J. Belli Gowder vs Joghi Gowder and Another

Viswanatha Sastri, J.—This second appeal has been argued clearly and concisely by Mr. S. Viswanathan for the applt. The suit was for

specific performance of an agreement to convey land to the plaintiff alleged to have been entered into with the defendants. The dispute between the

parties has a long history starting from 1927 when the properties now in suit along with others were conveyed by the plaintiff to the predecessors-

in-title of the defts. Suffice it to say that under Ex. P. 2 dated-5-8-1937 and Ex. P. 3 dated 21-12-1938 there were agreements to reconvey the

plaint A and B schedule lands to the plaintiff for Rs. 100 and Rs. 507-4-0 respectively within two years from the date of the agreements. The

agreements for reconveyance were entered into by the father of defts 1 and 2 in respect of the ""A"" schedule land and by the 1st defendant in

respect of the ""B"" schedule land. The father of defendants 1 and 2 died thereafter and the defts represent his interest. The pltf made certain

payments to the defts amounting to Rs. 300 during the years 1939 to 1942 and alleged that the time for performance of the contracts, Exs. P. 2

and P. 3 had been extended by the defts. Disputes arose between the parties, each side charging the other with default in performance. There was

a panchayat at which it was decided on 3-1-1944 that pltf should pay Rs. 550 to the defts and take a conveyance of the lands. A sum of Rs. 450

was paid by the pltf to the defts on 3-1-1944 the balance having been agreed to be payable at the time of the registration of the sale deed. The

pltf''s case is that he also went into possession of the lands agreed to be conveyed to him. Disputes again arose between the parties and the pltf

filed a complaint of criminal trespass against the defts which was registered as C. C. No. 201 of 1944. Again there was a panchayat whose

decision Ex. P. 7 dated 4-3-1944 was to the effect that defts should convey the ""A"" and ""B"" schedule properties to the pltf on receipt of a further

sum of Rs. 200 and that the criminal case filed by the pltf should be withdrawn. On 6-3-1944 both the parties signed a memorandum Ex. P. 1

compounding the criminal case and agreeing to the acquittal of the accused, the present defts 1 & 2. The pltf called upon the defts to execute the

conveyance by his notice, Ex. P. 9, dated 23-2-1944, but the defts denied that there was a panchayat as alleged by the pltf or that there was any

award of the panchayatdars or any subsequent arrangement obliging them to convey the lands in his favour. Thereupon the pltf filed the present suit

for specific performance which has been decreed by the courts below.

The first point argued by the applt''s learned advocate is that the suit is one to enforce an award given on oral reference or submission to

arbitration and is not maintainable by reason of the provisions of the Arbitration Act, 1940. It is common ground that there was no written

submission to the panchayatdars. Prior to the enactment of the Arbitration Act of 1940 it had been held by this and other H. Cts that there was

nothing in the Arbitration Act of 1899 or in Sec. 89 and schedule 2 of the C. P. C. of 1908 rendering an oral agreement to refer to arbitration

invalid. A parole submission was held to be a legal submission to arbitration and an award passed on an oral reference was held to be valid and

enforceable by a suit though not by the special procedure prescribed by Schedule 2, C. P. C. or the Arbitration Act of 1899. Mathuradas

Maganlal Vs. Maganlal Parbhudas, The question is whether the Arbitration Act of 1940 has superseded the law as laid down in these cases. The

answer is not free from difficulty in view of the uncertain nature of the statutory provisions. The preamble shows that the object of the Act was to

consolidate and amend the law relating to arbitration and it is a legitimate assumption to make that the Act is exhaustive of the law of arbitration in

India. Oral submissions to arbitration and awards passed thereon are not so much as referred to, much less saved by the Act, even though the

decisions referred to above must presumably have been within the knowledge of the draftsman and the legislature. At the same time there is no

provision in the Act that an award on an oral submission would be invalid and unenforceable. Section 2(a) of the Act defines ""Arbitration

agreement"" as a written agreement to submit present or future differences to arbitration, but Section 2(b) defines an ""award"" not as an award on an

arbitration agreement, but as an arbitration award, an expression which prima facie would include an award on an oral submission: Section 47 of

the Act enacts that the provisions of the Act apply ""to all arbitrations and to all proceedings thereunder"". Section 32 of the Act lays down that no

suit shall lie on any ground whatever for a decision upon the existence, effect or validity of an arbitration agreement or award. Section 14(2) of the

Act prescribes the procedure for filing an award in court & it is made a condition of the exercise of the Ct''s power under the section that an

Arbitration agreement"" as denned in Section 2(a) must exist. The question whether it was intended merely to make awards on oral submissions

unenforceable under the procedure of the Arbitration Act or to make them invalid and unenforceable altogether, would depend to a large extent on

whether the Act is exhaustive of the law of arbitration. I am inclined to think that it is. I therefore hold that an award passed on oral submission can

neither be filed and made a rule of Ct under the Act, nor enforced apart from the Act. The same opinion has been expressed in Gauri Singh Vs.

Ramlochan Singh and Others,

In para 7 of the plaint it was alleged that the parties to the suit had agreed to act according to the award of the arbitrators, in other words the

parties had adopted the award as their own consensual agreement and acted upon it. They filed a memorandum, Ex. P. 1 dated 6-3-1944 stating

that in pursuance of the decision of the villagers they were compounding the criminal case 201 of 1944 and that the accused (defts 1 & 2) might be

acquitted. The criminal case could not have been compounded except by the agreement of parties & the award by itself could not have resulted in

a composition of the offence. The offence was compounded two days after the award. There is some evidence, though meagre, to show that the

parties accepted the award and agreed to abide by its terms and acted in pursuance of such agreement. There was an agreement for sufficient

consideration to withdraw the criminal complaint and also to convey the property. Though the case has proceeded on the basis that there was a

reference to arbitration and an award, a scrutiny of the evidence discloses that there was only a self-constituted panchayat of the villagers who

claimed to exercise some sort of disciplinary jurisdiction over the inhabitants of the village and a decision was given by the body of villagers to the

effect that the disputes between the parties should be settled on the lines laid down by them. Indeed the assertion of caste or village autonomy was

carried to such an extent as to impose a fine on the plaintiff for venturing to go to court abandoning the caste forum. It is difficult to say that there

was a reference to arbitration in any legal sense and all that appears is there was an informal decision given by the villagers who claimed exclusive

jurisdiction in themselves to decide disputes arising between the members of the community. The parties to the suit accepted the decision as their

own and to some extent carried it out. In these circumstances the defendants having adopted the decision of the village panchayat and agreed to

carry out its terms, must convey the properties to the plaintiff.

The result is that the decree of the Cts below is correct and this second appeal should be dismissed with costs.

No leave.