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Report No. 76

2.5. Object of requirement of writin.-

Madras case on oral submission.-The object of requiring a matter to be in writing is, in general, to prevent the parties from contradicting each other as to what was agreed and understood. As has been observed, the object in requiring "writing" in section 4(b) of the Indian Act of 1899 was to "provide clear and unmistakable evidence of the submission to which the parties agreed" .1

Consistently with this object, oral agreement to refer differences to arbitration should not now be recognised. Award on such agreements can be operative if accepted by the parties as an agreement. But that is not the same thing as recognising their validity as awards. Dealing with the point discussed above, Viswanatha Sastri J. referred to the case law which had held that an award obtained on a parole submission was enforceable by suit, though not by the special procedure under the Second Schedule. He offered his own comments in these words2-

"The question is whether the Arbitration Act of 1940 has superseded the law as laid down in these cases. The answer is not free from difficulty in view of the uncertain nature of the statutory provision. After discussing the various statutory provisions, he held the Act of 1940 to be exhaustive, and "an award passed on oral submission can neither be filed and made a rule of court under the Act, nor enforced apart from the Act.

1. John Batt Co. v. Kamoolal, ILR 53 Cal 65: AIR 1926 Cal 938 (940), right hand (Page, J.)

2. Beili Gawder v. Joghi Gawder, AIR 1951 Mad 683, para. 2.



Arbitration Act, 1940 Back




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