P.K. Mani vs P.J. Mathai and Others

Vaidialingam, J.—In this petition Mr. T. S. Krishnamoorthy Iyer, learned counsel for the petitioner who was the respondent in C. R. P. 26/64, asks for a certificate being issued by this court to enable him to challenge the decision of this court on appeal to the Supreme Court. In the application itself the prayer is to the effect that the certificate may he granted under Article 133(1)(b) & (c) of the Constitution.

The petitioner made an application to the learned Subordinate Judge, Ernakulam, for appointment of an arbitrator u/s 8(1)(a) of the Arbitration Act on the ground that the other partners with whom he was carrying on business in partnership have failed concur with the appointment of an arbitrator.

The application filed by this petitioner no doubt, was opposed by the respondents on the ground that Section 8(1)(a) has no application in view of the provisions contained in Clause 17 of the agreement entered into by the partners. The learned Subordinate Judge however, accepted the claim of the petitioner and appointed an arbitrator u/s 8(1)(a) of the Indian Arbitration Act.

That order was challenged by the respondents in revision in this Court namely. C. R. P. 26/64. This Court, after a consideration of the provisions of the Indian Arbitration Act as well as the provisions contained in clause 17 of tho partnership agreement, came to the conclusion that the application filed by the petitioner before the learned Subordinate Judge was not maintainable and as such the order of the learned Subordinate Judge appointing an arbitrator was set aside by this court,

Though in the application tho petitioner has asked for a certificate under Article 133(1) (b) & (c) of the Constitution, during the course of arguments, Mr. T. S. Krishnamoorthy Iyer, learned counsel for the petitioner, has stated that he is resting his application for the issue of a certificate only under clause(c) of Article 133(1) of the Constitution. In view of this representation, it has become unnecessary for us to consider the value of the subject-matter.

According to Mr. T. S. Krishnamoorthy Iyer, the interpretation placed by this Court on Section 8(1)(a) of the Indian Arbitration Act is not correct and that this court should have accepted the views expressed by the learned Judges of the Patna High Court in the decision referred to by us in the judgment. The learned counsel also pointed out that there are no other decisions bearing on this aspect and is consequence this court must grant a certificate on the ground that this is a fit case for leave to appeal to Supreme Court.

Mr. K. V. Surianarayana Iyer, learned counsel appearing for respondents, has raised two contentions namely, that the order which is sought to be challenged before the Supreme Court is not a final order as that expression has been interpreted and as it occurs in Article 133(1) of the Constitution. The further contention that has been taken is that there is absolutely no scope for granting leave under Clause (c) to Article 133(1) of the Constitution. According to Mr. K. V. Suryanarayana Iyer, the application that was filed by the petitioner was only for appointment of an arbitrator and no doubt, this Court has taken a different view. But under no circumstance can it be considered that there is a final order that has been passed in these proceedings because the orders passed by this Court do not of its own force bind or affect any rights of any parties. The request for appointment of an arbitrator is only for the purpose of adjudicating upon the disputes that exist between the partners. That is in short, according to the learned counsel, no rights of parties as such have been adjudicated upon in these proceedings.

No doubt in this connection, the learned counsel referred us to certain decisions wherein the expression ''final order'' has come up for consideration.

Mr. T. S. Krishnamoorthy Iyer, learned counsel for the petitioner urged that the only application that was made by his client before the learned District Judge was for the appointment of an arbitrator and by the order of that court being revised his client''s application stands dismissed ; and there are no further proceedings that are either pending or that have to be still further Continued, Therefore the learned counsel urged that the order passed by this court amounts to a "final order" under Article 133(1) of the Constitution.

In the view that we take that this is not a fit case in respect of which a certificate can be granted under Article 133(1)(c), we do not think it necessary to consider the question as to whether the order which is sought to be appealed against is or is not a final order. If we take this view that this is a fit case for granting a certificate, then the further question that has been raised by Mr. K. V. Surianarayana Iyer, that the order, sought to be appealed against is not a final order, may have to be considered. Because, in such a case, unless we come to the conclusion that this is a final order, no certificate under Clause (c) can be issued.

But as we are satisfied that notwithstanding that we have differed from the views expressed by the Patna High Court and inasmuch as our decision was rendered purely on a construction of Section 8(1)(a) of the Arbitration Act, having due regard to Clause 17 of the partnership agreement, we do not think that this is a fit case for granting a certificate under Article 133(1)(c) of the Constitution. As such the application is dismissed. Parties will bear their own costs.