P L D 1967 Dacca 603 (PLP)

Section 47 of the Arbitration Act, which prima facie governs reference to arbitration between the parties in a pending suit without the intervention of the Court reads:‑ "47. Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into con?sideration as a compromise or adjustment of a suit by any Court before which the suit is pending." Under the proviso an arbitration award obtained otherwise than in proceedings taken in accordance with the tact cannot without something more be regarded as a compromise or adjustment of the suit. That something more is the consent of the parties interested to the award being taken into consideration as a compromise or adjustment of the suit by the Court before which the suit is pending. It is well‑settled that where the parties to a pending suit proceed to arbitration without any reference by the Court the arbitration is not under the provisions of the Arbitra?tion Act and an award obtained in such an arbitration cannot be enforced under those provisions. Proviso to section 47 applies to such awards, i.e. awards obtained otherwise than under the provisions of the Act and empowers the Court to take the same into consideration subject to the requirement of consent of the parties to their being taken into consideration. It has thus been laid down in Zeauddin and others v. Abdur Rafique and others relied upon by Mr. Banik:‑ "Where the parties to a suit have referred the matters in dispute between them to arbitration without the intervention of the Court and award has been made, then either party to the suit may insist on his right to have the suit tried out. The Court has no jurisdiction to treat an award as an adjustment of the suit and to record it unless all the parties have consented in Court to the matters in disputes between them being referred to arbitration and to be bound by any award may be passed." This has been stated in clearer terms in the other authority cited by the learned Advocate, namely, Jugaldas Damodar & Co. v. Pursottam Umedbai & Co. Therein the relevant proposition has been enunciated in these terms: "The proviso to section 47 applies to all arbitration awards obtained otherwise than under the provisions of the Act and enables the consideration of the award as a compromise or adjustment of the suit with the consent of all the parties interested, by the Court before which the suit is pending and by no other Court. Consent of the parties to the submission is not sufficient if there are other parties interested. The joint consent of all parties interested is necessary at the point of time when the Court is to take the award into consideration as a compro?mise or adjustment. Antecedent consent is immaterial just as antecedent invalidity does not debar the Court from recognising it as compromise by common consent. The proviso does not render the award valid nor does it make it enforceable as an award pro piro vigore. The proviso enables the recognition of the award for a limited purpose by consent. Where such consent is withheld, it cannot be recognised even for that limited purpose." It is thus clear from the relevant provision as well as the authorities to which reference has already been made above that the sine qua non of a Court taking into consideration an award in an arbitration without the intervention of the Court is the consent of all the parties interested to the award being taken into consideration as a compromise or adjustment of the suit by the Court. It has already been indicated that the solenamah filed in Title Suit No. 2 of 1958 between the husband of the present petitioner on one hand and the opposite‑party and others on the other, provided that after preparation of a sketch map by the arbitrators a rafanamah would be filed in Title Suit No. 41 of 1958 as well. From this the learned Advocate for the opposite‑party wants to argue that reference in this case, though without the intervention of the Court, was made by the parties within its knowledge or rather with notice to it. It has therefore been contended that intimation thus given to the Court amounted to consent on their part to the award, if and when made, being taken into consideration by the Court. Reliance in this behalf has been placed upon Arumugha Mudallar v. Y. S. v. Bala Subramania Mudaliar wherein it was observed: "There is nothing in the proviso which precludes antecedent consent." This view has not, however, been accepted by any other High Court. The consensus of opinion is to the contrary, i.e. that consent of the parties is necessary at the point of time when the Court is taking the award into considera?tion. It may be interesting to refer here to Jugal Das Damodar & Co. v. Pursottam Umedbhai & Co. and quote therefrom the following. "I am aware that my opinion clashes with the observations in Aramugha v. Balasubramania', and also with some of the observations in A I R 1950 Orissa 169 at p. 180. Those observations are based upon principles and concepts which were never recognised as sound by our Court." ??????????? It may as well be noted that in the Madras case, referred to above, the parties had, in Court, consented to the matters in dispute between them being referred to an arbitrator and had also agreed to be bound by any award that might be passed by him but in the instant case before me no intimation was given to the Court of any intended or proposed arbitration in the relevant suit itself, i.e., Title Suit No. 41 of 1958 between the present parties themselves and that the present petitioner was not a party to the suit in which the above‑mentioned solenamah was filed, to wit, Title Suit No. 2 of 1958. Regard being had to these facts, it cannot, to my mind, be said that reference to the disputed arbitration was made with notice to the learned Court concerned. Furthermore the parties, too, cannot be said to have bound themselves to abide by the award that might be passed. For the reasons indicated above, I am of opinion that the decision of the learned Courts below recording the award under Order XXIII, rule 3 of the Code of Civil Procedure is contrary to law and cannot be sustained. The Rule is accordingly made absolute. The impugned order passed by the learned Courts below directing the disputed award to be recorded as under Order XXIII, rule 3 is set aside and it is directed that the suit be proceeded with and disposed of in accordance with the law. Having regard to the circumstances of the case, I, however, leave the parties to bear their own costs. K. B. A. Rule made absolute.