1999 PLP 978 (YLR)

‑‑‑‑S. 14‑‑‑Arbitration award, filing of ‑‑ Iqrarnama " between the parties‑‑‑Validity‑‑ Where case was not presented before the arbitrators, and there was no application of mind by such arbitrator to the evidence if any, brought before arbitrator‑‑‑Such "Iqrarnama " was no more than an agreement‑‑‑Application to treat "Iqrarnama as Rule of Court was dismissed in circumstances. A. Wajid Wyne for Applicant. M.G. Dastgir for Respondents. Date of hearing: 18th November, 1998. By order dated 18‑11‑1998 I had dismissed this J.M. for reasons to be recorded. Following are the detailed reasons for the same. This is an application under section 14 of the Arbitration Act, 1940 for filing of the award in Court. The parties to this application are real brothers. One brother, the petitioner is arrayed against three brothers as respondents. The facts leading to the filing of this application are that apparently, the father of the parties, namely, Haji Syed Khairuddin decided that his assets should be divided amongst his four sons during his life‑time. He, therefore, organized a meeting of all his sons alongwith two other persons, namely, Syed Haji Syed Bismillah and Syed Tajuddin who were called the Arbitrators by the applicant. In the presence of so‑called arbitrators an agreement, which is in Urdu and is called "Iqrarnama" was entered into whereby it was agreed between the parties to divide the assets of Haji Syed Khairuddin amongst his four sons, the parties in this Suit. This agreement "Iqrarnama" is, dated 11‑7‑1997. It seems that respondent brothers did not fulfill the terms of the said Iqrarnama leading to the petitioner requesting the said so‑called arbitrators to file the award as it is termed and in fact Iqrarnama, in Court. But the said so‑called arbitrators declined to do so. The petitioner has, therefore, filed this application seeking directions from this Court to the said arbitrator to file the award as it is termed. In so far as the respondents are concerned, they maintain that they have not violated the terms of Iqrarnama and if there has been any violation it is by the applicant. An examination of the record of the case brings before two points. Firstly, whether such application under section 14 of the Arbitration Act can be made by a party to the alleged award, secondly, whether the documents which is sought to be filed in Court is an award or not. As far as the first point is concerned, it may be appropriate to reproduce section 14 of the Arbitration Act, 1940. "

14. Award to be made and filed.‑‑‑ (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award. (2) The arbitrator or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any deposition and document which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. (3) Where the arbitrator or umpire state a special case under clause (b) of section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to and shall form part of the award. " A plain reading of this section would show that arbitrator or umpire shall cause the award to be filed in Court at the request of a party to arbitration agreement or any person claiming under such party or if so directed by the Court. It is, therefore, clear that it is only the arbitrator or the umpire who can file the award, or the Court can direct that an award to be filed. It is true that the arbitrator will file the award at the request of the party to arbitration. But would that mean that the party to arbitration himself cannot file the award? I find that under rules framed by the Lahore High Court an award can be filed in Court not only by the arbitrator but also by any of the parties to the award. Nevertheless, true construction of Article 14 of the Arbitration Act would be that it is only the arbitrator or the Umpire who can file award. But in case a request by the party to the arbitration agreement is made to the arbitrator to file the award and the arbitrator does not, then in that event the other option given by this section that Court may direct for the award to be filed, will come into play. Consequently, if the arbitrators refuse or decline to file the award then any party to the arbitration agreement would be entitled to file an application under section 14 of the Arbitration Act seeking direction to the arbitrator or the umpire that award be filed. Now in this case, the relief that is sought by the petitioner is not that the award be made rule of the Court but that the arbitrators be directed to file the award and to that extent I. think it is in accord with the proper construction of this section 14, Arbitration Act. The second point to be considered is whether Iqrarnama that has been referred to in this case, was an arbitration award within the meaning assigned to it under Arbitration Act. Now section 2 of the Arbitration Act which contains the definitions, defines "award" to mean "an Arbitration Award". It would, therefore, mean that award contemplated under the Arbitration Act is an award which is given following an arbitration. Consequently, if a decision or an award is given following certain negotiations or mediation or consultation then it would not be an award under the provision of Arbitration Act. As to what is arbitration, it has not been defined in the Act. Nevertheless, by now it is well‑established that an arbitration is resorted to only when there are differences between the parties to arbitration agreement and secondly, that an Arbitration is a judicial determination of the differences between the parties. By saying that it should be a judicial determination means that established principles of judicial determination must be observed that is, there must be a controversy, there must be presentation of the case from both sides, if necessary evidence must be brought on record and then there should be an application of mind by the arbitrator and a reasoned award must follow. To my mind, these are necessary ingredients for an arbitration. Now looking at the Iqrarnama which is sought to be filed in Court through arbitrators, I find that by no stretch of imagination can it be regarded as an award arising from an arbitration. All that has happened here is that an anxious father perhaps conscious of the differences amongst his children or aware of their idiosyncrasies decided that the matter of division of the properties must be decided during his life time. To add certain authority to it, he managed to acquire services of two individuals presumably who were trusted by all children and in that meeting they agreed to certain proposals which were reduced to writing and signed by the parties. At best it could be termed as an agreement between the children witnessed arid overseen by those gentlemen. There is obviously no controversy that is sought to be resolved. There was also no presentation of the case of the children before the two alleged arbitrators and there was no application of mind by these arbitrators to the evidence, if any, brought before them. This Iqrarnama, therefore to my mind was no more than an agreement. Consequently, the correct remedy for the petitioner would be to initiate proceedings for the enforcement of the agreement rather than to treat the Iqrarnama as an award and have it made a Rule of the Court. I, therefore, find no merit in this application and accordingly it is dismissed. Q.M.H./M.A.K./Z‑48/K