Dismissed

Francis Mukkanical v. the General Manager

Kerala HC1 Aug 2012Arb.A/1/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging the rejection of an application to set aside an arbitral award under the Arbitration and Conciliation Act. The Court held that the Arbitration and Conciliation Act does not apply to arbitrations under the Indian Telegraph Act because section 7B(2) renders the award final and conclusive, barring judicial review except under writ jurisdiction.

What did the court decide?

No costs.

Francis Mukkanical Vs the General Manager — Arbitration | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934

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Arb.A.No. 1 of 2012 ()

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IN OP(ARB).219/2007 of II ADDL.DISTRICT COURT,ERNAKULAM

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APPELLANT/PETITIONER:

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FRANCIS MUKKANICAL PROPRIETOR,M/S.ANNA MARIA STORES AND AGENCIES NEERO TOWERS,KUTAPPAYI ROAD,OPP.POPULAR AUTOMOBILES COCHIN-25.

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BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE

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RESPONDENT:

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THE GENERAL MANAGER BSNL,RTO BUILDING,LUKES LANE PULIMOODU,THIRUVANANTHAPURAM.

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BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL

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THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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dlk

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THOTTATHIL B.RADHAKRISHNAN &

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C.T.RAVIKUMAR, JJ.

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Arb.A.No.1 of 2012

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Dated this the 1^st day of August, 2012

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JUDGMENT

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Thottathil B.Radhakrishnan,J.

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C.R.

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1.Appellant is a consumer of BSNL, governed by the provisions of the Indian Telegraph Act, 1885. Disputes raised by him were determined by arbitration in terms of section 7 B of that Act. He challenged that award invoking section 34 of the Arbitration and Conciliation Act, 1996, for short, the “A&C Act”. The court below held, inter alia, that under sub-section 2 of section 7 B of the Telegraph Act, the award passed under that Act is final and conclusive between the parties and cannot be called in question in any court and therefore, the appellant’s application under section 34 of the A&C Act is not maintainable. Hence this appeal.

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Arb.A.1/12

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2.Heard the learned counsel for the appellant, the learned standing counsel for BSNL and the learned Senior Government Pleader.

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3.Sub-section (5) of Section 2 of the A&C Act provides that subject to the provisions of sub-section (4), and save in so far as is otherwise provided by, inter-alia, any law for the time being in force, Part I of the A&C Act shall apply to all arbitrations and to all proceedings relating thereto. Section 2(4) of that Act enjoins that Part I, except sub-section (1) of Section 40 and Sections 41 and 43, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of that Part are inconsistent with that other enactment or with any rules made thereunder. If the provisions of that other enactment or rules thereunder are consistent with the provisions of the A&C Act, despite absence of an arbitration

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Arb.A.1/12

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agreement, rest of the provisions of A&C Act would apply, as if there was an arbitration agreement between the parties and the dispute becomes arbitrable under the A&C Act, as if there was an arbitration agreement between the parties. If there is any inconsistency, then the provisions of the A&C Act do not get attracted. Section 34 of the A&C Act provides for recourse to a court against an arbitral award by an application for setting aside the award in accordance with sub-section (2) and sub-section (3) thereof.

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4.Section 7-B of the Telegraph Act provides for arbitration of disputes. Sub-section (1) thereof enjoins that the disputes stated therein shall be determined by arbitration in terms of the regulatory finer provisions contained in that provision. Sub-section (2) provides that the award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.

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Arb.A.1/12

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5.Now, it is apposite to refer to the decision of the Hon'ble Supreme Court of India in Aundal Ammal v. Sadasivan Pillai [(1987) 1 SCC 183] . Dilating on a provision which used the legislative tools “shall be final” and “shall not be liable to be called in question in any court of law”, it was laid down that the expression “shall be final” means what it says. To hold so, the precedent in Kydd v. Watch Committee of City of Liverpool [(1907) 2 KB 591] was noted to the effect that when a decision is stipulated to be final, it is to be final and it means that there is to be an end of the business in that regard. Considering the phrase “shall be final” and “shall not be called in question”, the Hon'ble Supreme Court of India in South Asia Industries Pvt. Ltd. v. S.B.Sarup Singh [AIR 1965 SC 1442] held that such provision puts an end to a further appeal and bars other proceedings, including collateral.

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6.As already noted, the prescription in section 7-B(2) of the Telegraph Act is that the award of the arbitrator appointed

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under sub-section (1) shall be conclusive between the parties in dispute and that it shall not be questioned in any court. Where the term “conclusive” is used in a statute with reference to decisions of an authority, it cannot be questioned by appeal or otherwise, unless, of course, it is given in disregard to jurisdiction and therefore a nullity. For support see Waterhouse v. Gilbert [(1885) 15 QBD 569], Bryant v. Reading [(1886) 19 QBD 128] and Lyon v. Morris [(1887) 19 QBD 139].

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If the legislature states that the decision or order shall be final and conclusive, that would not fetter the remedies available under the Constitution. But, it definitely inhibits recourse to jurisdiction which gets excluded by that provision. Therefore, excepting to the extent of remedies that may be available under the Constitution, that is to say, in writ jurisdiction, the award would be conclusive. It cannot be questioned through an application under A&C Act.

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Arb.A.1/12

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8.When the A&C Act clearly says that it would operate in relation to arbitrations under other statutes, only in so far as the provisions of Part I of the A&C Act are not inconsistent with that other enactment, it contains the legislative recognition of the existence of provisions like sub-section (2) of section 7-B of the Telegraph Act, which curtail recourse to any remedy by calling in question the award in any court. When a statute says that a decision thereunder shall be conclusive between the parties and shall not be questioned in any court, it is trite that such decision shall not be liable to be so questioned. Such prohibition is a complete inhibition against recourse to, or, remedy under, any other statute law. So much so, the provision in sub-section (2) of section 7-B of the Telegraph Act which gives the award under that Act such finality that would remain conclusive between the parties and that it shall not be questioned in any court is a provision in that enactment inconsistent with the provisions of Part I of A&C Act.

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Arb.A.1/12

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9.For the aforesaid reasons, the provisions of A&C Act would not apply to arbitration under the Telegraph Act. Hence the impugned order dismissing the appellant’s application under section 34 of the A&C Act does not warrant interference.

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In the result, this appeal is dismissed. No costs.

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Sd/THOTTATHIL B.RADHAKRISHNAN, Judge.

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Sd/C.T.RAVIKUMAR,

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Judge.

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kkb.

Francis Mukkanical v. the General Manager

Case brief

What is this about?

What did the court decide?

Francis Mukkanical v. the General Manager

Case brief

What is this about?

What did the court decide?

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