filing an award the exulusive
jurisdiction w11s determined with reference
to the
question as to which was the competent court in which
the award was, in fact, first filed under section
14, sub-section (2) (as distinct from
when
the
application for the filing of the award was first presented).
In this view, the learned Judge held on the
facts th11t the 11ward must be taken to have been filed
earlier in the Calcutta court and not in the Gauhati
court. He accordingly held that the Calcutta High
Court had exclusive jurisdiction lrnving regard to section
31 (3), and hence proceeded to judgment on the 11ward,
the respondent not having filed any objections before
him in time.
On appeal, the learned Judges considered it unnecessary for them to dispose of the case on either of tlw
above grounds c:onsiclercd by the single .Judge, t<ncl
held that on the facts it was quite c.lear that there had
been no rlue filing of the aw11rd at 11ll in the Calcntta
court under seetion 14 (2) inasmuch as t\lc mrnrd3
884
SUPitEME COUitT REPOH:I18
[1953]
1953
which were claimed to have been duly ,filed were, in
K nb--;:-:\1
.. fact, not filed by the umpire ; nor was it shown that
"' :. ' awp they were filed under his authority.
On this limited
Union of India. ground they reversed the decision of the learned single
Judge and vacated the judgment given in favour of
Jaganoodha
the appellant on the basis of the two awards.
Hence
Das J.
these two appeals to us.
On the facts stated above three questions i1risc for
consideration:
(1) Whether the appellant had the authority of
the umpire to file the awards on his behalf into court
in terms of section 14 (2) of the Arbitratiou Act ;
(2) Whether in view of sub-section (3) of section 31 of the Act it can be said that the awards were
filed in the CvJcutta High Court earlier than in the
Gauhati court ; and
(3) Whether the scope of sect.ion 31, sub-section (4) of the Act is limited to applications under the
Act during the pendency of the arbitration proceedings
only.
As regards the first question, section 14, sub-section (2) provides that,
"the arbitrators or umpire shall, at the request
of any party to the arbitration agreement or any
person claiming under such party or if so directed by
the court and upon payment of the fees and charges
due in respect of the arbitration and award and of the
costs and charges of filing the award cause the award
or a signed copy of it, together with any depositions or
documents which may have been taken and proved
before them, to be filed in court, and the court shall
thereupon give notice to the parties of the filing of the
award."
This section clearly implies that where the award or
a signed copy thereof is in faut filed into court by a
party he should have the authority of the umpire for
doing so.
This is, at any rate, the assumption on
which the question has beeli dealt with in the High
Court, and it has not been contended before us that
the filing of the award into court by a party himself
s.c.R.
SUPliE:ME COURT l~EPORTS
885
though without the authority of the umpire to do
~o
1953
on his behalf, is sufficient compliance with the terms K
b-;-;,1 . . .
of this section. The learned Judges of the High Court
um
'~. awi•
were of the opinion that the authority of the umpire Union of India.
empowering the appellant to file the original awards
into court on his behalf has not been made out on the
Jagannadha
evidence in the case. The argument stressed before us
Das ·1·
is that in para 7 of the affidavit dated the 19th of
November, 1949, filed on behalf of the appellant in the
High Court on the 24th of November, 1949, it is stated
that" On or about the 21st July, 1949, the said Umpire made over the said original award to this deponent for filing." lt is urged that this is an averment of
the requisite authority from the umpire, and it is pointed out that this assertion has not been contradicted on
the other side by any reply affidavit. It is contended
therefore that the filing was valid. The learned Judges
in coming to the contrary conclusion relied on two
facts, namely, that the umpire in his letter to the
Gauhati court dated 18th August, 1949, when sending
copies of the awards in compliance with the notice
issued to him by that court merely stated that he
handed over the awards to both the parties, but did
not say that he authorised any of them to file
the same into court on his behalf. The learned Judges
were also of the opinion that the umpire as a
person of commonsense could not be supposed to
have authorised both the parties to file the awards
into court on his behalf. We are inclined to agree with
this reasoning. vVhere, as in this case, the originals
are said to have been handed over to both the
parties, it cannot be assumed that the mere handing
over of the awards to the parties necessarily implies the authority of the umpire to file the same into
court on his behalf. That authority has to be specifically alleged and proved. In the present case the
statement in the affidavit relied on by learned counsel
before us is no more than an assertion that the umpire
handed over the original awards to the appellant for
filing, but there is no allegation that they were so
handed over to him for filing on behalf of the umpire.
886
SUPREME COURT ltEPORTR
[1953]
l953
The umpire may not have been aware that the awards
K
bl ,,
.. should be filed into court onlv bv himself or under his
tun
inJ~-1.UU'J'l
h .t
·
•
v.
aut on .y.
Union of lnrfla.
.J aga.nna.dhrJ
DasJ.
Learned counsel for the appellant urged that the
question of the authorisation of the umpire for the
filing of the award by the appell1111t was one that was
not raised at all as an objection before the learned
single Judge of the High Court, and that such an
objection should not have been taken notice of for the
first time on appeal. It is no doubt true that neither
the affidavit filed on behalf of the respondent nor the
judgment of the learned single Judge gives any indication of this question having been raised in the first
court. Indeed, the learned .Judges on appeal recognise
it when they say towards the concluding portion of
their judgment as follows:
"It does not appear that the point on which the
appeal succeeds was argued in the court below. But it
is a point of law and no o~jection was taken before iis
by ·the respondent to the appellant taking the point
before us ".
Though it is somewhat difficult to see how the qnos·
tion raised can be said to be a pme question of law, it
is quite clear from the above extract that no objection
was taken by the respondent to the point being raised.
It has not been suggested before us that this statement
in the judgment was in .111y way erroneous. Appellant's counsel argued that if the learned Judges
on appeal felt inclined to dispose of the case on
this point alone, they should have called upon the
umpire to dari(y whether or not the appellant
had his authority, or given an opportunity for production of his affidavit in support of the autho1;ity.
Learned counsel presses that an opportunity should
now be allowed. It does not appear, however that it
is either necessary or desirable at this stage and after
this lapse of time to allow this matter to go back for
that purpose.
Because, apart from the question of
mere want of proof of authority, it is clear that in a
case of this kind and on the facts above stated, it was
S.C.R.
SlJP8EME COURT REPORTS
887
incumbent on. the appellant to allege categorically
19.53
that, in terms of sub-section (2) of section 4, he had
-
th
· 't
h 't
f h
·
Th
]]
·
Kumbha Mawji
e reqrns1 e aut on y o t e umpll'e.
, at a egat10n
iR wanting not only ·in the affidavit dated the 19th of Union~ India.
November, 1949, but what is more important is that
when the awards were filed into court on the 17th of
Jagannndha
August, 1949, by the solicitors on behalf of the appelDaaJ.
!ant with a letter which might be treated as the
initial application to the court, there is not a word to
suggest that the awards were being filed nuder th•.'
authority of the umpire. The letter contained only a
bald statement that the two original awards duly
signed by the umpire were enclosed therewith for
filing, with a request to direct the office to file the two
awards and to issue notices in respect thereof expeditiously.
In those circumstances, there has been
cleurly no sufficient compliunce with the terms of
section 14, sub-section (2) of the Act to constitute the
filing of the awards by the appellant's solicitors the
filing thereof by the umpire.
As regurds the second question, numely, as to
whether with reference to the terms of section 31, subsection (3) the awards should be held to have been
filed earlier in tho Calcutta court •or in the Gauhati
court, the view taken by the learned Comrnerciul
.Judge was that the filing in the Calcutta court must
lie taken to have been earlier.
For the purpose of the
consideration of this question it may be assumed that
that filing was under the uuthority of the umpire.
The learned Judge wus of the opinion that the filing
of the
awards in the Gauhati
court must be
tuken to have been made on the 3rd September
\Vhcn in pursuuncc of the prior order of the Subordinate Judge duted 24th August, 1949, the present
respondent filed into court the origi1ml uwards with
him.
In coming to this conclusion the learned Judge
ignored the fact that on 18th August, 1949, the
umpire in response to the notice previously issued
to him forwarded to the court signed copies of the
awn,rds
and that the same were in that court on
or brfore 24th August, 1949. This seems, in terms, to
l.,
888
SUPREME COURT REPORTS
[l 953]
1953
be sufficient compliance with the provi~ions of section
K
bh M
.. 14, sub-section (2) which only requires that on the
um. ;
aw;i directions of the court the original award or the copy
Union of India. thereof should be caused by the umpire to be filed into it. The learned Judge stated that he was not aware
Jagannadha
whether the copies sent to the Subordinate Judge were
Das J.
signed copies or not. The learned Judge failed unfortu1iately to notice that the umpire himself in his letter
dated 18th August, 1949, stated clearly as follows:
"As directed by you I am sending herewith copies
of the same (a wards) signed by m.e".
The learned Judge was also inclined to think that
the mere forwarding of the awards does not amount to
the filing of them. Here again, the learned Judge has
overlooked that under section 14, sub-section (2) the
actual filing by the umpire is not essential, but that it
is sufficient if the umpire C11;uses the awards to be filed.
It is not suggested that sending by post in compliance
with the notice is not such "causing",
It appears to us therefore clear that the filing of the
awards in the Gauhati court must be taken to be on
the 24th of August, 1949. So far as the Calcutta comt
is concerned, though no doubt the awards were put
into that court by the appellant's solicitors on the 17th
August, 1949, it appears clearly from the notice issued
by the Registrar dated the 30th of August, 1949, that
the awards were treated as filed only on the 29th day
of August, 1949. Paragraphs 8 and 9 of the respondent's affidavit filed in the Calcutta court on 24th of
November, 1949, contain categorica.l assertions that so
far as the Gauhati court is concerned, the copies of the
11wards were filed by the umpire on the 24th of August,
1949, while as regards the Calcutta High Court the
awards were filed on the 29th of August, l!l49.
Thes0
assertions have not been contradicted on behalf of the
appellant in the counter-PAfidavit filed on the same
day. From these facts, it is clear that the earlier ti.lino·
for the purposes of section 31(3) is in the Gauhati eomt
and not in the Calcutta court as held bv the learned
single Judge under an wroneous imprcssi"on as to the
fa,cts,
We may as well mention a,t this stage that
. "
S.C.R.
SUPREME COURT REPORTS
889
it was not . suggested before us that for legal
1953
purposes the filing of the awards in the Calcutta High K
b~l\f
..
Court (on the assumption of existence of authority in "'" :: awJ•
the appellant for such filing on behalf of the umpire) Union of India.
is not the 29th of August, 1949, but only the 10th of
August when the letter was sent by the solicitors to
Jagannadha
the Registrar enclosing the awards. \Ve mention this
Das J.
because it appears from the judgment of the Division
Bench of the Calcutta High Court that some such
point was raised there, but before us the contrary was
assumed.
We are accordingly of the opinion that
even if the authority of the umpire for the filing of
the award into court on his behalf by the appellant is
to be taken for granted, it was in the Gauhati court
that the awards must be taken to have been filed
earlier.
On this ground, therefore, we are inclined to
hold that the Gauhati court alone has jurisdiction
under section 31 (3) of the Act.
The third question which remains for consideration
is whether sub-section ( 4) of section 31 of the Indian
Arbitration Act of 1940 applies only where the first
application under the Act was made during the course
of pendency of a reference to arbitration or also to a
case like the present one where such first application is
made after the completion of the arbitration and on
the making of an award. As already stated, the learned Judges on appeal did not deal with this question.
The trial Judge, however, considered the matter, and
held that the above provision· related only to an application made during the pendency of a reference to
arbitration. In the view of the learned Judge,
"In order to attract sub-section (4) an application
must have been made during the pendency of the
reference, and if such an application had been made, all
other applications arising out of that reference (whether
made in the reference or not) must be made in that
court".
Apparently, the learned Judge construed the phrase
"in a reference" in section31, sub-section (4), as meaning "in the course of a reference", and that is ;1]so the
116
"' .
890
SUPREME COURT REPORTS
[1953]
1953
contention before us of the counsel for the appellant,
--
which requires closer examination.
Ku1nbhaMawji
,
.
"·
Section 31 of the Indian Arbitration Act of 1940 is
Union of India. in the following terms:
"(l) Subject to the provisions of this Act, an
Jagannadha
j
b
fil l
1
h ·
· ·
Da. J.
aware may
e
ec
in any Court
avmg JUrIS·
diction in the mattel' to wbich the reference relates.
(2) Notwithstanding anything contained in any
other law for the time being in force and save as otherwise provided in this Act, all questions regarding the
validity, effect or existence of an award or an arbitration agreement between the parties to the agreement
or persons claiming under them shall be decided by
the Court in which the award under the agreement has
been, or may be, filed, and by no other Court.
(3) All applications regarding the conduct of
arbitration proceedings or otherwise arising out of such
proceedings shall be made to the Court where the
a ward has been, or may be, filed, and to no other
Court.
(4) Notwithstanding :1nything contained else·
where in this Act or in any other Jaw for the time
being in force, where in any reference an application
under the 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 and the arbitration proceedings shall be made in that Court and in
no other Court".
Sub-section ( l) relates to the question as to where a
completed award has to be filed, and prescribes the
local jurisdiction for that purpose. Sub-section (2)
deals with the ambit of the exercise of that jurisdiction, and declares it to be exclusive by saying that
"all questions regarding the validity, effect or existence
of an award or arbitration agreement between the
parties ,to the agreement or persons claiming under
them shall be decided by the Court in which the award
under the agreement has been, or may be, filed and by
110 other Court". Sub-section (B) is intended to provide
. ~
S.C.R.
SUPREME COURT REPORTS
891
that all applieations regarding the conduct of arbitra1963
tion proceedings or otherwise arising out of such pro-
-
d.
b
d
1 ·
Kumbha Mawji
cee mgs are to e ma e on y m one court, and lays on
the concerned party the obligation to do so. Then comes Union ;j Indict.
sub-section (4), the object of which apparently is to go
-
further than sub-section (3), that is, not merely casting
Jagannadha
on the party concerned an obligation to file all applicaDas J.
tions in one court but vesting exclusive jurisdiction for
such applications in the court in which the first application has been already made.
·
Thus it will be seen on a comprehensive view of
section 31 that while the first sub-section determines
the jurisdiction of the court in which an award can
be filed, sub-sections (2), (B) and ( 4) are intended to
make that jurisdiction effoctive in three different ways,
(I) by vesting in one court the authority to deal with
all questions regarding the validity, effect or existence
of an award or an arbitration agreement, (2) by casting
on the persons concerned the obligation to file all
applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings
in one court, and (3) by vesting exclusive jurisdiction
in the court in which the first application relating to
the matter is filed.
The context, therefore, of subsection (4) would seem to indicate that the sub-section
was not meant to be confined to applications made
during the pendency of an arbitration. The necessity
for clothing a single court with effective and exclusive
jurisdiction, and to bring about by the combined
operation of these three provisions the avoidance of
conflict and scramble is equally essential whether the
question arises during the pendency of thn arbitration
or after the arbitration is completed or before the
arbitration is commenced. There is no conceivable
reason why the Legislature should have intended to
confine the operation of sub-section (4) only to applications made during the pend ency of an arbitration, if
as is contended, the phrase "in any reference " is to be
taken as meaning " in the course of a reference ".
It may be noticed that the Arbitration Act deals with
arbitrations of three different categories: (I) arbitration
•
892
SUPI'tEM:E COUl'tT REPOR1
1S
[195:!]
1963
without intervention of the court, dealt with in
K
;,:~ .. sections 3 to 19 comprising Chapter II; (2) ar"bitration
"'" a
aw;• with the intervention of a court where there is no suit
v.
Union of India. pending provided in section 20 which is a separate
-
Chapter III; and (3) arbitration in suits dealt with in
Jagannadha sections 21 to 25 comprising Chapter IV. The i'irisDas J.
diction as regards the latter two classes of arbitrations
in respect of certain matters is ·provided in the very
provisions relating to those two classes of arbitrations,
that is, section 20, sub-section (1) and section 21.
Sub-section (1) of section 31 appears to refer only to
the first class. It may, therefore, have been, plausibly,
suggested that sub-sections (2), (3) and (4) refer only
to this class. But no such position was taken up
before us. Indeed, having regard to the wide language
employed in these sub-sections it has been assumed
that sub-sections (2) and (3) cover all three classes in
all their stages. If so, is there any sufficient reason to
think that sub-section (4) was meant to have a very
restricted operation ? On the view of this sub-section
suggested for the appellant, not only would an application made after the award was pronounced be excluded
from sub-section (4) but also an application made
before the commencement of the arbitration, i.e., for
the filing of an agreement of reference and for a direction thereupon. It must be remembered that section 31
is one of the group of sections headed " General "
which by virtue of section 26 are applicable to all arbitrations. Unless therefore the wording in sub-section ( 4)
of section 31 is so compelling as to confine the scope
thereof to applications during the pendency of an arbitration, such a limited construction must be rejected.
As already stated, the entire basis of the limited
construction is the meaning of the phrase " in any
reference" used in sub-section (4) as meaning "in the
course of any reference ". But such a connotation
thereof is not in any ordinary sense compelling. The
preposition " in" is used in various contexts and is
capable of conveying various shades of meaning. In
the Oxford English Dictionary one of the shades of
meaning of this preposition is
•
s.c.R.
SUPREME COURT REPOR'rs
893
" Expressing reference or relation to something; in
19o3
reference or regard to; in the case of, in the matter, K ·-
..
ffi ·
·
f
umbha Maw3i
a arr, or provmce o .
v.
Used especially with the sphere or department in Union of India.
relation or reference to which an attribute or quality is
predicated ".
Jaga1madha
In the context of section 31, sub-section (4), it is
reasonable to think that the phrase "in any reference"
means " in the matter of a reference ". The word
"reference" having been defined in the Act as "reference to arbitration", the phrase "in a reference" would
mean "in the matter of a reference to arbitration".
The phrase "in a reference" is, therefore, comprehensive enough to cover also an application first made after
the arbitration is completed and a final awiud is made,
and in our opinion that is the correct construction
thereof in the context.
We are, therefore, of the
opinion that section 31 ( 4) would vest exclusive jurisdiction in the court in which an application for the
filing of ai1 award has been first made under section 14
of the Act.
It is undisputed that the application by the respondent Union of India was made before the Gauhati
court on the 10th August, 1949, and the earliest move
by the appellant before the Calcutta court was on the
17th August, 1949.
On these facts and on the view of
the interpretation of section 31, sub-section (4), which
we are inclined to take, it is clear that the Gauhati
court only has the jurisdiction and not the Calcutta
High Court as regards the present dispute.
In the result, the two appeals must I.Jc dismissed
with costs.
Appeals dismissed.
Agent for the appellant : S1tku1nar Ghose.
Agent for the respondent: 0. 11. Rajadhyakslw.
DasJ.