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TMI Blog2004 (3) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... ication are these. In terms of a contract executed between the judgment-debtor and the award-holder on February 25th, 1886 the award-holder was engaged for handling goods, parcels and luggage booked at Itwari, Kamptee, Kanhan Bhandara Road, Tumsar Road and Tirora Stations. Clause 24(b) of the contract provided as follows: 24(b). The Contractor/Contractors is/are required to give a no claim certificate before the security deposit is refunded to him/ them. The right to claiming any amount or disputing any decision shall be deemed to have been waived as soon as the Security Deposit is received back by the Contractor/Contractors on submission of the no claim certificate. If, however, the Contractor/ Contractors has/have any dispute or diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. It approached the authority for referring the disputes to arbitration. The General Manager by his letter dated April 19th, 1993 referred the disputes to the sole Arbitrator appointed by him. The Arbitrator made his award on August 25th, 1993. As against the claim of the award-holder (Rs. 29,66,099/-), the Arbitrator awarded Rs. 27,72,346/-. The award was made under the Arbitration Act, 1940. It was filed before this Court. The judgment-debtor filed an application for setting aside the award. The award was set aside by the learned single Judge. In appeal preferred by the award-holder, by judgment and order dated September 4th, 2001 the Division Bench of this Court made the award rule of Court. Before the award was made rule of Court, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and the decree that followed the award are void in the eye of law. 6. Mr. Chatterjee relies on the decision in M/s. Prabartak Commercial Corporation Ltd. v. The Chief Administrative Dandakaranya Project and Anr., AIR1991SC957 for the proposition that an award made on an invalid reference is without jurisdiction. To show that the terms and conditions in the arbitration clause [Clause 32 (a) of the contract] are valid and lawful, he has relied on an unreported decision dated January 10th, 2001 given by Aloke Chakrabarti, J. in A.P. 288 of 2000 (M/s. A.K. Pal v. General Manager, Metro Railway, Calcutta). The decision in Union of India v. M/s. Popular Builders, Calcutta,: AIR2000SC3185 has been relied on by him in support of the propositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the award by making substantial payment; and hence it should not now be permitted to raise the question of jurisdiction of the Arbitrator to make the award. He relies on the decision in Prasun Roy v. Calcuta Metropolitan Development Authority and Anr., [1987]3SCR569 . His further contention is that the decree-holder was not prevented from seeking arbitration of the disputes and differences under the contract, simply because he had taken refund of the security after giving an no claim certificate. 8. On the basis of the authorities cited at the bar, I find substantial force in Mr. Chatterjee's submission. It was held in Prabartak Commercial Corporation's case that an award made by the Arbitrator on the basis of an invalid refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raised, and the executing Court can decide the question. I find that in Jagat Ram Trehan's case in an almost similar situation the Section 47 application filed by the Union of India which had suffered the award was allowed by the Division Bench of the Delhi High Court. 9. The question of acquiescence, in my considered view, will not be relevant in a case where the challenge is that the decree sought to be executed is a nullity. A decree which is a nullity in the eye of law is no decree, and hence even by consent of the parties such a decree cannot be executed by the Court. True that the Judgment-debtor did not raise the question before, but for this reason it cannot be denied the remedy available to it under Section 47 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree-holder raised the disputes and sought the reference. This being the position, the award made by the Arbitrator was clearly a nullity. The authorities cited by Mr. Chatterjee fully support this position. Consequentially the decree is also a nullity. Hence I am of the view that the decree is not executable. 12. For the foregoing reasons I hereby allow this application filed under Section 47 of the Code of Civil Procedure. The execution proceeding (E.C. No. 22 of 2003) initiated by the decree-holder is hereby dismissed. 13. In the facts and circumstances of the case, I am not inclined to make any order for costs in favour of the judgment-debtor, either in this application or in the execution proceeding. Hence there will be no o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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