Mandi Adampur Marketing Society Ltd vs Ram Sarup

R.N. Mittal, J. (Oral)

This appeal has been filed by the Mandi Adampur Marketing Society Ltd. Mandi Adampur decreeholder against the judgment of the Senior Subordinate Judge, Hissar dated August 16, 1975.

Briefly the facts of the case are that an award for recovery of Rs. 33,288.12 was passed in favour of the decreeholder by the Arbitrator under the Punjab Cooperative Societe Act against Ram Sarup, judgmentdebtor. Decreeholder filed an execution application before the civil Court. The judgmentdebtor filed an objection petition to the effect that the award was a nullity as it had been passed without notice to him. He further stated that consequently it was in executable. The learned executing Court head that no service was effected by the Arbitrator ont he judgmentdebtor before making the award and consequently it was a nullity. It further held that an award which was a naltity could not be executed. It, therefore, dismissed the execution application. The decreeholder has come up in appeal against the order of the Senior Subordinate Judge to this Court.

It is contended by the learned counsel for the appellant that the learned Senior Subordinate Judge has erroneously held that no service was effected on the judgmentdebtor. He has further submitted that a registered A.D. notice was sent to him which was received back undelivered. Thereafter, according to him an advertisement was issued in Vir Arjun. Delhi January 3, 1971. The learned counsel contends that the service by advertisement will be deemed to be proper service on the judgmentdebtor. In the circumstances, according to the learned counsel the award was not a nullity.

I regret my inability to accept the contention. There is no proof on the record to show that proclamation was issued in Vir Arjan, Delhi. The statement of Arbitrator has not been believed by the Court. There are no sufficient reasons to upset this finding of the lower Court. I, therefore, reject this contention of the learned counsel.

Facing with the aforesaid situation, the learned counsel sought to argue that the ratio in Ram Singh v. Gandhar Coop. Society, 1975 P.L.J. 162 : 1984 R.R.R. 415, is not applicable to the present case as in that case admittedly the service of the notice had not been effected by the Arbitrator on the judgmentdebtor. He further submits that in the present case this was a disputed question and the executing Court could not go into the matter.

I am not convinced with this argument of the learned counsel. In Ram Singh''s case (supra) it was observed by Sharma, J., speaking for the Full Bench that the intimation of the date, time and place of hearing the dispute to the parties is an essential preliminary to the Arbitrator assuming jurisdiction to decide the dispute and has to be observed by the Arbitrator. The learned Judge further observed that if he failed to perform this duty, his action was not only to be regarded as procedurally ultra vires, but also without jurisdiction. In that case also the dispute was raised regarding service of the notice by the decreeholder. In my view, the ratio in that case is fully applicable to the present case.

For the aforesaid reasons, in my opinion, the view taken by the executing Court was correct.

The award was passed in 1971. It has been held to be without jurisdiction by the executing Court and the decision has been affirmed by me. The parties have agreed that the matter may be sent to the Assistant Registrar, Hissar, who may either decide the matter himself or refer it to the Arbitrator of hs own choice, who after giving proper opportunity to the parties to lead evience should decide the matter

For the reasons recordd above, I dismiss the appeal with no order as to costs. I, however, direct the parties to appear before the Assistant Registrar, Hissar, on June 7, 1978, who shall either decide the matter himself or refer it to the Arbitrator as indicated above.