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Petitioner: ZAKIR ALI VS Respondent: AQEEL AHMED
Court Name: Sindh High Court Judge(s): Ghulam Nabi Soomro Title: ZAKIR ALI vs AQEEL AHMED Case No.: Transfer Application No,24 of 2002 Date of Judgment:2002-04-24 Reported As: 2002 YLR 1492 Result: Case remanded
Judgment ORDER ' The present transfer application has been filed with a prayer to transfer First Rent Appeal No,230 of 2001 pending in the Court of 1st. Additional District Judge, Karachi South to the Court of any other Additional District Judge. ' At the outset Mr: Safdar Hussain Fani, learned counsel for the respondent submitted that the present application was not maintainable as according to him such an application was to be made to the learned District. Judge, who is the Appellate Authority. It was further contended by him that subsection (1-B) of section 21 of the Sindh Rented Premises Ordinance, 1979, empowers the District Judge to recall an appeal referred to an Additional District Judge and either hear it high self or refer it for disposal of another Additional District Judge. ' On the other hand Mr. Sohail Muzaffar, learned counsel for the applicant,' while referring to subsection (1-E) (b) of the above said section submitted that High Court has the power to withdraw any appeal pending in the District Court and transfer the same to any other competent Court. ' Mr. Sohail Muzaffar further added that he had made a similar application for transfer before the learned District Judge Karachi South, but such application was returned to him by the office, on the ground that the District Judge had no jurisdiction. He, however, failed to produce any such order or a copy of the transfer application stated to have been filed before the District Judge. ' Subsection (1-B) of the above section is very clear on the point, which may be reproduced below.:- -- "(1-B) The District Judge may recall n appeal referred to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge."
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From the perusal of the above, it is very much clear that the' District Judge can recall an appeal referred to an Additional District Judge and either hear it himself or refer it far disposal to another Additional District Judge. Mr. Sohail Muzaffar, learned counsel for the applicant wanted the appeal to be decided by any other Additional District Judge in the District. Admittedly, the above FRA was referred to the Court of learned 1st. Additional District Judge, Karachi (South), by the District Judge of the District. Hence such District Judge was competent to recall such an appeal and either hear it himself or refer it for disposal to another Additional District Judge. ' In view of the above, this application is dismissed as not maintainable. The applicant may file such an application before the Court of learned District Judge. On being ' pointed out by Mr. Fani that the applicant wants to prolong the matter as the rent case was filed as far back as 1991, it is directed that in the event of filing of similar application the learned District Judge, shall decide the same expeditiously and the learned Court seized of the above appeal shall decide the appeal within a period of two months. Case remanded. 2002 YLR 1494 [Karachi] Bafore Anwar Mansoor Khan, J M. IFTIKHAR & COMPANY (PVT.) LTD.---Plaintiff versus PAKISTAN. STEEL MILLS LTD.---Defendant Suit No,1717 of 1997, decided on 27th. September, 2001. (a) Arbitration Act (X of 1940)--- ----Ss. 14, 17, 30 & 33---Limitation Act (IX of 1908), Ss.,5, 14(2) & Art. 158---Sindh Chief Court Ales (0.S.), Rr.280 & 282(1)---Objections to' award, filing of---Limitation--Non-filing of objections in time due to non-supply of copy of award by arbitrator for non-payment of his fee---Award accompanied by application under S. 14(2) of Arbitration Act, 1940 was filed in Court on 23-12-1997- --Notice of award was received by respondents on 21-1-I998---Respondents on 27-1-1998 filed Vakalatnama of the counsel-Application- for certified copy of award was made on 28-1-1998, which was received by them on 13-2-1998---Objections to award were filed on 9-3-I998--- Contention of respondents was that time spent in obtaining certified copy was liable to be excluded, therefore, time as provided under Art.158 of Limitation Act, 1908, would run from 13-2-1998 and not from date of service of notice of filing the award-Validity-Copy of award was available with respondents as had been stated in affidavit annexed with their application---Respondents could have taken certified copy of award, in case same was not available with them-Certified copy of award had admittedly been taken---Objections were beyond limitation as notice of filing award had been served on 21-1-1998 and time for filing objections to award had expired on 20-2-1998-- Section 5 of Limitation Act, 1908, being not applicable, extension in time could not be granted--- Award being validly filed had to be seen on its own merits---Court did not accept objections to award as being time-barred. [pp. 1502, 1503, 1505] A, B & C Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 80Q; Inayatullah Khan v. Obaidullah Khan and others 1999 SCMR 2702; Standard Insurance Company Ltd., Multan v. Fazal Cotton Industry and another 2000 MLD 1564; Burma Oil Mills Ltd., Karachi v. Messrs Colony Textile Mills Ltd. 1980 CLC 512 and Akhtar Trading Co. v. Food Department and others 1991 CLC 258 ref. (b) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Making award rule of Court-Duty of Court to examine award suo MOW in. Absence of any objections---Scope--Question,whether all objections that may need to be taken up in application under S.33 and all objections as provided in S.30 of the Act would have to be scru. tinisedValidity-Section 17 of the Act comes into play after time for making application to set aside
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award under Ss. 30 & 33 of the Act is expired or where same has been refused-- Expression "where the Court sees no cause to remit.Award" as used in S.17 of the Act, gives a wide scope to the Court to look into all the aspects contained in 5.30 of the Act and see, if there ,ore grounds for setting aside or modifying the award. [p. 1506] D Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 and Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 ref. (c) Arbitration Act (IX of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of 1908), Art.158---Making award ride of Court---buts of Court to scrutinize award in absence of objections thereto---Scope--- Objections to award filed under S.33 of the Act being time-barred were refused by Court---Effect---Court could itself, scrutinize award7--While doing so, Court was not required to act as a Court of appeal and could not substitute its own finding on appreciation of evidence-Duty of the Court was to see, in absence. Of any objections, whether award suffered from cini.; legal defect or infirmity. [p. 15071 E Pakistan through General Manager, Pakistan Railways v. Messrs O.M.R. Expert. Consultants PLD 1990 SC 800 and Messrs Abdullah Traders v. Trading Corporation of Pakistan Ltd. And 2 others 1999 CLC 2047 ref. (d) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of .1908), Art. 158---Making award rule of Court--Court sought assistance of respondent, after dismissing his objections to award made under S.33 'of the Act as being time-barred---Such objections filed could not be looked into or argued before Court- - Excessive burden had been Cast on Court to determine correct facts---Court allowed Counsel of respondent to argue matter only to show any misconducted proceedings---Court did so only for the purpose of determination, whether award could or could not be set aside, and whether the proceedings or any part thereof had , been misconducted or not within the scope of S.30 of the Act. [pp. LSO& 15091 F & G (e) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of 1908), Art. 158---Making award rule of Court-Powers of Court to examine award on its own in absence of objections---Objections to award not considered by Court for being time-barred--Court could proceed under S.17 of Arbitration Act, 1940 to examine, award---Both parties duly represented before arbitrator had put up each contract separately and argued the matter- Arbitrator in award had given details of each contract separately--Award was-based on evid,ence-Documents produced were admitted documents---All claims of claimants and counter-claim made by respondents had been stated in award and dealt, with by arbitrator-Court made award rule of the Court in circumstances. [pp. 1509, 1510, 15141 G, H, J & S (f) Arbitration--- ----Contractual obligation---Jurisdiction of arbitrator---Contractual obligation including the arbitration and jurisdiction would naturally .Run from each of the specific contracts entered into. [p. 1509] 1 (g) Arbitration Act (X of 1940)--- ----Ss. 30 & 33---Grounds for setting aside award---Jurisdiction of Court to enter into factual controversy---Scope---Objection to award was that various claims filed by claimant before Arbitrator were timebarred-Validity-Duty of Court was to see, whether Arbitrator had exceeded his jurisdiction in deciding the matter, which did not fall within the ambit of various claims---Arbitrator had rejected objection as to limitation after having dealt with matter at some length---Court would not enter into factual controversy, which was the domain of Arbitrator. [p. 1511] K (h) Words and phrases---
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- ---"Perverse"---Meanings. [p. 1512] L Qazi Ghulam Ahmad v. J.F., Elahi, Election Tribunal, Chakwal and others PLD 1962 Lah. 786; Parry's Employee's Union v. Parry & Co., Ltd. And others AIR 1966 Cal. 31; Aiyer's Judicial Dictionary, 11th Edition, page 867; Aiyer's Law Lexicon, 1997 Edition, page 1457; Law Terms and Phrases by Makal, page 686 and Words Phrases by Kakahel 3918 ref. (i) Arbitration Act (X of 1940)--- ----S. 30---Grounds for setting aside award---Arbitrator was not obliged to give findings on each and every issue comprising the reference---Insufficiency of evidence or non-consideration of empire evidence by Arbitrator or his failure to consider a particular, piece of evidence or the possibility of a different and more plausible view of the matter in dispute could not be a ground for interference with an award under S.30 of the Act. [p. 1513] M & N Messrs Joint Venture KG/Rist v. Federation of Pakistan and 2 others PLD 1996 SC 108; Province of Punjab and others v. Messrs Mian Muhammad Saleem & Co. 1985 SCMR 1215; Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; Messrs Badruddin H. Mavani v. Government of Pakistan, Ministry of Food and another 1981 CLC 339; Messrs National Construction Co. v. The West Pakistan Water and Power Development Authority PLD 1987 SC 461; Abdur Rahman Munshi and 7 others v. Dr. Abdul Malek and 11 others 1968 SCMR 275; Gulzar Hussain Awan v. Akbar 1984 CLC 3164; Moinuddin Siddique v. Saleem Siddiqui 1984 CLC 2568; Messrs Alpha Insurance Co. Limited v. Messrs Ch. Nizam Din & Sons and another 2001 CLC 289; Messrs Ghee Corporation of Pakistan Ltd. v. Messrs Kouk Oils and Grains (Pvt.) Ltd. 1999 MLD 2617; Turner Morrison Garahams Group of Companies, London v. Rice Export Corporation Pakistan Ltd. PLD 1998 Kar.79; Zakaullah Khan v. Government of Pakistan PLD 1998 Lah. 132; Messrs Ibad & Co. v. Province of Sindh and 2 others PLD 1980-ar.207; The Premier Insurance Co. (Pakistand., Karachi v. Ejaz Ahmed Khawaja and 3'others 1981 CLC 311; AJ&K Government v. Ghulam Rasul Lone 1983 CLC 926; Associated Constructors Ltd. v. Karachi Municipal Corporation 1982 CLC 1984; Messrs Qamar Din Ahmad & Co. v. Pakistan and another PLD 1971 Lah. 380; Baluchistan Province and another\v. Malik Halt Gul Hassan PLD 1982 Quetta 52; Faizanul Haq v. Irfanul Haq, etc. 1986 MLD 2750; Province of Baluchistan v. Messrs Tribal Friends Company, Loralai PLD 1986 Quetta 321 and Messrs Hussain Textile Mills Limited, Karachi v. Messrs Dada Sons Limited, Karachi PLD 1973 Kar. 413 ref. (j) Arbitration Act (X of 1940)- - ---Ss. 13, 8, 20, 23 & 2(a)---Jurisdiction of Arbitrator---Scope---Arbitrator has to act within the jurisdiction, scope of reference and arbitration agreement. [p. 1513] 0 (k) Arbitration Act (X of 1940)--- - ---S.30---Award, setting aside of---Grant of interest/general mark-up and profit from date of award, until decree---Validity---Court disallowed same being in excess of jurisdiction, scope and authority of Arbitrator. [p. 1514] P, Q & R (1) Arbitration Act (X of 1940)--- ----Ss. 14(2), 17 & 38---Arbitrator's claim as to fee and costs due in respect of arbitration--- Arbitrator filed award in Court alongwith application under S.14(2) of the Act---Court while making award rule of Court allowed-such claim of Arbitrator and directed respondents to pay their share of costs stated in award. [p. 1514] S & T Rahim v. Shahban and others AIR 1935 Sindh 200 and Shib Krishna Tarafdar v. Sunil Kumar Tarafdar AIR 1949 Cal. 189 ref. Bilal A. Khawaja for Plaintiff. Akhtar Ali Mehmood for Defendant. Date of hearing: 21st November, 2000. JUDGMENT ' This is an application under section 14 of the Arbitration Act, 1940 (hereinafter referred to as the Act of 1940) whereby the sole arbitrator has filed the award in Court, in the said application, however, upon filing, the sole arbitrator has stated that the Pakistan Steel be directed to deposit in Court
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their share of the fee, due to the arbitrator before any application of any party challenging the validity of award or otherwise is entertained. An application being C.M.A. No,784 of 1998 was filed by the respondents namely Pakistan Steel Mills Ltd.: seeking directions to supply copy of the application under section 14(2) alongwith award so as to enable the defendants to file their objections to the said award. On 4-8-1998, an order was passed on the said application, dismissing the same, on the ground that the application had become infructuous as, the objection had already been filed. Before I proceed to deal with the merits of the arbitration award, it is important to thrash out the positions taken up by Mr. Akhtar Ali Mehmood, Advocate for Pakistan Steel, as to whether the application under section 14(2) filed by the arbitrator could be deemed to be an application within the meaning of law and the objection of Mr. Bilal A. Khawaja for the Plaintiff whether the objections filed thereto were valid, within time and could be accepted. 2. The facts as propounded by Mr. Akhtar Ali Mehmood are that, in 1992, Mr. Fakhruddin G. Ibrahim who was appointed as sole arbitrator entered reference on the basis of an order passed by this Court on 13-12-1990 in Suit No,511 of 1987. The proceedings concluded on 12-7-1997. It is stated by Mr. Akhtar Ali Mahmood that on 15-7-1997, the arbitrator fixed his fee at Rs,3.5 million requiring, the parties to pay the same equally. On 27-9-1997, the arbitrator issued a notice under section 14(1) of the Act of 1940 for announcement of award. The award was announced on 6-11-1997. A copy of the award was, however, not delivered to the respondents as, the arbitrator claimed lien thereon, on the ground, that Pakistan Steel, the defendant herein failed to settle the arbitrator's fee. It is stated that on 7-11-1997 Pakistan Steel addressed a letter to the arbitrator that, the copy of arbitration award had not been received by them. The arbitrator on 1-12-1997, wrote back to state that he would not supply the copy, however, the same could be collected by Pakistan Steel, upon paying their share of fee for arbitration. In view of the refusal to pay their share of fee, and aggrieved by the arbitrator's claiming lien on the arbitration award, the said defendants filed a Judicial Miscellaneous Application No,4 of 1998 praying, inter alia, that the, arbitrator be directed to deliver the award, to the petitioner and that the Court determine a reasonable fee. The application was ordered to be heard along with the main case-. 3. Upon the arbitrator' filing the application under section 14(2) on 23-12-1997, notice under section 14(2) was received by the defendants on 21-1-1998. According to Mr. Akhtar Ali Mehmood, the matter was fixed before the Additional Registrar on 27-1-1998 when the Vakalatnama was filed and it was, at that point in time that the defendant was informed / of the arbitrator's objection, that he has claimed lien on the said award and that a copy thereof, ought not, therefore, be delivered to the' said defendant, till such time they pay their share of fee to the arbitrator. However, the defendant on 28-1-1998, moved an application for a certified copy of award, which copy was received by the respondent on 13-2-1998 and objections were filed on 9-3-1998. . Mr. Akhtar Ali Mehmood, Advocate states. That the time for receiving the certified copy is. Liable to be excluded. According to him the time shall run from 13-2-1998 and not from the date of the service of notice of filing the award as provided under Article 158 of the Limitation Act, 1908. According to him the service could be said to be good only when he received the copy of the said award which was 13- 2-1998. According to him the objections were filed on 9-3-1998 within the stipulated period of 30 days, as such the objections were within time. Mr. Akhtar states, that notwithstanding the fact of the receipt of notice, in fact, the filing of the application under section 14(2) is also improper and that, Article 158 would not be applicable to the provisions of subsection (2) of section 14 of the Arbitration Act which postulates, that when there is no dispute' with the arbitrator as regards the fee, costs and charges and upon payment thereof the award is liable to be filed. According to him, the award could only be filed under the provisions of section 14(2) which reads as under:-- "(2) 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
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charges due in respect of the arbitration." ' Mr. Akhtar Ali Mehmood states, that the award could only be filed upon payment of the fees and charges due in respect of the arbitration and of the costs, and charges for filing the award. He says that if there was a. Claim of the arbitrator, ought not to have filed the award, till such time, the claim is settled and that, if the party choosing to enforce the award requires the arbitrator to file the same, he ought to have made the entire payment to the arbitrator. According to him, once the award is filed in Court, it will be deemed, that the arbitrator has foregone his right on the amount and the entire amount be deemed to have been paid. Otherwise also, if the lien according to him had, been exercised, filing in Court would amount to waiver of the lien on the award. According to Mr. Akhtar Ali Mehmood, the provision of section 38 of the Arbitration Act is clear, that if in case of arbitrator or umpire refusing to deliver his award except on the payment of fees demanded by him, the Court may on an application in this respect, direct the arbitrator or umpire to deliver the award to the applicant on payment into Court, by the applicant of fees demanded and shall, after such inquiry as the Court deems fit, further order that, out of the money so paid into Court, there shall be paid to the arbitrator or umpire by way of fees such sums as the Court may consider reasonable. According to Mr. Akhtar Ali Mehmood, the award was filed directly by the arbitrator and not on orders of this Court and upon the award having been filed it is liable to be delivered to the said defendant and has further stated was delivered on 13-2-1998. 4. Mr. Akhtar Ali Mehmood further argues that under rule 282 of Sindh Chief Court Rules, it is provided that the arbitrators or umpire shall cause the award or a signed copy of it to be filed in Court by forwarding the same in a sealed cover to the Registrar (O.S.) in Form 12-B of Appendix ' A', requesting the same to be filed. According to him in Form 12-B Annexure ' A' to the Sindh Chief Court Rules, the words "at the request of" is included, which is clear evidence that the arbitrator ought to have stated as to who had required the award to be filed. According to him, the Form ought to have been filed alongwith the award and that, when the words "at the request of" is stated the party requesting should have made the payment, if any, to the arbitrator and in not doing so. Notwithstanding the fact, that subsequently claim was made such a claim was unlawful and, therefore, there would be no dispute in regard to payment of charges. Mr. Akhtar in this regards has referred to the case of Rahim v. Shahban and others (AIR 1935 Sindh 200) in which it was held. "If the arbitrator so wished he could have insisted upon payment of the fees before he patted with the award. But in view of what is stated in the award I am afraid I cannot help him. The Advocate who appears for arbitrator has argued that as in one of the cases decided by this Court under section 10, Civil P.C., it was held that as an arbitrator was also party to the proceedings filed under Indian Arbitration Act, but not a party to the suit, the suit should not be stayed. I am not concerned with an application for stay of the suit under section 10 and I do not propose to go into the question whether or not an arbitrator is a party to or interested in the proceedings under the Indian Arbitration Act while he is not a party,to the suit on the original cause of action. ' It is sufficient for me to observe that the award as it stands cannot be enforced as a decree so far as the arbitration fees go. The arbitrator has indubitably a right to file a suit for recovery of his fees as would appear from the ruling quoted by my brother Aston in J. Misc. No, 500 of 1921 and also from the case of Crampton & Holt v. Ridley & Co., (1887) 2 QB 48." ' He has further referred to the case of Shib Krishna Tarafdar v. Sunil Kumar Tarafdar (AIR 1949 Calcutta 189) wherein it was held as follows:- "(5) It was contended before us on behalf of the petitioner that the Court could not be powerless to grant some relief to the parties in a case like the present and that a party ought not to be allowed to nullify a reference by sheer recalcitrance and by refusing to pay the arbitrator's fees. That may be true, but the question before us is whether the law authorises the Court to grant relief in the particular form insisted on by the petitioner. It appears to us that the Arbitration Act addresses
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itself to this very question and prescribes a remedy which is not the remedy .Proposed by the petitioner. (6) The two relevant sections are section 14 (2) and section 38. Section 14(2) provides that the arbitrators or the umpire shall, at the request of any party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration, cause the award or a copy of it to be filed. It is clear that two conditions must be fulfilled, before an arbitrator can be compelled to file an award. -There must be a request by a party to the arbitration or a direction by the Court, and secondly, the fees and costs of the Arbitrator must first be paid. The other provision in section 38 of the Act which lays down that if in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and then Court should after further enquiry order that out of the money so paid, there shall be paid to the arbitrator by way of fees such sums as the Court may consider reasonable, subsection (2) of this section, however, provides that subsection (1) will not apply in a case where the fees have been fixed. There may be some question as to whether the present case is one where the fees have been fixed,' for all that has been fixed is the rate per sitting. But whether section 14 (2) applies to the present case or section 38 does, it is quite clear that, in either case, the applicant cannot have the award filed unless he pays of the balance of the fees due to the arbitrators. The Act, it appears to us, does not provide that if any of the parties does not pay his share of the arbitrators' fees, the Court has power to compel him to do so by means of an interim order at the instance of another party who has paid his share and wants to have the award filed. (7)Some further light on what the Act intends is thrown by two other sections of the Act, name'y, sections 18 and 41 (b), section 18 deals with the case where an award has been filed and a decree has…
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