The other observations of the Civil Court that the
objection of jurisdiction cannot be considered in a proceeding
filed to get decree on the award cannot be considered, is also
not tenable. In that matter also written statement was filed and
objection to jurisdiction was taken. When there is such objection,
the Civil Court is expected to give decision on this objection also.
Further, separate proceeding under section 33 of the Act was
there and so, while deciding to give decree on the basis of
award, it was necessary for the Civil Court to decide as to
whether Arbitral Tribunal had jurisdiction, authority. Only after
deciding such objection, the Court can pronounce the judgment
in terms of award. Other observations of the Civil Court that the
participation of the employer in the arbitral proceeding amounts
to acquiescence is also not tenable. When there is initial want of
jurisdiction, the things cannot be cured by acquiescence and the
party who appeared before the arbitrator, but took objection to
its jurisdiction is not established from questing the validity of the
award on the ground of jurisdiction.
16) In view of the aforesaid discussion, this Court holds
that the Civil Court has committed error in giving decree on the
basis of award and it has committed error in rejecting the
objection application filed by the employer. Shri. Mahurkar could
not have been appointed as arbitrator and there was no such
arbitration agreement. Thus, award is liable to be set aside.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 9 OF 1999
WITH
CIVIL APPLICATION NO. 551 OF 1999
Maharashtra Krishna Vally Development
Corporation
V
M/s. S.D. Shinde & Company
CORAM : T.V. NALAWADE, J.
DATED : 23rd November, 2015.
Citation: 2016(3) MHLJ 705
Print Page
objection of jurisdiction cannot be considered in a proceeding
filed to get decree on the award cannot be considered, is also
not tenable. In that matter also written statement was filed and
objection to jurisdiction was taken. When there is such objection,
the Civil Court is expected to give decision on this objection also.
Further, separate proceeding under section 33 of the Act was
there and so, while deciding to give decree on the basis of
award, it was necessary for the Civil Court to decide as to
whether Arbitral Tribunal had jurisdiction, authority. Only after
deciding such objection, the Court can pronounce the judgment
in terms of award. Other observations of the Civil Court that the
participation of the employer in the arbitral proceeding amounts
to acquiescence is also not tenable. When there is initial want of
jurisdiction, the things cannot be cured by acquiescence and the
party who appeared before the arbitrator, but took objection to
its jurisdiction is not established from questing the validity of the
award on the ground of jurisdiction.
16) In view of the aforesaid discussion, this Court holds
that the Civil Court has committed error in giving decree on the
basis of award and it has committed error in rejecting the
objection application filed by the employer. Shri. Mahurkar could
not have been appointed as arbitrator and there was no such
arbitration agreement. Thus, award is liable to be set aside.
APPELLATE SIDE, BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 9 OF 1999
WITH
CIVIL APPLICATION NO. 551 OF 1999
Maharashtra Krishna Vally Development
Corporation
V
M/s. S.D. Shinde & Company
CORAM : T.V. NALAWADE, J.
DATED : 23rd November, 2015.
Citation: 2016(3) MHLJ 705
