WHAT IS THE MEANING OF “in the course of a reference”
Apparently, the learned Judge construed the Phrase “in a reference” in S. 31, sub-s. (4) as MEANING “in the course of a reference”, and that is also the contention before us of the counsel for the appellant, which requires closer examination.
Arbitration Act of 1940
11. Section 31, 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 he 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.
(4) Notwithstanding anything contained elsewhere in 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”.
12. 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 dealeres it to be exclusive by saying that
“all questions regarding the validity, effect or existence of an award or arbitration agreement between the partise 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 he, filed and by no other Court.”
Sub-section (3) is intended to provide 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-s. (4), the object of which apparently is to go further than sub-s. (3), that is, not merely casting on the party concerned an obligation to the all applications’ in one Court but vesting exclusive jurisdiction for such applications in the Court in which the first application has been already made.
13. Thus it will be seen on a comprehensive view of S. 31 that while the first sub-section determines the jurisdiction of the Court in which an award can be filed, sub-ss. (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 sub-s. (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 sub-s. (4) only to applications 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.”
14. It may be noticed that the Arbitration Act deals with arbitrations of three different categories: (1) arbitration without intervention of the Court dealt with in Ss. 3 to 19 comprising chap. II; (2) arbitration with the intervention of a Court where there is no suit pending provided in S. 20 which is a separate chap.III; and (3) arbitration in suits dealt with in Ss. 21 to 25 comprising chap. IV. The jurisdiction as regards the later two classes of arbitrations in respect of certain matters is provided in the very provision relating to those two classes of arbitrations, that is, S. 20. Sub-s. (1) and S. 21. Sub-section (1) of S. 31 appears to refer only to the first class. It may, therefore, have been plausibly, suggested that Sub-Ss. (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 ss. (2) and (3) cover all three classes in all their stages. If so, is there any sufficient reason to think that sub-s. (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 pronounce be excluded from sub-s. (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 S. 31 is one of the group of sections headed “General” which by virtue of S. 26 are applicable to all arbitrations.Unless therefore me wording in sub-s. (4) of S. 31 is so compelling us to confine the scope thereof to applications during the pendency of an arbitration, such a limited construction must be rejected.
15. As already stated, the entire basis of the limited construction is the MEANING of the phrase “in any reference” used in sub-s. (4) as MEANING “in the course of any reference.” But such a connotation thereof is not in any ordinary sense compelling. The proposition “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
“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 S. 31. Sub-s. (4), it is reasonable to think that the phrase “in any reference” 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 S. 31 (4) would vest exclusive jurisdiction in the Court in which an application for the filing of an award has been first made under S. 14 of the Act .
SOURCE: AIR 1953 SC 313 : (1953) SCR 878