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PETITIONER:

KUMBHA MAWJI

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT:

16/04/1953

BENCH:

JAGANNADHADAS, B.

BENCH:

JAGANNADHADAS, B.

MAHAJAN, MEHR CHAND

BOSE, VIVIAN

CITATION:

1953 AIR 313 1953 SCR 878

CITATOR INFO :

E 1970 SC 189 (5)

E 1981 SC2075 (22)

ACT:

Indian Arbitration Act (II of 1940), ss. 14 (2), 31 (3) and

(4) --Filing of award--Umpire handing over award to

parties--Filing in Court by party--Necessity of

authorisation of arbitrator, or umpire--Award filed in two

Courts--Exclusive jurisdiction of Court in which award was

filed earlier--Filing award after arbitration is

complete--Applicability of s. 31(4) ---In a reference",

meaning of.

HEADNOTE:

The mere filing of award in Court by a party to it without

the authority of the arbitrator or umpire is not a

sufficient compliance with the terms of s. 14 of the Indian

Arbitration Act, 1940, nor can it be inferred from the mere

handing over of the original award by the umpire to both the

parties that be authorised them to file the same in Court on

his behalf ; that authority has to be specifically alleged

and proved.

The phrase "in a reference" in s. 31, sub-s. (4), of the

Indian Arbitration Act, 1940, is comprehensive enough to

cover an application first made after the arbitration is

completed and a final award made, and the sub-section vests

exclusive jurisdiction in the Court in which an application

for filing an award has been first made under s. 14 of the

Act.

The respondent who was a party to an award filed an applica-

tion before the Subordinate Judge of Gauhati under s. 14 (2)

of the Indian Arbitration Act, on the 10th August, 1949,

praying that the umpire may be directed to file the award in

Court and upon this notice was issued to the umpire to file

the award in Court before 24th August, 1949. As the

original award had been handed over to the parties, the

umpire sent by post on the 18th August, 1949, a copy of the

award signed by him. The Court directed the respondent to

file the original award in Court and he did so on the 3rd

September, 1949. Meanwhile the appellant's solicitors sent

to the Registrar of the Calcutta High Court Original Side,

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on the 17th August, 1949, the original award for being filed

in Court and the award was filed on the 29th August:

Held, that, as the umpire had, on the direction of the Sub-

ordinate Judge of Gauhati sent a copy of the award signed.by

him to the Court on the 18th August, 1949, the earlier

filing for the purposes of s. 31(3) of the Arbitration Act

was in the Gauhati Court and not in the Calcutta High Court,

though the original award was filed by the respondent in the

Gauhati Court only after the appellant's solicitor had sent

the award for filing to the

879

Calcutta High Court. In the circumstances the Gauhati Court

alone had jurisdiction to proceed with the hearing of the

dispute under s. 31 of the Act.

Judgment of the Calcutta. High Court affirmed.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 133 and

134 of 1952.

Appeals from the Judgment and Decree dated the 23rd

February, 1951, of the High Court of Judicature at Calcutta

(Harries C.J. and Bannerjee J.) in Appeal No. 44 of 1950

arising out of the Judgment and Decree dated the 16th day of

December, 1949, of the said High Court (Sinha J.) in its

Ordinary Original Civil Jurisdiction in Award Case No. 208

of 1949.

N. C. Chatterjee (Amiya Kumar Mukherjea, with him) for

the appellant.

C. K. Daphtary, Solicitor-General for India (G. N. Joshi

and Jindra Lal, with him) for the respondent.

1953. April 16. The Judgment of the Court was delivered by

JAGANNADHA DAS J.-On the 28th of January, 1948, the

appellant, Khumba Mawji, entered into an agreement with the

respondent, the Dominion of India (as it then was) to

manufacture and supply, to the Bengal Assam Railway, stone

boulders and ballast from Chutiapara quarry. The agreement

was entered into at Calcutta, though the work was to be

carried out in Assam. It was a term of the agreement that

if any differences arose between the parties, they were to

be referred to the arbitration of two persons, one to be

nominated by each side, and that if the arbitrators were not

able to agree, the matter was to be decided by an umpire to

be nominated by both the arbitrators. Differences having,

in fact, arisen, the dispute was referred to two arbitrators

and on their disagreement the matter went up to an umpire,

one Mr. P. C. Chowdhury. The umpire made two awards on or

about the 20th of July, 1949, in favour of the appellant.

By one of them he directed a sum of Rs. 3,67,000 to be paid

by the respondent to the

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appellant on or before the 19th of August, 1949, with

interest thereafter at 6 per cent per annum in case of

default. By the other he directed a sum of Rs. 83,000 to be

similarly paid by the respondent to the appellant. He is

said to have made over each of the two awards, in original,

to each of the parties. On the 10th of August, 1949, the

respondent filed an application under section 14, sub-

section (2), of the Indian Arbitration Act, 1940, before the

court of the Subordinate Judge of Gauhati in Assam praying

that the umpire, Mr. Chowdhury, might be directed to file

both the awards in court so that the petitioner might get an

opportunity for filing objections thereto. On this

application notice was issued to the umpire to file the

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awards into that court before the 24th of August 1949. The

umpire sent a letter dated 18th August, 1949, to the

Subordinate Judge, which is as follows with copies of the

awards:-

"Dear Sir,

With reference to your notice in money suit No. 63 of 1949

requiring me to submit the awards made by me in the above

mentioned dispute on 20th July, 1949, I beg to submit that

the two awards were made and signed by me in -the presence

of the parties and handed over to me on 20th July, 1949. As

directed by you I am sending herewith copies of the same

signed by me. On the back of each of these copies occurs

the receipt of the parties to the awards."

On receipt thereof, the Subordinate Judge made an order on

24th August, 1949, in the following terms :-

"Notice on the umpire served. Seen his report forwarding

copies of the award of which the originals are said to have

been made over to the parties. Applicant to file his copy

on 3rd September, 1949".

On the 3rd of September, 1949, the respondent filed the

awards which were handed over to it by the umpire, and the

matter was being proceeded with by issue of further notices

and filing of objections in the court of the Subordinate

Judge, Gauhati.

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Meanwhile on the 17th of August 1949, i.e., a week after the

respondent made its first application in the Gauhati court,

the appellant's solicitors, Messrs. Mukherjee and Biswas,

sent a letter to the Registrar of the High Court, Original

Side, as follows:

" On behalf of our client Mr. Kumbha Mowjee we beg to

enclose herewith two original Awards duly stamped and both

dated, 20th July, 1949, for the respective sums of Rs.

3,67,000 and Rs. 83,000 duly signed by the Umpire Mr. P. C.

Chaudhury for filing.

Please therefore direct the office to file the said two

Awards and to issue notices in respect thereof expedi-

tiously."

After some correspondence between the Deputy Registrar and

the solicitors calling for some further papers, the Deputy

Registrar informed the solicitors by his letter dated the

29th August, 1949, that the award had been filed and asked

the solicitors to take out from the court and serve on the

parties concerned the statutory notice fixing a date for

judgment upon the said award by the Commercial Judge of the

court. Notices were thereupon issued to both the parties in

the following terms:

"To

1. Kumbha Mawji.

2. The Dominion of India represented by the Assam Railway.

Take notice that the Award of the Umpire appointed in the

matter of the above Arbitration Agreement had been,filed on

the 29th day of August, 1949, and that the Court hearing the

commercial causes will proceed to pronounce judgment on such

award on 7th day of November, 1949.

Dated the 29th day of August, 1949."

This notice was served on the respondent on the 2nd of

September, 1949. Thus in respect of these awards,

proceedings were initiated purporting to be under section 14

(2) of the Indian Arbitration Act simultaneously both in the

court of the Subordinate Judge

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882

of Gauhati in Assam as well as on the Original Side of the

High Court at Calcutta.

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The appellant in answer to the notice issued by the Gauhati

court on 3rd September, 1949, appeared before that court on

28th October, 1949, and obtained adjournments from time to

time until 10th December, 1949. On that date the Gauhati

court rejected his prayer for any further adjournment and

fixed 20th January,' 1950, for an ex parte hearing.

Meanwhile, the respondent after receiving the notice issued

to him by the Calcutta High Court filed, on the 24th of

November, 1949, an affidavit dated the 15th of November,

1949, stating his objections to the jurisdiction of the

Calcutta Court and to the validity of the awards. On the

same date a counter affidavit thereto dated the 19th of

November, 1949, was filed on behalf of the appellant. On

these affidavits the matter was taken up for consideration

by the Commercial Judge of the Calcutta High Court on the

16th of -December, 1949. The learned Judge overruled the

objections of the respondent, and passed judgment on the two

awards. On appeal therefrom by the respondent to the

Division Bench, the learned Judges reversed the judgment of

the single Judge. They held that there had been no proper

application under section 14(2) of the Indian Arbitration

Act, before the High Court of Calcutta, and that

consequently that Court had no jurisdiction to deal with the

matter.

Before the learned single Judge of the High Court the main

objection taken and set out in paragraph 14 of the

respondent's affidavit dated the 15th of November 1949 was

as follows:

" I submit further that inasmuch as the application of the

Dominion of India under section 14 (2) of the Indian

Arbitration Act was made as aforesaid to the said Court at

Gauhati before the award was filed in this Hon'ble Court by

Kumbha Mawji, the Court at Gauhati alone has jurisdiction."

Under section 31 (1) of the Indian Arbitration Act an award

may woe filed in any court having jurisdiction in the matter

to which the reference relates. The

883

reference in this case arose out of a contract which, as

already stated, was entered into at Calcutta and had to be

performed in Assam. Thus the Gauhati court as well as the

Calcutta High Court admittedly had jurisdiction over the

subject-matter of the reference. The point taken, however,

on behalf of the respondent in their objections was that,

having regard to section 31, sub-section (4) of the Act and

to the fact that an application under section 14, sub-

section (2) for a direction to the umpire to file the award

was made to the Gauhati court as early as the 10th August,

that court was seized of the matter from that date, and that

therefore any application under section 14 OD a later date

to another court, though otherwise competent, was barred

under section 31, sub-section (4). This was the main

question that was seriously pressed before the learned

single Judge. But the learned Judge was of the opinion that

section 31 (4) related only to applications made during the

pendency of a reference to arbitration and not to

applications made subsequent to the making of an award. He

thought that in respect of applications for filing an award

the exclusive jurisdiction was determined with reference to

the question as to which was the competent court in which

the award was, in fact, first filed under section 14, sub-

section (2) (as distinct from when the application for the

filing of the award was first presented). In this view, the

learned Judge held on the facts that the award must be taken

to have been filed earlier in the Calcutta court and not in

the Gauhati court. He accordingly held that the Calcutta

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High Court had exclusive jurisdiction having regard to

section 31 (3), and hence proceeded to judgement on the

award, the respondent not having filed any objections before

him in time.

On appeal, the learned Judges considered it unnecessary for

them to dispose of the case on either of the above grounds

considered by the single Judge, and held that on the facts

it was quite clear that there had been no due filing of the

award at all in the Calcutta court under section 14 (2)

inasmuch as the awards

884

which were claimed to have been duly filed were, in

fact,not filed by the umpire; nor was it shown that they

were filed under his authority. On this limited ground they

reversed the decision of the learned single Judge and

vacated the judgment given in favour of the appellant on

the basis of the two awards. Hence these two appeals to us.

On the, facts stated above three questions arise for

consideration:

(1) Whether the appellant had the authority of the umpire

to file the awards on his behalf into court in terms of

section 14 (2) of the Arbitration Act ;

(2) Whether in view of subsection (3) of section 31 of the

Act it can be said that the awards were filed in the

Calcutta High Court earlier than in the Gauhati court; and

(3) Whether the scope of section 31, sub-section (4) of the

Act is limited to applications under the Act during the

pendency of the arbitration proceedings only.

As regards the first question, section 14, sub-section (2)

provides that,

" the arbitrators 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 depositions or documents 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."

This section clearly implies that where the award or a

signed copy thereof is in fact filed into court by a party

he should have the authority of the umpire for doing so.

This is, at any rate, the assumption on which the question

has been dealt with in the High Court, and it has not been

contended before us that the filing of the award into court

by a party himself

885

though without the authority of the umpire to do so on his

behalf, is sufficient compliance with the terms of this

section. The learned Judges of the High Court were of the

opinion that the authority of the umpire empowering the

appellant to file the original awards into Court on his

behalf has not been made out on the evidence in the case.

The argument stressed before us is that in para 7 of the

affidavit dated the 19th of November, 1949, filed on behalf

of the appellant in the High Court on the 24th of November,

1949, it is stated that " On or about the 21st July, 1949,

the said Umpire made over the said original award to this

deponent for filing." It is urged that this is an averment

of the requisite authority from the umpire, and it is point-

ed out that this assertion has not been contradicted on the

other side by any reply affidavit. It is contended

therefore that the filing was valid. The learned Judges in

coming to the contrary conclusion relied on two facts,

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namely, that the umpire in his letter to the Gauhati court

dated 18th August, 1949, when sending copies of the awards

in compliance with the notice issued to him by that court

merely stated that he handed over the awards to both the

parties, but did not say that he authorised any of them to

file the same into court on his behalf. The learned Judges

were also of the opinion that the umpire as a person of

commonsense could not be supposed to have authorised both

the parties to file the awards into Court on his behalf. We

are inclined to agree with this reasoning. Where, as in

this case, the originals are said to have been handed over

to both the parties, it cannot be assumed that the mere

handing over of the awards to the parties necessarily im-

plies the authority of the umpire to file the same into

court on his behalf. That authority has to be specifically

alleged and proved. In the present case the statement in

the affidavit relied on by learned counsel before us is no

more than ail assertion that the umpire handed over the

original awards to the appellant for filing, but there is no

allegation that they were so handed over to him for filing

on behalf of the umpire.

886

The umpire may not have been aware that the awards should be

filed into court only by himself or under his authority.

Learned counsel for the appellant urged that the question of

the authorisation of the umpire for the filing of the award

by the appellant was one that was not raised at all as an

objection before the learned single Judge of the High Court,

and that such an objection should not have been taken notice

of for the first time on appeal. It is no doubt true that

neither the affidavit filed on behalf of the respondent nor

the judgment of the learned single Judge gives any indica-

tion of this question having been raised in the first

court,. Indeed, the learned Judges on appeal recognise it

when they say towards the concluding portion of their

judgment as follows:

" It does not appear that the point on which the appeal

succeeds was argued in the court below. But it is a point

of law and no objection was taken before us by the

respondent to the appellant taking the point before us ".

Though it is somewhat difficult to see how the question

raised can be said to be a pure question of law, it is quite

clear from the above extract that no objection was taken by

the respondent to the point being raised. It has not been

suggested before us that this statement in the judgment was

in any way erroneous. Appellant's counsel argued that if

the learned Judges on appeal felt inclined to dispose of the

case on this point alone, they should have called upon the

umpire to clarify whether or not the appellant had his

authority, or given an opportunity for production of his

affidavit in support of the authority. Learned counsel

presses that an. opportunity should now be allowed. It does

not appear, however that it is either necessary or desirable

at this stage and after this lapse of time to allow this

matter to go back for that purpose. Because, apart from the

question of mere want of proof of authority, it is clear

that in a case of this kind and on the facts above stated,

it was

887

incumbent on the appellant to allege categorically that, in

terms of sub-section (2) of section 4, he had the requisite

authority of the umpire. That allegation is wanting not

only -in the affidavit dated the 19th of November, 1949, but

what is more important is that when the awards were filed

into court on the 17th of August, 1949, by the solicitors on

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behalf of the appellant with a letter which might be treated

as the initial application to the court, there is not a word

to suggest that the awards were being filed under the

authority of the umpire. The letter contained only a bald

statement that the two original awards duly signed by the

umpire were enclosed therewith for filing, with a request to

direct the office to file the two awards and to issue

notices in respect thereof expeditiously. In those

circumstances, there has been clearly no sufficient

compliance with the terms of section 14, sub-section (2) of

the Act to constitute the filing of the awards by the

appellant's solicitors the filing thereof by the umpire.

As regards the second question, namely, as to whether with

reference to the terms of section 31, subsection (3) the

awards should be held to have been filed earlier in the

Calcutta court -or in the Gauhati court, the view taken by

the learned Commercial Judge was that the filing in the

Calcutta court must be taken to have been earlier. For the

purpose of the consideration of this question it may be

assumed that filing was under the authority of the umpire.

The learned Judge was of the opinion that the filing of the

awards in the Gauhati court must be taken to have been made

on the 3rd September when in pursuance of the prior order of

the Subordinate Judge dated 24th August, 1949, the present

respondent filed into court the original awards with him.

In coming to this conclusion the learned Judge ignored the

fact that on 18th August, 1949, the umpire in response to

the notice previously issued to him forwarded to the

court signed copies of the awards and that the same were in

that court on or before 24th August, 1949. This seems, in

terms, to

888

be sufficient compliance with the provisions- of section 14,

sub-section (2) which only requires that on the directions

of the court the original award or the copy thereof should

be caused by the umpire to be filed into it. The learned

Judge stated that he was not aware whether the copies sent

to the Subordinate Judge were signed copies or not. The

learned Judge failed unfortunately to notice that the umpire

himself in his letter dated 18th August, 1949, stated

clearly as follows:

"As directed by you I am sending herewith copies of the same

(awards) signed by me".

The learned Judge was also inclined to think that the mere

forwarding of the awards does not amount to the filing of

them. Here again, the learned Judge has overlooked that

under section 14, sub-section (2) the actual filing by the

umpire is not essential, but that it is sufficient if the

umpire causes the awards to be filed. It is not suggested

that sending by post in compliance with the notice is not

such "causing".

It appears to us therefore clear that the filing of the

awards in the Gauhati court must be taken to be on the 24th

of August, 1949. So far as the Calcutta court is concerned,

though no doubt the awards were, put into that court by the

appellant's solicitors on the 17th August, 1949, it appears

clearly from the notice issued by the Registrar dated the

30th of August, 1949, that the awards were treated as filed

only on the 29th day of August, 1949. Paragraphs 8 and 9 of

the respondent's affidavit filed in the Calcutta court on

24th of November, 1949, contain categorical assertions that

so far as the Gauhati court is concerned, the copies of the

awards were filed by the umpire on the 24th of August, 1949,

while as regards the Calcutta High Court the awards were

filed on the 29th of August, 1949. These assertions have

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not been contradicted on behalf of the appellant in the

counter-affidavit filed on the same day. From these facts,

it is clear that the earlier filing for the purposes of

section 31(3) is in the Gauhati court and not in the

Calcutta court as held by the learned single Judge under an

erroneous impression as to the facts. We may as well

mention At this stage that

889

it was not suggested before us that for legal purposes the

filing of the awards in the Calcutta High Court (on the

assumption of existence of authority in the appellant for

such filing on behalf of the umpire) is not the 29th of

August, 1949, but only the 10th of August when the letter

was sent by the solicitors to the Registrar enclosing the

awards. We mention this because it appears from the

judgment of the Division Bench of the Calcutta High Court

that some such point was raised there, but before us the

contrary was assumed. We are accordingly of the opinion

that even if the authority of the umpire for the filing of

the award into court on his behalf by the appellant is to be

taken for granted, it was in the Gauhati court that the

awards must be taken to have been filed earlier. On this

ground, therefore, we are inclined to hold that the Gauhati

court alone has jurisdiction under section 31 (3) of the

Act.

The third question which remains for consideration is

whether sub-section (4) of section 31 of the Indian

Arbitration Act of 1940 applies only where the first

application under the Act was made during the course of

pendency of a reference to arbitration or also to a case

like the present one where such first application is made

after the completion of the arbitration and on the making of

an award. As already stated, the learned Judges on appeal

did not deal with this question. The trial Judge, however,

considered the matter, and held that the above provision

related only to an application made during the pendency of a

reference to arbitration. In the view of the learned Judge,

" In order to attract sub-section (4) an application must

have been made during the pendency of the reference, and if

such an application had been made, all other applications

arising out of that reference (whether made in the reference

or not) must be made in that court".

Apparently, the learned Judge construed the phrase "in a

reference " in section 31, sub-section (4), as meaning "in

the course of a reference", and that is also the

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900

contention before us of the counsel for the appellant, which

requires closer examination.

Section 31 of the Indian Arbitration Act of 1940 is in the

following terms:

" (1) Subject to the provisions of this Act, an award may be

filed in any Court having jurisdiction in the matter to

which the reference relates.

(2)Notwithstanding anything contained in any other law for

the time being in force and save as otherwise provided in

this Act, all questions regarding the validity, effect or

existence of an award or an arbitration agreement between

the parties to the agreement or persons claiming under them

shall be decided by the Court in which the award under the

agreement has been, or may be, filed, and by no other Court.

(3)All applications regarding the conduct of arbitration

proceedings or otherwise arising out of such proceedings

shall be made to the Court where the award has been, or may

be, filed, and to no other Court.

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(4)Notwithstanding anything contained elsewherein this Act

or in any other law for the time being in force, where in

any reference an application under the Act has been made in

a Court competent to entertain it, that Court alone shall

have jurisdiction over the arbitration proceedings and all

subsequent applications arising out of that reference and

the arbitration proceedings shall be made in that Court and

in no other Court".

Sub-section (1) relates to the question as to where a

completed award has to be filed, and prescribes the local

jurisdiction for that purpose. Sub-section (2) deals with

the ambit of the exercise of that jurisdiction, and declares

it to be exclusive by saying that "all questions regarding

the validity, effect or existence of an award or arbitration

agreement between the parties to the agreement or persons

claiming under them shall be decided by the Court in which

the award under the agreement has been, or may be, filed and

by no other Court". Sub-section (3) is intended to provide

891

that all applications regarding the conduct of arbitration

proceedings or otherwise arising out of such proceedings are

to be made only in one court, and lays on the concerned

party the obligation to do so. Then comes sub-section (4),

the object of which apparently is to go further than sub-

section (3), that is, not merely casting on the party

concerned an obligation to file all applications in one

court but vesting exclusive jurisdiction for such

applications in the court in which the first application has

been already made.

Thus it will be seen on a comprehensive view of section 31

that while the first sub-section determines the jurisdiction

of the court in which an award can be filed, subsections

(2), (3) and (4) are intended to make that jurisdiction

effective in three different ways, (1) by vesting in one

court the authority to deal with all questions regarding the

validity, effect or existence of an award or an arbitration

agreement, (2) by casting on the persons concerned the

obligation to file all applications regarding the conduct of

arbitration proceedings or otherwise arising out of such

proceedings in one court, and (3) by vesting exclusive

jurisdiction in the court in which the first application

relating to the matter is filed. The context, therefore, of

subsection (4) would seem to indicate that the sub-section

was not meant to be confined to applications made during the

pendency of an arbitration. The necessity for clothing a

single court with effective and exclusive jurisdiction, and

to bring about by the combined operation of these three

provisions the avoidance of conflict and scramble is equally

essential whether the question arises during the pendency of

the arbitration or after the arbitration is completed or

before the arbitration is commenced. There is no

conceivable reason why the Legislature should have intended

to confine the operation of subsection (4) only to appli-

cations made during the pendency of an arbitration, if as is

contended, the phrase " in any reference " is to be taken as

meaning " in the course of a reference ".

It may be noticed that the Arbitration Act deals with

arbitration of three different categories: (1) arbitration

892

without intervention of the court, dealt with in sections 3

to 19 comprising Chapter IT; (2) arbitration with the

intervention of a court where there is no suit pending

provided in section 20 which is a separate Chapter III; and

(3) arbitration in suits dealt with in sections 21 to 25

comprising Chapter IV. The jurisdiction as regards the

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latter two classes of arbitrations in respect of certain

matters is provided in the very provisions relating to those

two classes of arbitrations, that is, section 20, sub-

section (1) and section 21. Sub-section (1) of section 31

appears to refer only to the first class. It may,

therefore, have been, plausibly, suggested that sub-sections

(2), (3) and (4) refer only to this class. But no such

position was taken up before us. Indeed, having regard to

the wide language employed in these sub-sections it has been

assumed that sub-sections (2) and (3) cover all three

classes in all their stages. If so, is there any sufficient

reason to think that sub-section (4) was meant to have a

very restricted operation ? On the view of this sub-section

suggested for the appellant, not only would an application

made after the award was pronounced be excluded from sub-

section (4) but also an application made before the

commencement of the arbitration, i.e., for the filing of an

agreement of reference and for a direction thereupon. It

must be remembered that section 31 is one of the group of

sections headed " General " which by virtue of section 26

are applicable to all arbitrations. Unless therefore the

wording in sub-section (4) of section 31 is so compelling as

to confine the scope thereof to applications during the

pendency of an arbitration, such a limited construction must

be rejected.

As already stated, the entire basis of the limited

construction is the meaning of the phrase " in any

reference" used in subsection (4) as meaning " in the

course of any reference ". But such a connotation thereof is

not in any ordinary sense compelling. The preposition " in

" is used in various contexts and is capable of conveying

various shades of meaning. In the Oxford English Dictionary

one of the shades of meaning of this preposition is

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"Expressing reference or relation to something; in reference

or regard to ; in the case of, in the matter, affair, or

province of.

Used especially with the sphere, or department in relation

or reference to which an attribute or quality is

predicated".

In the context of section 31, sub-section (4), it is

reasonable to think that the phrase "in any references means

" in the matter of a reference ". The word "reference"

having been defined in the Act as "reference to

arbitration", the phrase "in a reference" would mean "in the

matter of a reference to arbitration". The phrase "in a

reference" is, therefore, comprehensive enough to cover also

an application first made after the arbitration is completed

and a final award is made, and in our opinion that is the

correct construction thereof in the context. We are,

therefore, of the opinion that section 31 (4) would vest

exclusive jurisdiction in the court in which an application

for the, filing of an award has been first made under

section 14 of the Act.

It is undisputed that the application by the respondent

Union of India was made before the Gauhati court on the 10th

August, 1949, and the earliest move by the appellant before

the Calcutta court was on the 17th August, 1949. Oil these

facts and on the view of the interpretation of section.31,

sub-section (4), which we are inclined to take, it is clear

that the Gauhati court only has the jurisdiction and not the

Calcutta High Court as regards the present dispute.

In the result, the two appeals must be dismissed with costs.

Appeals dismissed.

Agent for the appellant: Sukumar Ghose.

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Agent for the respondent: G. H. Rajadhyaksha.

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