IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRP.No. 2793 of 2000(D) ----------------------- {O.P.(ARBN) NO.68/94 ON THE FILE OF THE III ADDITIONAL SUB JUDGE, ERNAKULAM} REVN. PETITIONER(S): ------------------------- THE SENIOR DIVISIONAL MANAGER, COCHIN DIVISIONAL OFFICE, BHARATH PETROLEUM CORPORATION LTD., KOCHI - 68 2 031. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): ------------------- 1. A. SAGARAN, KAVUMCHERI BUNGALOW, KANDALLOOR (S) P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. 2. RAM PAT GARG, BUNGALOW 5, B.P.C.L. STAFF COLONY, AZIZ BAUG, CHEMBUR, BOMBAY - 400 074. {CRP STANDS DISMISSED AS AGAINST R2 AS PER ORDER DATED 9.7.08} ADV. SRI.K.L.VARGHESE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON 29/01/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------------ C.R.P.No.2793 of 2000 ----------------------------------------------- Dated this the 29th day of January, 2010 O R D E R This revision is directed against the judgment dated 31.3.2000 in O.P.(Arbitration)No.68/94 passed by the IIIrd Additional Sub Judge, Ernakulam. 2. The first respondent was appointed as a Distributor of Liquefied Petroleum Gas by the petitioner-Bharath Petroleum Corporation on the terms of an agreement executed by the parties. The agreement provided for reference to arbitration in the event of disputes and differences over the execution, discharge etc. of the terms therein. Disputes arose between the parties. It was referred to arbitration, and the arbitrator, after hearing both sides, passed an award. That award was challenged by the 1st respondent filing an application under Section 30 of the Arbitration Act, 1940 {for short “the Act”}, imputing misconduct against the arbitrator. That application was dismissed for default. The petitioner had applied for making a decree of the award, moving an application under Section 17 of the Act. On C.R.P.No.2793 of 2000 :: 2 :: the basis of the objections raised by the 1st respondent that the arbitrator failed to answer one among the questions raised for consideration, the learned Sub Judge passed the impugned order, remitting the award for answering the point of reference which remained unanswered by the arbitrator. Propriety and correctness of that order is challenged in this revision. 3. I heard learned counsel on both sides. A preliminary objection was canvassed by the learned counsel for the 1st respondent, that the revision is not maintainable, as against an order passed by the court remitting the award. I do not find any merit in that objection. Section 39 of the Act enumerates the orders of the court from which an appeal is entertainable. An order passed by a court remitting an award is not one covered by the orders enumerated from which an appeal is provided under the above Section. When that be so, it cannot be contended that the impugned order, if it is otherwise amenable to the revisional jurisdiction of this court on any of the grounds covered by Section 115 of the Code Civil Procedure cannot be entertained and C.R.P.No.2793 of 2000 :: 3 :: disposed of in accordance with law. I find, the revision challenging the order of remand passed by the court is perfectly maintainable. 4. Indisputably, the arbitrator declined to consider one among the points referred for determination holding that he has no jurisdiction to entertain that question. Among the questions referred to the arbitrator, one of them related to the question of regularising cylinders and pressure regulators by the Civil Supplied Corporation, not a party to the arbitration proceedings, and in examining that question, the arbitrator declined to consider it, holding that he has no jurisdiction over that matter, as it was one which was not covered by the agreement between the parties. Specific question referred to as 'E' under the terms of reference was “How many cylinders and DPRs of of claimant are supplied by Civil Supplies Corporation?”. Admittedly, the Civil Supplies Corporation was not a party to the agreement entered into between the parties and more so, not a party to the arbitration proceedings as well. The decision of the arbitrator C.R.P.No.2793 of 2000 :: 4 :: not to go into that question on the ground that he lacked jurisdiction to do so, is seen canvassed as an objection by the 1st respondent to remit the award for fresh consideration by the arbitrator. Upholding the objection, the learned Sub Judge has passed the impugned order. 5. Learned counsel for the 1st respondent strenuously endeavoured to sustain that order contending that there is nothing improper or illegal in the order of remand passed by the learned Sub Judge, as the determination of that point of dispute in question has decisive effect on other points which had been referred for determination by the arbitrator. A number of authorities has been pressed into service before me by the learned counsel that interference with the order, of remand in exercise of revisional jurisdiction, in the given facts of the case, is not called for. I find that the decisions relied by the counsel have no application to the facts of the case and so much so, reference to each one of them is not required. Considerable emphasis was laid by the counsel in a judicial pronouncement C.R.P.No.2793 of 2000 :: 5 :: rendered by a Division Bench of this court to impress me that the challenge canvassed against the remand of the award ordered by the court below has to fail. The decision relied by the counsel, 'P.Mulji and Sons, Africa v. Kerala Produce Exporting Co.' {AIR 1976 Kerala 3), in fact runs counter to the argument canvassed by the counsel. In the above decision, it has been held thus: “The suo motu power of the court to invalidate the award can be exercised only if there is any patent illegality or voidness or the award directs, a party to do an act which is prohibited by law. If this illegality is not patent and requires an enquiry to find that out the Court may not be justified in exercising its suo moto jurisdiction.” 6. There is no dispute that the award covered by the proceedings is a non-speaking award. It is also not disputed that an application moved by the 1st respondent for setting aside the award had been dismissed for default. When an application has been filed setting aside an award, imputing misconduct against the arbitrator under Section 30 of the Act, it is needless to point out that if such an applicant has any case for remission of the C.R.P.No.2793 of 2000 :: 6 :: award as covered under Section 16 of the Act, necessarily and inevitably, that case has also to be pleaded in such application. Dismissal of the application moved by the 1st respondent for setting aside the award, whether on default or on merit, in effect, bars the 1st respondent from canvassing any ground to impeach the award, either on the ground of misconduct of the arbitrator or any of the grounds for remitting the award under Section 16 of the Act. No doubt, even in such a case, the court, before which an award is filed for passing a decree in terms of the award, can suo motu consider whether the award suffers from any infirmity requiring its intervention either under Section 15 or 16 of the Act. Section 16 of the Act deals with the power of the court to remit an award. In the present case, I am only concerned with the situation covered under Sub-Clause (a) of section 16 of the Act. Section 16(a) of the Act reads thus: “Where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred to;” C.R.P.No.2793 of 2000 :: 7 :: In the present case it is not a case of leaving out any of the points referred by the parties for determination, but a decision by the arbitrator that one among the points canvassed by them cannot be gone into, in view of his lack of jurisdiction to adjudicate such a question relating to a third party, not a party to the agreement and also to the arbitration proceedings. 'Is it open to the court, which is called upon to pass a decree in terms of the award, to decide the correctness of the decision rendered by the arbitrator, that he lacks jurisdiction to answer one among the points referred to him for arbitration', is the question emerging for consideration. 7. In the context, the decision in P.Mulji and Sons, Africa v. Kerala Produce Exporting Co. {AIR 1976 Kerala 3) applies with full force, and I hold that the court in which the award is filed cannot exercise its suo motu jurisdiction to conduct an enquiry to find out whether there is any illegality or impropriety in the decision rendered by the arbitrator. It can interfere with such an award in exercise of suo motu jurisdiction C.R.P.No.2793 of 2000 :: 8 :: only if the illegality is patent and no enquiry thereof is warranted, to enter a finding on such illegality. Application moved by the first respondent for setting aside the award having been dismissed, that respondent was estopped from canvassing an objection for remitting the award, and the learned Sub Judge went wrong in entertaining further objection challenging the award by that respondent. The impugned order of remand though proceeded on the basis of objection canvassed by the respondent in effect can only be treated as having been passed by the court in exercise of its suo motu jurisdiction, after an application moved for setting aside the award stood dismissed for default. The court below lacked jurisdiction to enquire into the correctness of the decision taken on point 'E' by the arbitrator when there was no patent illegality in that decision incorporated in the non speaking award. 8. The impugned order passed by the learned Sub Judge remitting the award to the arbitrator holding that he should answer the question “E” also referred to arbitration and pass a C.R.P.No.2793 of 2000 :: 9 :: fresh award is not only irregular, but improper and, in excess of the jurisdiction not provided by the provisions of the Act. The impugned order is liable to be set aside and I do so. The court below is directed to take back the case on file and pass a decree on the award filed, in accordance with law. Civil Revision Petition is disposed of as indicated above. Sd/- S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy// P.S. to Judge.