V. Narasimha Raju v. V. Gurumurthy Raju and Oth.T£rs

Judgment

V. NARASIMHA RAJU V. GURUMURTHY RAJU AND OTH.t£RS (P. B. GAJENDRAGADKAR, K. 0. DAS GUI'TA and RAGHUBAR DaYAL, JJ.) Arbitration-Agreement of ref erence-Oonsideratiori found unlawful-Legality af the award-Agreement for arbitration on withdrawal of criminal case-Public policy-Indian Oontract Act, 1872 (9 of 1872); s.23. In respect of a business which the appellant and the first respondent were carrying on in partnership along with others till September 15,1942, the first respondent demanded that the account should be made and the profits divided between the partners. Disputes arose when dividing the profits that whereas the first respondent claimed for himself alone the amount due to him and the fourth respondent, the latter demanded that the said amount should be divide·d half and half between them.

The first respondent then proceeded to file a criminal complaint in the Magistrate's court against the partners including the appellant in which he alleged that the accused persons had corn mi tted offences under ss. 420,'465, 468 and 477 read with ss. 107 and 120-B of The Indin Penal Code. The charge levelled by the first respondent was that the accounts of the partnership had been fraudulently altered with a view to show tf.::c the fourth respondent was entitled to share equally the profits with the first respondent. Process was issued on the complaint and the . matter stood adjourned for hearing to December 30,1943. On that date the first' respondent and the 'accused persons entered into an agreement under which the dispute between the appellant and others and the first respondent was to be referred to a named arbitrator on the first respondent agreeing to withdraw his criminal complaint.

Accordingly after the complaint was dismissed on the first respondent intimating to the Court that he had no evidence to support his case, the agreement signed by the parties was handed over to the ar_bitrator. In due course, the arbitrator pronounced his award and the first respondent took steps to have a decree passed in terms of the award. Thereupon the appellant filed an application under the provisions of the Arbitration Act, 1940, for setting aside the award on the ground that the consideration for the arbitration agreement was unlawful as it was Augiut 22. V. JV n1asim1aa /laju Y. GurumwliJJ Raju SUPREME COURT REPOR'fS [1963) the promise by 'the first respondent not to prosecute his complaint which involved a non-compoundable offence and, therefore, the agreement was invalid under s.23 of the Indian Contract Act, 1872. Held, that the arbitration agreement executed by the parties on December 30, 1943, was invalid under s.

23 of the Indian Contrac.t Act, 1872, because its consideration was opposed to public policy. Consequently the award could not be enforced. Blwwanipur Banking Corporation Ltd, v. Sreemati DurgeshNandini Dassi, A,I.R. 1941 P. C. 95, Kami11i Kuma• Basu & Ors. v. Birendra Nath Basu & Anr., L. R. 57 I. A. 117 and Sudhindra Kumar v. Ganesh Chandra (1939)1 Cal. 241, relied on. ClvIL APPELATE J:uRisDICTION : Civil Appeals Nos. 494 and 4;115 of 1957. Appeals from the Judgment and decree dated March 5, 1954, of the Orissa High Court in Mios. Appeals Nos. 25 and :16of19411. A. V. Viswanatka Sastri and T. V. R. Tatachari, for the appellant. M. S. K. Sastri for respondent No. I. 1962 August 22.

The Judgment of the Court was delivered by GAJENDRAGADKAR, J.- The short question which arises in these two appeals is whether the Muchalika (Agreement of Reference) whioh was executed by the appellant and the four respondents in favour of Tanguda Narasimhamurty on the 30th of December, 1943, is invalid because its consideration was opposed to public policy under s. 23 o( the Indian Contract Act. Both the trial Court and the High · Court of Orrisa have answered this question in the negative, and .. the appellant, who "' has come to this Court with a certificate granted 3 S.C.R. . SUi'REME COURT REPORTS by the High Court under Art. 133 of the Constitution, contends that the said conclusion is contrary to law. Y. N arosimha lloju P'. Gurumurth;J Raju It l\ppears that th~ ~ppellant took a lease of 6aJmdra1adkar J. the Parlakipiedi Samasthanam Rice and Oil Mill for three years from 194:1 to 1944 under a registered lease-deed on the 9th December, 1940. The rent agreed to be paid was Rs. 7,000 per annum.

For the working of the Mill, the appellant took six partners with him and their shares in the partnership were duly determined. The partnership carried on the work of milling rice and extracting oil from ground-nuts. The appellant also carried on another business in paddy and ground-nuts and in this business too he took as his partners four out of his six partners in the business of milling rice and extracting oil from ground-nuts. Amongst thesepartners was respondent No. IV. Gurumurty Raju. This latter bussiness was o~rried on for about 14 months until the end of March, 1942. Two of the partners then retired from the said business and took away their shares in the Capital and the profits. , The remaining three partners continued the business of the firm; the appellant had As.O. 7 .3 share, respondent No. 2 had 0.6.9 share and re1- pondent No. l along with respondent No. 4. had 0.2.0 share.

Thus, the partnership, in fact, oonsi!:ited of five partners respondents 1 and 4 being together entitled to a share of As. 0.2.0. The busin(:SS of the partnership thus carried on by these partners went on till the 15th September, 1942. Respondent No. 1 then demanded that the aooounts should be made and the profits divided between the partners. As a result of this demand, the partnership was stopped, accounts were made and profits divided. The appellant and respondent V. N arasimha Raju . V. Gurumurlh,J Rr.Ju Gajenrfragod!mr J. No. 2 took away their respective amounts, but respondent No. 1 claimed for himself alone the amount due to him and respondent No. 4, whereas respondent No. 4 demanded that the said amount should be dividE>d half and half between him and respondent No. I. That is how a dispute arose. about the share of respondent No. 1. I Respoadent No. I then proceeded to file a criminal complaint in the Court of the Joint Magistrate at Berhampur against six persons, including the appellant.

In this complaint he alleged that the six accused persons had committed offenecs under ss. 420, 465, 468 and 477 read with ss. 107 and 120-B of the Indian Penal Code. The substance of the charge thus fovelled by respondent No. I was that tp.e accounts of the partnership had been fraudulently altered with a view to show that respondent No. 4 was entitled'to share equally the profits with respondent No. 1. In these prooeedings, respondent' No. I obtained an attachment of the account-books of the two businesses carried on by the appellant with his partners. This criminal oomplaint was numbered as Criminal Case No, 139 of 1943, and after process was issued on it and some preliminary steps had been taken, it stood adjourned for hearing to December 30, 1943. On December 30, 1943, respondent No. I and the accused persons entered into an agreement (Exbt. I) as a result of which the dispute between the appellant and others and respondent No. I was agreed to be referred to the arbitration of Mr. · Murty on the respondent No. I agreeing to withdraw his criminal complaint.

Accordingly, when the criminal case was called out for hearing on that date, respondent No. I stated that he had no evidence to support his case and so, the complaint was dismissed; and the arbitration paper signed by y r I I SUPREME \JOUR'r REPORTS the parties was handed over to the arbitrator, Mr. Murty. That is how the impugned arbitration agreement came to be passed between the parties and Mr. Murty came to be appointed an arbitrator. V • .Nari.simha R,ju V. Gurumurthy Raju The arbitrator then began his proceedings Gajendragadkar J. · and after recording evidence, he pronounced his award ex-parte 'on September 14, 1946. During the pendency of the said arbitration proceedings, the appellant had applied to the Subordinate Judge at Berhampur ·for removing the arbitrator on the ground of his misconduct under ss. 5 and 11 of the Arbitration Act (M.J.C. No. 34 of 1944). The said . application was dismissed.

The appellant then ·preferred a Revisional Application against the order . of the trial Judge (Revision Petition No. C.R. 78 of 1946), but the. said petition was also dismissed .on March 26, 1949. Pending the disposal of the said Revision Petition, the award was. pronounced on Septemper 14, 1946. After the award was thus pronounced, respon- . dent No, 1 made an application to the Subordinate Judge at Berhampur on Decemb\)r 10, 1946, (M.J.C. No. 105 of 1946) under ss. 14 and 30 of the Arbitration Act for the filing of the award and for passing a decree in terms thereof. The appellant filed an application on January 14, 1947, in the same Court under s. 33 of the Arbitration Act for setting aside the award (M.J.C. No. 8 of 1947). To both the11e applications, all the parties to the Reference and . the. A1 bitrator were impleaded. By his application, the appellant claimed the setting aside of the award on several grounds, one of which was that the arbitration agreement was invalid under s.

23 of the . Indian Contract Act. Both the Courts have rejec- . ted this contention. In the reault, the application for setting aside of the award made by the appel- . lant has been dismissed and the application made by respondent No. 1 for passing a decree in terms V • .Narasimha Raju V. Gurumurthy Raju GaJendrogadlc1r J • of the award has been allowed. Both the Courts have also considered and rejected the other contentions raised by the appellant in support of his plea that the award was invalid; but for the purpose of these appeals, it is unnecessary to refer to the said findings, because we have come to the con. clusion that tile appellant is right in contending that the arbitration agreement is invalid under s. 23 of the Indian Contract Act. Section 23 prbvides that every agreement of which the object or consideration ·is unlawful is void, and it lays down that the consideration of an agreement is lawful unless, inter alia, it is opposed to public policy.

ARreement made by parties for stifling prosecution are not enforced by courts on the ground that the consideration for such agreements is opposed to public policy. If a person sets the machinery of the Criminal Law into action on the allegation that the opponent has committed a non-compoundable offence and by the use of this coercive criminal process he compels the opponent to enter into an agreement, that agreement would be treated as invalid for the reason that its consideration is opposed to pubfoi policy. Under the Indian Law, offences are divided into three categories, some are compoundable between the parties, some are compoundable with the leave of the Court and some are non-compoundable. In the present case, it is common ground that amongst tlie offences charged by respondent No. 1 against the appellant and others were included non-compoundable offences, and so, we are dealing with a case where, according to the appellant, a criminal process was issued in respect of non-compoundable offences and the withdrawal of the criminal proceedings was a consideration for the agreement of reference to which the appellant has put bis sigµature.

Whether or not the appellant y' - . 38,Q.R. .693 proves his case, we will consider later; but the true lega.I position on this point is not in doubt. If it JIMI V. Narasimha Raju is shown that the considera.tia.n for the arbitration agreement was the withdrawal and the non-prosev. 6urumurthy Ro;u cution of the criminal complaint, then the provi· <JajmdragadtarJ. sions of e. 23 of the Indian Contract Act would be attracted. The principle underlying this provision is obvious. Once the machinery of the Criminal Law is set into motion on the alli:igation that a noncompoundable offence has been committed, it is for the criminal courts and criminal courts alone to deal with that allegation and to decide whether the offence alleged has in fact been committed or not. The decision of this question cannot either directly or indirectly be taken out of the hands of criminal courts and dealt with by private individuals.

When as a consideration for not proceeding with a criminal complaint, an agreement is made, . in substance it really means that the complainant · has taken upon himself to deal with his complaint and on the bargaining counter he has used his nonprosecution of the complaint as a considt>ration for the agreement which his opponent has been induced or coerced to enter into. As Mukherjea, J .. has observed in Sudhindra Kumar v. Ganesh Ohandra(1), "no Court of law can countenance or give effect to an agreement which attempts to take the administration of law out of the hands of the judges and put in the hands of private individuals." Therefore, it is clear that if the appellant proves that the consideration for the arbitration agreement was the promi1e by respondent No. 1 not to prosecute his . complaint, then the said consideration would he opposed to public policy and the agreement based on it would be invalid in law.

In this connection. it would be relevant to refer to two decisions of the Privv Council. In Bhowanipur Banking Corporation Ltd. v. Sre,emati Durgesh Nandini Dassi(2) Lord Atkin has obeeryed (1) [19!19) I Cal: 241, 250. (2) A.l.R. 1941 P.c. 95. V . .Nara8imh1J ftaju J.:". Gu1umurthy Raju· f!aJendragadkar J. that "to insist on rep a ration as a consideration for promise to abandon criminal proceedings is a serious abuse of the right of private prosecution . The citizen who proposes to vindicate the criminal law must do so whole--heartedly in the interests of justice, and must not seek his own advantage." In dealing with the-question as to whether the consideration for the agreement is opposed to public policy or· not, it is ·immaterial that the debt in respect of which an agreement is made for the illegal consideration was real, nor is it necessary to prove tha,t a crime in fact had been committed.

All that is necessary to prove in such a case is "that each party should understand that the one is making his promise in exchange or part exchange for the promise of the other not to prosecute or continue prosecuting". In that casi>, a mortgage bond was executed by the respondent a3 a part of the consideration for a· promise by the· bank to withdraw criminal procee-' dings instituted by it against the mortgagor's husband, and it was held by the Privy Council that the mortagage bond was invalid. In dealing with the question that the debt which was a consideration for the mortgage bond was· real, their J.ordships observed that the existence of the debt made no difference at all because whether or not the debt was real, the· mortgage had been executed for a consideration which was opposed to public policy · and so, it became illegal and void. In Kamini Kumar BaBu v. Virendrq, Nath Basu,(1), their Lordships held that "if it is an implied term of a reference to arbitration, and of an 'ekrarnama' pursuant to an award, that a complaint that a non-compoundable offence under the Indian Penal Cod_e has been committed shall not be proceeded with, the consideration is unlawful on the ground of public policy, and the award and ekrarnama are, (I)

[ 1930] L.R. 57 I.A. 117. 3S.C.R. therefore, unenforceable, and this would be so irres· pective of whether in law a prosecution ha!! been commenced or not". In that case, the criminal case was withdrawn the day after the execution of the inpugned agreement, but it appeared that prior to the executipn of the agreement, there had been an understanding between the parties that they would ~ithdraw . from their re.spective criminal cases. Sir Binod Mitter who delivered the judgment of the Board observed that in such cases, it is unlikely that it would be expressly stated in the ekrarnama that a part of its consideration was an agreement to settle the criminal proceedings. It would, however, be enough for the parties which impeached the validity of the agreement to give evidence from which the inference necessarily arises that part of the consideration was unlawful.

It is in the light of these decisions that we will have to consider the question as to whether the appellant has succeeded in showing that the consideration for the agreement of reference in the present case was the withdrawal and non-prosecution of the criminal complaint filed by respondent No. 1. We will first refer to the complaint filed by. respondent No. 1 against the appellant ancl others. In this complaint it was alleged that all the accused persons conspired with each other with intent to defraud respondent No. 1 of a half of his 2 annas share in the partnership assets and altered the Mcount books of both the Rice and Oil Mills, and the joint business in. material parts by inserting the name of the 4th respondent by the side of respondent No. l's name fo order ·to make· it appear that the 4th respondent also owned the . two annas share along with or jointly with respondent No. 1. It is on the basis of this allegation that respondent No. 1 complained that the accused persons inoludiag the appellant had committed offences under ss.

420, 465, 468 and 477 1fl62 V. Narasimha Roj1< V. Gurumurt1!J.Raju Gajendragadlar J. V. No rasimha Ra-ju V. Curwnu1th)' Haju Gaj1ndragadkar J. read . with seotions 107 and 120.B. I. P. C. It is common ground that prooess was issued on this complaint and it stood adjourned for hearing to December 30, 1943. On Deoember 30, 1943, the arbitration agree· ment was entered into by the parties. This doou· ment consists of eight clauses. It purported to authorise Mr. Murty to determine whether 2 annas share belonged exclusively to respondent No. 1 or jointly to respondents 1 and 4; and it also authorised him to determine incidental and subsidiary issues in respeot of respondent No. l's o1(tim for his share in the profits of the partnership. Clause 5 of the agreement provided that the arl>it. rator was to determine who and in what manner are to bear the costs incurred by both the parties in Criminal Case No. 139 of 1943 on the file of Berham. pur 2nd Officer's Court, according to justice and injustice.

In other words, the arbitrator had to decide not only the civil dispute between the parties resulting from the claim made by respondent No. 1 to two annas share in the profits of the partnership, but also to determine the dispute about the expen. sea in the oriminal proceedings. Let us now examine the evidence which shows the circumstances under which the arbitration agreement oame to be exeouted. Mr. Murty whd has been examined for ri>spondent No. 1 stated that he did not suggest any term to be embodied in the fair draft and he could not say at whose instructions the draft was written because it was written in his absence. Then he added that the parties gave the Muchalika to him first and as he was returning with it, thf'y told him that they would intimate about the Muchalika to the Criminal Court and let him know court's orders thereon.

He also pl~aded that he could not say if the 1st respondent had any idea that after the Muchalika was given to him, he would v !S.C.R. withdraw the case. The Muchalika has been attested by two witnesses both of whom have given evidence. in this case. Sitharamaswamy is one of the two attesting witnesses. He has stated that the parties had gnthered at about 1 or 2 p. m. in the Court hall of the Sub-Collector's Court where the criminal case was going to be heard. 'I he document was executed · to bring the crimial case between the parties then pending to a close. After the document was executed, the criminal case was got cancelled. The lst ~espondent definitely stated that he would withdraw the case and accordingly; he went to the criminal court and got the case dismissed. Thereafter, the original of the document was handed· over to the arbitrator. It is significant that this witness who has attested the document was one of the witnesses called by respondent No. 1 in the · criminal case filed by him against the appellant and others and in fact he had come to the criminal court to give evidence on. that day.

To the same effect is the evidence of the other attesting witness Jayachandra Padhi. After the agrefment was scribed and duly exe<:>uted, respondent No. 1 told the. criminal court about his inability to prove his case and accordingly the case was dismissed. Then all the parties gathered on the court verandah and the appellant handed over the fair copy of the agreement to the arbitrator. According to this witness, the reference was executed in order that respondent No. 1 should withdraw the criminal case and the arbitration should settle their dispute. This witness expressly stated that the condition was that after the criminal case was withdrawn, the reference was to lie handed over to the arbitrator. The other witness examined by the appellant is Appa Rao. He refers to the circumstances under which the arbitration agreement was executed and adds that the appellant kept the final draft with V. Nar.sl•M.• Ihi}u; V. Gurumurthy. R•j , Gaje. drag1dki#i ,J. 1~02 V. Nar:zsimlra Ro;"u v' ·1 Y. Gurumu·rzhy ·Raju Gajendr11gad kar J. him and handed it over to the arbitrator after the criminal complaint was dismissed.

It appears that Appa Rao was nonfronted with his prior statement made in the proceedings started by the appellant to remove the arbitrator for miMonduct. We will have occasion to refer to this statement later on. The appellant has stated on oath in support of his case that respondent No. 1 agreed to with draw the criminal case and not to prosecute it an it was in consideration of that promise that hn entered into the arbitration agreement. In hi0 evidence he has added ·that after the criminal com plaint was fiiled, the partnership books were seized and the joint business did not continue. Ac0ording to him, Mr. Murty offered to effect a. compramise if a reference was made to him and get the case withdrawn. It was at that stage that pleaders of both the sides prepared the draft of the agreement. Then the witness has narrated how respondent No. 1 went to the court and stated that he was unable to prove his case whereupon the complaint was dismissed.

Then the parties came out and the agreement was delivered over to Mr. ·Murty. The evidence of this witness clearly shows that the agreement was executed by him because he was promised that the criminal case would be taken out if he executed the agreement. That is the evidence adduced by the appellant in support of his case that the consideration of the agreement was the promise.of respondent No. 1 not to prosecute his case and that in. fact the document was given over to the arbitrator after the promise was carried · out by respondent No. 1 and the criminal case was dismissed. Respondent No. I in his evidence has not made any categorical statement to the contrary. He has admitted the circumstances diRclosed by the appellant and his witnesses. as to the place 3 s.c.R. where, the time when and the manner in which the agreement came to be executed.

He only stated that he could not say whether the talk of reference to the arbitrator in question cropped up before or after the dismissal of the case. He admits that be pleaded his inability to prove his aase in the criminal court and that the arbitrator then entered upon arbitration. It would th us be seen tliat the evidence adduced by the A.ppellant is cogent, statisfactory and categorical, whereas the evidence of respondent No. l and of the arbitrator examined by hiin is not categorical to the contary and . at best is ambiguous. Eeven according to respondent No. I and the arbitrator, the agreement was drafted within the premises of the criminal court just before the criminal case was taken out. In other words, the place where the agreement was drafted and the time at which it was drafted, are significant.

It was known that the criminal case would be heard in the afternoon of December 30, 1943, and so, the sequence of events clearly indicates that the parties entered into an understanding, the essence of which was that respondent No. l was to get the criminal case dismissed and as a consideration for that, the appellant and the other accused persons had to agree to refer their dispute to the arl:iitration of Mr. Murty. In this connection, it is very significant that the final draft which was executed and attested w~s handed over to the arbitrator after the criminal case was withdrawn. Therefore, the circumstances attending the execution of the document and the sequence of events disclosed in the evidence clearly show that the Promise of respondent No, l to withdraw and not to prosecute the criminal case was a considertion for which the applelant and his ? friends entered into the arbitration agreement.

This is not a case where it can be reasonably said that the withdrawal of the criminal case may have V. Naras ;mtio Rflju V. Gurumuthy Raju Gajer.drarrCcar J. ·Y. .N .,~mlr• B•Ju '· Gu.WTMlhy R,ju Gajtn/ra:adk.ar J · been a motive and not the consideration for the impugned transaction. Tb.en again cl.5 of the agreement corroborates the appllant's case that the withdrawal and nonprosecution of the criminal complaint was a consideration for the arbitration agreement. That is why the arbitrator was authorised to decide as to who and in what manner are to bear the expenes incurred in criminal proceedings. The intimate conn0ction of the criminal proceedings and their withdrawal with the arbitration agreement is thus clearly established. That· is another factor which supports the appellant's case. It has, however, been urged by Mr. M. S. K. Sastri for responrlent No. 1 that the agreement. was entered into because Mr. Murty offered to settle the disputes between the parties and the parties accepted his advice.

It does appear that Mr. Murty had stood surety for the appellant in ·the criminal case for his due appearance in the criminal court whenever the case would be fixed for hearing and Mr. Sastri relies on the statement made by the appellant that Mr. Murty offered to effect a compromise if a reference was made to him and get the case withdrawn. The argument is that it was a.t the suggestion of Mr. Murty that the whole incident took place and so, there can be no scope for. arguing that respondent No. 1 promised to withdraw th\l criminal case as a consideration for the execution of the arbitration agreement. This argument cannot be accepted because Mr, Murty himself does not admit that he offered to mediate and parties thereupon accepted his advice. According to· Mr. Murty he was not present when the agreement was written and he in fact does not, know who dictated the contents of the agrt ement.

But apart from this consideration, -"'. even the statement made by the appellant on which the argument is founded shows that the proposal was clear~oriminal case had to be withdrawn a not to be prosecuted and the agreement of reference had to be made. These two. steps were related to each other as cause and effect, or one step was or consideration and the other was the acceptance of the proposal to enter into the arbitration .agreement. 1 Therefore, we do not see how it would be possible to repel the· appellant's argument that the consideration for the arbitration agreement was the promise of respondest No. I not to prosecute his criminal complaint. It is true that both the trial Court and the High Co11rt have rejected the appellant's contention and normally this Court is reluctant to interfere ~ with a concurrent finding made on an issue like this by both the courts below.

But in this case, thb judgment of the High Court shows that unfortunately the High Court has not considered· the relev'l.nt evidence bearing on the point. Its conclu-· sion rasts mainly on two considerations. It has criticised the appellant for not having taken this • point when the appeJlant applied for thP removal of the arbirator by his petition M. J. C. 34 of 1944, and so, the High Court took the view that· the present plea had been taken at a very belated stage. In our opinion, this criticism is not well· founded. Whether or not the appellant could have taken this plea by another proceeding under some provision of the Arbitration Act is a different matter. _... But it would be erroneous to find fault with the appellant for not taking this point in an application made by him for removing the arbitrator on the ground of his misconduct.

If the appellant sought the removal of the arbitrator on the ground of his misconduct, it would not have been relevant or . material in that context to allege that the arbitra- Jtiou agreement itself was invalid. In any case, the faiJure of t~e appellant to take this point o~he:rwise earlier proceedin~ woulq 19.62 V. Nara1jmh• lt."!1u- ·v,_ V. Guru1'1urtky ••Ju GaJenllragallkiJr J .• Y .Varai·imtra Raju .•·v. V. Gtu'8Ut1,hJ Raju not justify the rejection of the point without considering the merits of the evidence led by the appellant in support of it. and that substantially is what the High Court has purported to do in this The other consideration which see.ms to have influenced the High Court proceeded from the fact that Appa Rao who has been examined by the appellant in the present proceedings had stated in the proceedings which were taken by the appellant by his application to remove the arbitrator that after respondent No. 1 had deposed in the criminal case, the reference to the arbitration was made, and the High Court apparently thought that this prior statement of Appa Rao is so completely inconsistent with the present· version set up by the appellant and his witnesses that it should for that reason alone be rejected.

This view is obviously erroneous. What Appa Hao stated in the earlier proceedings is wholly consistent with his evidence in the present proceedings as well as the evidence 11iven by the appellant and hie other witnesses. The reference in law and in fact was made only when tlie arbitration· ' agreement duly executed was handed over to the arbitrator and this happened after the criminal case was dismissed. That is the appellant's version even now. This is not inconsistent with the other part of the appellant's version which deals with the negotiations between the parties which preceded the drafting of the arbitration agreement, the preparation of the draft and its final engrossment all of which took place before the criminal case was called out. All the witnesses of the appellant have said that the draft was shown to the arbitrator, but the final ageement was given to his after the criminal case was dismissed.

Thus, what the High Court thought to be a serious inconsistcney between the,..t present stor,Y deposed to b,Y Appa Rao aqd b,i~ SUPREME COURT H,EPORTS · past statement does not -amount to any inconsisttency at all. It is to be regretted that the High Court did not examine the rest of the evidence carefully before it came to the couclusion that the ajlpellant's challenge to the validity of the arbitrittion agreement under s. 23 could not be sustained. It is because of this infirmity in the judgmeny of the High Court that we thought it necessary to examine the evidence ourselves. The said evidence, in our opinion, clearly supports the appellant's case and· so, it must bfl held that the arbitration agreement 1 executed by the parties on December 30, 1943, is invalid under s. 23 of the Indian Contract Act, because its considretion was opposed to public policy. The result is, the two appeals are allowed, the application made by respondent No. 1 (M. J.C. 105 of 1946) for passing a decree in terms of the award is dismissed u.nd the application made by the appellant (M. J. 0.

No. 8 of 1947) for setting aside the award is allowed. The appellant would be entitled to his costs from respondent No. 1 throughout. One set of hearing fees. Appeals allowed. 1962. V. NaraJi'llha Raju V. Guru'llurtlry Raju Gajendragaikar J,