Delhi High Court
J. Kimatrai And Co. vs K.D. International And Ors. on 23 September, 2004
Equivalent citations: 115 (2004) DLT 205
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This appeal seeks to challenge the judgment dated 30.04.1993 of the Additional District Judge, Delhi in Suit No.84/91 whereby the learned Judge has set aside the award holding that there was no agreement for referring the matter to arbitration and, therefore, the arbitrator had no jurisdiction to proceed with the reference.
2. Nobody appears for the respondent. With the assistance of learned counsel for the appellant, I have gone through the record of the case.
3. Facts of the case are that the appellant/claimant is a partnership concern supplying fabric to the respondent on credit did so vide Bill No.5155 dated 6.10.1989 and 5196 dated 16.10.1989 for a sum of Rs.47,897/50 and Rs.21,101/50 respectively. The payment was to be made by the respondent periodically. However, there was a default and the appellant issued a notice dated 26.2.1990, Exhibit R-1 seeking balance payment of Rs.35,000/-. Since the respondent did not comply with the demand notice the appellant moved the Delhi Hindustani Mercantile Association of which the appellant was a member. The claim was made in accordance with the Bills which stipulated that the fabric was sold subject to the conditions therein, namely, that the disputes shall be referred to the Delhi Hindustani Mercantile Association. Upon a claim being filed with the Delhi Hindustani Mercantile Association, the matter was referred to arbitration. Statement of claim was filed and Shri Subhash Jindal the arbitrator proceeded with the reference by issuing notice to the respondents to appear before him and take part in the proceedings. Respondents did not appear before the arbitrator. The arbitrator awarded a sum of Rs.26,998/75 together with interest of Rs.4,581/- as also expenses. Total being Rs/31,742/-.
4. The aforesaid award was sought to be quashed by the respondents by way of Suit No.84/1991 before the Additional District Judge, Delhi who set aside the same holding that there was no arbitration agreement.
5. It is contended by counsel for the appellant that it was not proper for the court to have gone behind the arbitration proceedings since the award was a non-speaking award and the respondents herein did not participate in the proceedings. He also submits that the court has gone wrong in re-appreciating the evidence on record to arrive at a conclusion that there was no agreement for arbitration.
6. Heard counsel and have gone through the judgment under challenge. It appears to me that the learned Judge while arriving at a conclusion that there was no agreement of arbitration has heavily relied upon copies of the Bills of supply of material to hold that the aforesaid documents were not duly proved before the arbitrator and could not have been taken into consideration by the arbitrator to assume jurisdiction in the matter.
7. I am of the view that the documents, namely, Bills were before the arbitrator and the arbitrator considered the same to arrive at a conclusion that there was an arbitration agreement pursuant to which he entered upon the reference and returned an award, it was not proper for the court to have reappraised the material for itself to arrive at a contrary conclusion. Challenges to a non-speaking award are limited in nature and examination by the court of that award is further restricted to specific circumstances mentioned in the Act. The court could not have gone beyond that.
8. In the present case reference may be had to 2004 AIR SCW 2514, D.D.Sharma Vs. Union of India. In that view of the matter, the judgment of the Additional Sessions Judge dated 30.4.1993 which is based on reappraisal of the material before the Arbitrator cannot be sustained. Accordingly the same is set aside.
9. FAO 204/1993 is allowed and disposed of. No order as to costs.
