F. M. Crossley v. Kashi Prasad Saraf — 1979 DIGILAW 309 (CAL)

JUDGMENT The subject matter of challenge in this application is an award dated the 19th July, 1978 passed by the Joint Arbitrators, Sri T.K. Ghose and Sri R.P. Banerji. It appears that by an order dated the 1st June, 1976 made by this Court, Sri T.K. Ghose and one Sri Chandan Banerjee, as he then was, were appointed, by consent of the parties, the Joint Arbitrators on the terms and conditions mentioned therein. By the said order, the Joint Arbitrators were directed to go into the question of accounts, goodwill and assets and all withdrawals of the partners with effect from 1967 until the date of the said order. By the order dated 21st June 1976, the Joint Arbitrators were further directed to go into the question of the said accounts including the goodwill and assets, if necessary, with the help of auditor to be appointed by the Joint Arbitrators and the Joint Arbitrators were directed to find out, if any amount was due and payable to any of the partners and to award accordingly. Thereafter meetings were held by the Joint Arbitrators. After the elevation of Sri Chandan Banerjee, one of the Arbitrators to the Bench of this Court, by an order dated the 20th July, 1977, Sri R.P. Banerjee was appointed in his place and stead to act as Joint Arbitrator with Sri T.K. Ghose. The Joint Arbitrators thereafter had held diverse sittings and the time to make the award was ultimately extended by the order dated 19th July, 1978 for three months, The Joint Arbitrators recited in the said award that the parties had filed their statement of claim as also the counter statement of facts and thereafter stated as follows: "NOW we the undersigned Joint Arbitrators with the assistance of Messrs. Dilip Kumar Surjit and Associates, Chartered Accounts appointed by us in terms of the said order have gone into the question of accounts, goodwill and assets and found that a sum of Rs. 1,53,472.18 p. is due and payable to Mrs. Fonda Markeska Crossley by the respondents herein and we award that the respondents to pay Mrs. Fonda Markeska Crossley the said sum of Rs. 1,53,472.18p." 2. In this case, the award has been challenged by the petitioner, Mrs. Fonda Markeska Crossley on various grounds. Before me, three grounds were pressed. 1,53,472.18 p. is due and payable to Mrs. Fonda Markeska Crossley by the respondents herein and we award that the respondents to pay Mrs. Fonda Markeska Crossley the said sum of Rs. 1,53,472.18p." 2. In this case, the award has been challenged by the petitioner, Mrs. Fonda Markeska Crossley on various grounds. Before me, three grounds were pressed. It was, firstly, urged that there was violation of the principles of natural justice, in the sense, that the learned advocate, instructed by the learned instructing advocate, on behalf of the petitioner was not allowed to make submissions before the Joint Arbitrators. It was, secondly, urged that the Joint Arbitrators took into consideration the report of the auditor, Messrs. Dilip Kumar Surjit and Associates, Chartered Accounts. But such appointment was made without the knowledge and consent of the parties and, in any event, no opportunity had been given to the parties to have a copy or have knowledge of the contents of the said report of the Chartered Accountants and to make submissions on the points raised in the said report. It was, thirdly, urged that by the specific order, the Joint Arbitrators were directed to go into the specific questions, viz. (a) to the question of accounts. (b) goodwill and assets and (c) all withdrawals by the partners. It was urged that the award, on the face of it indicated that the Joint Arbitrators had not taken into account all these aspects. In any event, the aspects which the Joint Arbitrators had taken into account would be apparent from the award itself and from therein it would appear that the Joint Arbitrators had not considered the withdrawals made by the partners which was a specific issue directly referred for consideration by the Joint Arbitrators. 3. So far as the first contention is concerned, viz. exclusion of the advocate for the petitioner to make his submissions, it has been alleged in paragraph 16 of the petition that at the meeting held on 8th May, 1978 the Joint Arbitrators for the first time, much to the surprise of the petitioner, insisted on the petitioner, to file her power of Attorney and/or Vokalatnama and further insisted that until the same was filed, the learned counsel appearing on her behalf could have no locus standi to appear before the Joint Arbitrators. It was submitted thereafter in paragraph 18 that although the filing of the Vokalatnama was not necessary but to expedite matters the petitioner filed a Vohlatnama in favour of Sri Sakshya Sen, Advocate at the Arbitrators' meeting held on the 12th May, 1978. According to the petitioner, however, the Joint Arbitrators refused to accept the said Vokalatnama, and did not allow the learned counsel instructed by Sri Sukshya Sea to make submissions on the ground, that there was no authority of Sri Sakshya Sen to instruct counsel in this matter. Factually this position in not disputed on behalf of the respondent in this application. But it is stated on behalf of the respondent that there was insistence an the part of the petitioner for filing of the Vokalatnama or the Power of Attorney in favour of Sri Sakshya Sen on the ground that previously certain previous solicitor or advocate on record was appearing for the petitioner and therefore unless Sri Sakshya Sen had proper authority it was not possible for the Arbitrators to allow-anybody instructed by Sri Sakshya Sen to appear at the proceedings before the Joint Arbitrators. So far as the learned-Arbitrators’ insistence on the filing of Vokalatnama or letter of authority by the petitioner is concerned, in order to enable the learned advocate to appear or to instruct somebody to appear on her behalf, in my opinion the learned Arbitrators were not in excess of their jurisdiction to insist on such authority. Whenever a party chooses to appear through a lawyer and specially in a case, where on a previous occasion, there was another lawyer appearing for the party concerned, the Joint Arbitrators, in my opinion, in exercise of prudent practice entitled to insist on a proper authority on behalf of the parties to appear. But in this case what had happened subsequently was rather unfortunate because, it appears, even though the Vokalatnama was filed, one Sri Sivaji Sen instructed by Sri Sakshya Sen was not allowed to make his submissions because, according to the learned Arbitrators the previous advocates on record M/s. R.N. Dutt & Co. had not given their consent and the petitioner had not obtained the change of his advocates on record. This position is clear from the minutes of the meeting held on the 12th May, 1978. had not given their consent and the petitioner had not obtained the change of his advocates on record. This position is clear from the minutes of the meeting held on the 12th May, 1978. This position for insisting on a change or consent to a change from the previous advocates on record, M/s. R.N, Dutt & Co. in the arbitration proceedings by the learned Arbitrators, in my opinion, was wholly unwarranted. After coming into operation of the Advocates Act and the amendment to the High Court Rules, it is doubtful whether such a practice could be insisted on for a change in the matter of representation before the Court. But I need not go into this aspect of the matter. Even assuming in a proceeding in Court, such a procedure was still prevalent and was required to be fulfilled, in my opinion, when there was a proper and valid power of attorney and there was nothing to show that the power of attorney was not given by the petitioner to exclude representation of the petitioner's case on the ground that, according to the practice of this Court, in order to represent the client, where the client was being represented on a previous occasion by a previous solicitor or by a previous advocate on record, for a change, consent from them was not proper and unwarranted by any procedure under the Arbitration Act. It is evident that thereafter the Joint Arbitrators proceeded with the matter without; the assistance or representation made on behalf of the petitioner and made tin award. In my opinion, there certainly has been violation of the principles of natural justice in the procedure followed by the Joint Arbitrators. 4. But here I cannot leave this aspect of the matter because rather an unfortunate situation is recorded in the minutes of the meeting held on the 12th May, 1978. It is recorded as follows ; "Mr. In my opinion, there certainly has been violation of the principles of natural justice in the procedure followed by the Joint Arbitrators. 4. But here I cannot leave this aspect of the matter because rather an unfortunate situation is recorded in the minutes of the meeting held on the 12th May, 1978. It is recorded as follows ; "Mr. Sivaji Sen, at this stage, grew furious and jumped out of his seat with a loud bang on the table, made certain un-parliamentery remarks against us 'Dammed Arbitrators' and rushed out of the meeting shouting at the top of his voice in the presence of the parties present at this meeting." If this has happened, it is not only atrocious and ill-mannered but also a conduct unbecoming of a man, who has chosen himself to represent himself as a lawyer to appear before an adjudicator. I could not conceive that any lawyer appealing before a forum either a Court or an adjudicator or an arbitrator could have chosen to use such an undignified language, if he did, as it was alleged and there was nothing in record to show that he did not. I hope that the matter of this nature, if it did happen, should be a matter of disgrace to all the members of the legal profession to which this gentleman claims to belong. Be that as it may, this conduct on the part of the Advocate does not disentitle the party of his or her right of representation. It was urged that the time was short. It was also urged that, as in this case, there was previous representation by other advocates on record the arbitrators thought it prudent, in order to make sure, to insist on a consent from M/s R.N. Dutt & Co. for the change on the ground of the time being short, the party could not be allowed to be heard. If adjournment was being sought, the Arbitrators were within their jurisdiction to refuse the adjournment. If the advocate or the lawyer was there properly instructed to appear for the client, the Arbitrators were in error, in my opinion, not to allow him to make submissions on this aspect of the matter. It was, further, stated that there was previous representation by other advocates on record. That may be so. But at that meeting there was nobody else claiming to represent the petitioner. It was, further, stated that there was previous representation by other advocates on record. That may be so. But at that meeting there was nobody else claiming to represent the petitioner. Therefore, this procedure, which is normally followed specially in the Original Side of this Court and on which the Arbitrators sought to rely, in my opinion, was wholly unwarranted in the arbitration proceedings and had resulted, in the facts and circumstances of the case, in the violation of the natural justice and denial of opportunity to represent the case of the petitioner. 5. The second ground upon which this award was challenged, as I have mentioned before was, that Dilip Kumar Surojit and Associates, Chartered Accountants had been appointed and upon the report of this body the Arbitrators had proceeded to make the, impugned award. On this aspect, two different arguments were made. It was urged that the Arbitrators were in error in making the appointment without the consent or without the knowledge of the parties concerned. This contention I am unable to accept. In view of the terms of the order appointing the Arbitrators, which permitted them to appoint such auditor or take such assistance, as they considered necessary, I am of the opinion that it cannot be said that in appointing a body of Chartered Accountants to assist the Arbitrators in adjudicating the matter, the Arbitrators acted illegally or in violation of the principles of natural justice. It is further evident from the letters which are mentioned in the affidavit that the petitioner knew about this appointment. But the second aspect, on which the petitioner urged, was that even if the appointment was made without the consent of the party concerned or without the knowledge thereof of the party concerned, it was submitted that the report should have been made known to the parties before the Arbitrators accepted or proceeded to make their award on the basis of the report. This contention, in my opinion must be accepted. The arbitrators were free, as I conceive the position, to rely on some report of a specialist or body who are competent to advise. This contention, in my opinion must be accepted. The arbitrators were free, as I conceive the position, to rely on some report of a specialist or body who are competent to advise. But, before they do so, the Arbitrators in consonance with the principles of natural justice should give a copy of the report or at least a gist or summary of that report to the parties concerned and allow them to make any submissions or suggestions or their comments on the report and thereafter, the Arbitrators can proceed to make the award after taking into consideration the report or the suggestions or the submission of the parties, if they so choose to make. It is undisputed that no copy of the report was given and it is not in dispute that no gist of the report was made known to the parties concerned. If that is the position, then, in my opinion, the Arbitrators had proceeded on a material which was not known to the parties and on proceeding in the manner, as they did, the Arbitrators committed an error in the sense violating the principles of natural justice and therefore the a ward liable to be quashed on this ground. 6. The third aspect of the attack on the award was, as I have indicated already, that the order of reference specifically directed the Arbitrators to take into consideration certain matters, viz. (a) the question of accounts, (b) goodwill and assets and (c) all withdrawals by the partners. The Arbitrators after setting out the facts and after noting the fact that they had got the assistance of M/s. Dilip Surojit & Associates and after going into the question of accounts, goodwill and assets they found that a sum of Rs. 153,472.81 was due and payable to the petitioner, the Arbitrators awarded accordingly. It was urged that the Arbitrators had not taken into account the other aspect, viz. the withdrawals made by the partners. In considering the question of this nature, only jurisdiction that the Court possesses is to examine whether there is any error apparent on the face of the award. Here, there is no legal proposition, as such. It was urged that the Arbitrators had not taken into account the other aspect, viz. the withdrawals made by the partners. In considering the question of this nature, only jurisdiction that the Court possesses is to examine whether there is any error apparent on the face of the award. Here, there is no legal proposition, as such. Here, however, there is a mention of the .factors which were required to be considered by the Arbitrators and then in the concluding or the awarding portion, there is a mention of the factors which the Arbitrators had taken into consideration. The Arbitrators were not obliged to state what factors the Arbitrators had taken into consideration. In my opinion, reading the award, as a whole, when the Arbitrators had in their mind the specific points on which the reference had been made, the non-mentioning of the factors of withdrawals in the awarding portion does not ex-facie establish that the Arbitrators had not taken that factor into consideration. If that is the position, then, in my opinion, it cannot be said that there is any error apparent on the face of the award. After all the award has to be read, as a whole. If the Arbitrators had in their mind the factors which they were required to consider and if they did not specifically mention in the recital portion the other factors which they considered were due to inadvertence. The recital portion makes it quite clear that though they had taken these factors into consideration they did not refer to those specific factors. The other view, in my opinion, would be really taking a technical view in reading the award of the Arbitrators. Therefore, I am unable to accept the contention urged on behalf of the petitioner that the award was bad for not considering all the matters referred to the Arbitrators for adjudication. The award would have been liable to be set aside for the reasons, I have already mentioned hereinbefore. 7. But this does not solve the question in this application because in connection with this application the question of limitation has arisen. Now in order to appreciate this point, I have to refer to certain proposition of law. Under Article 119 of the First Schedule of the Limitation Act, 1963, two periods of limitation are provided. 7. But this does not solve the question in this application because in connection with this application the question of limitation has arisen. Now in order to appreciate this point, I have to refer to certain proposition of law. Under Article 119 of the First Schedule of the Limitation Act, 1963, two periods of limitation are provided. Under Clause (a) of Article 119, there is a period for filing in Court of the Award and the period is 30 days from the date of the service of the notice of making of the award. Under Clause (b) of Article 119, there is another period of limitation, that is, for making an application for setting aside the award or getting an award remitted for reconsideration and that period is 30 days from the date of the service of the notice of the filing of the award. In this case, the award was made on the 18th July, 1978 and in the subsequent applications, appearing in the List where more or less the same facts are involved, the award was made on the 19th July, 1978. The parties had notice of the making of the award by the Arbitrators more or less at that time. The petitioner claims that the notice for filing of the award was given from the Court under Section 14(2) of the Arbitration Act, 1940 on the 26th March, 1979. This application for setting aside of the award was made on the 27th February, 1979. In this context two controversies were canvassed. On behalf of the respondent it was urged that the filing of the award was bad and, as such, there was no award filed in Court firstly because the award was not stamped by the Arbitrators and secondly because the stamp, whoever has put in that stamp, was put in long after the expiry of the 30 days of the service of the notice for making of the award. Therefore, there was no award filed in Court which could be set aside. In order to appreciate this aspect it may be necessary to refer to certain section of the Arbitration Act, 1940. 8. Therefore, there was no award filed in Court which could be set aside. In order to appreciate this aspect it may be necessary to refer to certain section of the Arbitration Act, 1940. 8. Section 14 of the Arbitration Act provides that : "(1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award. (2) The arbitrators or umpire shall, at the request or 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 charges due in respect of the arbitration and award cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. (3) Where the arbitrators or umpire state a special case under clause (b) of section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of, the award. 9. Section 17 deals with the passing of the judgment in terms of the award and is in the following terms:- "Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the court shall after time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award." 10. Section 30 deals with the setting aside of the award. I have set out the period of the limitation of the filing of the award, On behalf of the petitioner it was urged that an award could have by virtue of section 14 been filed only by the Arbitrators. Section 30 deals with the setting aside of the award. I have set out the period of the limitation of the filing of the award, On behalf of the petitioner it was urged that an award could have by virtue of section 14 been filed only by the Arbitrators. In this case the Arbitrators had merely forwarded the award to this Court without stamping them or without-putting in the requisite stamps. The stamps were put in later on by the petitioner on the award. The petitioner had originally at one point of time given notice to the respondents that she would mention before this Court for obtaining direction, but there was no mention and no direction was in fact obtained. She had unilaterally put in the stamps. It was therefore, urged on behalf of the respondents that there was no proper filing because it was the Arbitrators and Arbitrators alone or a party at the direction of the Court could have put in the stamps and filed the award. In any event, it was urged that the stamps could not have been put in as in this case purported to have been done beyond 30 days of the service of notice either on 18th or 19th July, 1978 of the making of the award by the Arbitrator. So far as this aspect of the matter is concerned, my attention was drawn to certain decisions of this Court to which I shall presently refer. 11. It appears that the stamps were put in on 25th November 1978. To complete the narration of events I must also note that it is the case of the petitioner that the petitioner had no knowledge of the contents of the award and unless, according to the petitioner, the petitioner was aware of the contents of the award it was not possible for the petitioner to make any application for setting aside of the award on the ground of error apparent on the face of the award or any other ground. The petitioner, therefore, applied for a certified copy and the petitioner obtained such certified copy either on or about 19th January, 1979 but when the application was made has not been stated. The notice, however, issued by the Registrar of this Court of filing of the award was served on the 26th of March 1979 as I have already indicated before. 12. The notice, however, issued by the Registrar of this Court of filing of the award was served on the 26th of March 1979 as I have already indicated before. 12. In this case my attention was drawn to the decision in the case of (1) I.G.H. Ariff and others v. Bengal Silk Mills Ltd. and another reported in AIR 1949 Calcutta 350. Their Mr. Justice S.R. Das, as the learned Chief Justice then was, held that the applicant through her attorneys issued a notice of motion on 22nd November, 1944 intimating that an application for setting aside an award will be made on 29th November 1944. The award was filed in Court on 25th November 1944. On 23rd November 1944, however, counsel for the applicant filed an application for an interim injunction pending the application for setting aside the award. It was held that the taking out of the notice of motion was not the making of an application for setting aside the award but was a mere warning that an application would be made on a future date named in the notice. It was, further, held that as the application for setting aside the award was actually filed after the filing of the award it could not be considered as premature. The application filed on 23rd November, 1944 not being for setting aside the award was not hit. On certain previous decisions reliance was placed. In that case as I have mentioned before an application for setting aside an award was filed on 23rd November, 1944. The requisition for filing the award was also given on the same date but the award was filed on 25th November, 1944. It was objected that the application was not maintainable as it was filed before the filing of the award. It was held that the delay in the court office should not prejudice the applicant and the award could be directed to be filed nunc pro tunc and dated as on 23rd November 1944. It was objected that the application was not maintainable as it was filed before the filing of the award. It was held that the delay in the court office should not prejudice the applicant and the award could be directed to be filed nunc pro tunc and dated as on 23rd November 1944. There the learned Judge had observed in answering the question at page 356 as follows :- "The prayer to which I have referred and which is set out in Clause (2) of the notice of motion raises a question as to the validity, effect or existence of the arbitration agreement and can therefore be sought for in an application to this Court where the award may be filed even though the award had not been actually filed at the date of the application for setting aside the award is to be deemed to have been made on 23rd November 1944, when the interim injunction was issued, must it be dismissed on the ground that the award had not been filed prior thereto although the award had, in fact, been filed two days latter on but before the disposal of the application? It is argued by the learned counsel for the respondent company, on the analogy of the principle that the causes of action in a suit must be antecedent to the institution of the suit, that the cause of action for an application to set aside the award must be antecedent to the making of the application and that there is no cause of action for setting aside an award until the award has been filed in Court. I do not agree that the filing of the award is any part of the cause of action for setting aside the award. The grounds for setting aside an award are set out in Section 30, Arbitration Act. As soon as the conditions there laid down are fulfilled, the cause of action for setting aside the award is complete. Is the actual filing of the award in Court which has undoubtedly been held in the two decisions cited above, to be necessary for maintaining an application for setting aside the award to be also regarded as a condition precedent, the non-fulfilment of which cannot be cured by subsequent filing of the award? Is the actual filing of the award in Court which has undoubtedly been held in the two decisions cited above, to be necessary for maintaining an application for setting aside the award to be also regarded as a condition precedent, the non-fulfilment of which cannot be cured by subsequent filing of the award? Is it a condition precedent like leave under Clause 12, Letters Patent, which must be obtained before the institution of the suit or is it a mere condition like leave to sue a receiver or leave under Order 2 Rule 2 or Order 2 Rule 4 which may be obtained at any time before judgment? I do not see why the defect due to non-filing of the award at the date of the application cannot be cured by the filing thereof before the disposal of the application." 13. This observation of Mr. Justice S.R. Das was considered in a recent decision of this Court reported in AIR 1976 Cal. 291 by Mr. Justice Dipak Kumar Sen in the case of (2) Federal Republic of Germany v. S. Dey & Associates and another. There on the 15th September, 1972 the petitioner received a letter dated the 9th September 1972 from the respondent No. 2 stating that the respondent No. 2 had made an award as aforesaid and had filed the same with the Registrar, High Court, Original Side, Calcutta. But the learned Judge noted at page 293 that the award had only been transmitted to the office of the Registrar, High Court, Original Side, Calcutta and that the same had not yet been filed. The award was simply transmitted to the Registrar for assessment of necessary fees and stamps, and in the premises, this application was premature and liable to be rejected. The learned Judge noted in that case, as in the instant case before me, that the Arbitrator had in fact forwarded the award to the Registrar of this Court. The award was produced to the Court for hearing. It was also apparent that the award had not been filed as of record as the Arbitrator did not forward along with the award any court fees and stamp. But the learned Judge referred to certain decisions of the Supreme Court and observation of Mr. The award was produced to the Court for hearing. It was also apparent that the award had not been filed as of record as the Arbitrator did not forward along with the award any court fees and stamp. But the learned Judge referred to certain decisions of the Supreme Court and observation of Mr. Justice S.R. Das as I have mentioned before and observed at page 299, para 59 that the Arbitrator had sufficiently complied with Section 14 of the Arbitration Act, 1940 in forwarding the award to the Court and further ministerial action necessary to have the said award filed in Court in a regular manner, may be done on behalf of the Arbitrator by the petitioner with the leave of Court. Therefore, the learned Judge directed that the award be directed to be filed and as such set aside the award. Relying on the aforesaid observations it was reiterated before me on behalf of the petitioner that I should also treat in this case, as indeed it was done in other cases when the award had been forwarded by the Arbitrator, but the stamp was put in by the parties later on though without leave of the Court, as to be filed by the Arbitrator and treat as on record and proceed to deal with as such. The other view, it was contended, would be taking a very technical view of the matter, but I may respectfully point out in none of these judgments the limitation under Clause (a) of Article 119 of the Limitation Act was adverted to. If an award is now directed to be treated as filed then it must be considered from the date when the Court makes the order. Now, can the Court make the order without any sufficient cause and without any application under Section 5 of the Limitation Act for filing of the award in Court beyond the time stipulated under Clause (a) of Article 119 of the Limitation Act. This aspect of the matter, if I may say so with great respect, was not adverted to in none of these decisions that was referred to as mentioned before. This aspect of the matter, if I may say so with great respect, was not adverted to in none of these decisions that was referred to as mentioned before. Therefore, here in this case as it was insisted and rightly so that 30 days had elapsed it was not possible even to treat the award to be directed as filed in Court as was done in other two cases pursuant to the order of the Court even though the petitioner at one point of time mentioned the matter did not obtain any direction to that effect. But having regard to the decisions referred to hereinbefore I would have hesitated to carry my point of doubt to the extent of dissent, and it is not necessary for me in this case in the view I have taken on the other aspect of the matter which I shall presently notice. 14. Therefore, proceeding as if the award would be deemed to have been filed when the parties had put in stamp or deemed to have filed the same pursuant to the order of the Court following the ratio of the decisions, the question arises has the application for selling aside had been made within the time stipulated under Clause (b) of Article 119 of the Limitation Act. In this case great reliance was naturally placed on behalf of the petitioner to the fact that the notice was given on 26th or 27th March 1979 and, therefore, it is urged that no question of limitation arises. My attention was drawn to the decision reported in 20 ILR Allahabad 474 in the case of (3) Chatrabruj Das v. Ganesh Ram, which stipulated that the notice was mandatory, also to the decision in the case of (4) Rangasami v. Muttusami, reported in ILR 11 Madras 144 in aid of the proposition than knowledge allunde was not service but service of the notice was necessary and reliance was also placed for the same proposition on the decisions in the case of (5) Kassim Ebrahim Saleji v. Johurmall Khemka, in 43 ILR Calcutta 447 at page 452, 456 and 458, (6) Gurditta Mal and Another v. Firm of Basantalal Pannalal & Others, reported in AIR 1925 (Lahore) 619. On behalf of the respondent my attention was drawn and great reliance was placed on the decision in the case of (7) Kumbha Mawji v. Dominion of India (Now the Union of India), reported in AIR 1953 SC 313 where the Supreme Court has laid down that Section 14 (2) clearly implied that where the award or a signed copy thereof was in fact filed into Court by a party he should have the authority of the umpire for doing so. Where the awards were handed over by the umpire to the party, it could not be assumed that the mere handing over of the awards necessarily implied the authority of the umpire to file the same into Court on his behalf. That authority had to be specifically alleged and proved. Of course, the ratio of this decision is to a certain extent whittled down the facts and circumstances of this case, because in this case the Arbitrators themselves had forwarded the award to the Court. Therefore, there is no question of lack of authority on behalf of the Arbitrators in filing the award. On behalf of the respondents reliance was placed on the decision in the case of (8) Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningasheft and others, reported in AIR 1962 SC 666 . There the Supreme Court reiterated that according to Article 158 of the Limitation Act, the period of limitation for an application to set aside an award under the Arbitration Act, 1940, began to run from "the date of service of the notice of the filing of the award". There was no ground to construe the expression "date of service of notice" to mean only a notice in writing served in a formal manner. When the Legislature used the word "notice" it must be presumed to have borne in mind that it meant not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or if formal notice. When the Legislature used the word "notice" it must be presumed to have borne in mind that it meant not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or if formal notice. Now, relying on this decision it was contended before me that when a party himself as in this case before me had field the award as they claim to have done and if that filing could be considered to be proper filing of the award, then, it should at least be deemed to have notice of the filing of the award from that date and even if that is considered to be the date of the filing of the award then even from that date the period of limitation had expired. 15. On behalf of the petitioner it was, however, emphasised that was the case which was dealing with arbitration in a suit, where the parties were represented by lawyers. That was also a case where the Supreme Court limited its observation in that context in dealing with an arbitration in a suit. That would be apparent, according to the respondent, from the observations of the Supreme Court appearing at paragraphs 9, 10 and 11 of the judgment at pages 668 and 669 of the report. But it may be worthwhile to bear in mind the principles the Supreme Court reiterated and which, in my opinion, the Division Bench of this Court correctly appreciated, later on were as follows:- "Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued." 16. On the other hand, on behalf of the petitioner great reliance was placed on the observation of the Supreme Court in the case of (9) Dewan Singh v. Chambat Singh, AIR 1970 SC 967 , where the Supreme Court held that a notice for filing of the award by the Court was given to the defendant and, therefore, the objection of the defendant was rejected on the ground of limitation. In this connection reliance was placed on the observation of the Supreme Court in paragraph 6 of the decision at page 969. In this connection my attention was drawn to Articles 92, 95, 123, 50 & 115 of the Limitation Act in order to emphasise that the Legislature intended the time to run only upon service of the notice and not from the date of knowledge, and therefore, significantly different expressions had been used in Article 119 Clause (b) in contradistinction to the other Articles, referred to hereinbefore. On behalf of the petitioner, reliance was placed on an earlier decision of Mr. Justice Bachawat in the case of (10) Ganesh Mill v. Keshoram, AIR 1952 Calcutta 10, where at paragraphs 13, 8, 9 and 10 of the decision Mr. Justice Bachawat reiterated that for the purpose of time to run it was necessary to have thee service of the notice and without service of the notice, mere knowledge was not sufficient. My attention was also drawn to Rule 14 of the Appendix XIV of the Rules of the High Court, Original Side, Calcutta framed under section 44 of the Arbitration Act, 1940, which stipulated that notice shall issue to the parties in the prescribed from. Notice in this case was issued intimating that the award was filed on the 26th March, 1979. The above decision of Mr. Justice Bachawat was considered by a Division Bench of this Court and was reversed, not on this point but on another point, namely how to effect service by affixation. But it is significant to note what the Division Bench observed on the decision of the Supreme Court about the knowledge of the service. The above decision of Mr. Justice Bachawat was considered by a Division Bench of this Court and was reversed, not on this point but on another point, namely how to effect service by affixation. But it is significant to note what the Division Bench observed on the decision of the Supreme Court about the knowledge of the service. In the case of (11) Chaturbhuj v. Clive Mills Co., AIR 1964 Calcutta 241 at pages 240 and 241 the Division Bench referred to the case of Nilkantha Sidramappa v. Kashinath Somanna (Supra) and observed as follows :- "Before concluding I must refer to a Supreme Court decision which has been cited before us Nilkantha Sidramappa v. Kashinath Somanna, AIR 1962 SC 666 . In that case, a suit for partition had been filed in Court and was referred to arbitration by consent of the parties. The arbitrators made an award and on August 24, 1949 the Civil Judge ordered that the award be filed. No notice in writing was issued by the Court to the appellant or his guardian intimating that the award had been filed in Court. What happened was, however, that the Court in the presence of the pleaders of the parties mentioned the fact that the award had been filed and the matter was adjourned for objections to be filed. It was held by the Supreme Court that where there was an arbitration through Court there was no provision for giving written notice of the filing of the award. It was sufficient to give verbal notice and therefore, the question of service of such a notice did not arise. In the present case, however, the arbitration was not through Court. Therefore, it does not throw much light on the problem which has arisen in this case, save and except that it is noteworthy that one of the reasons which weighed with their Lordships was that the party complaining of non-service had knowledge of the filing of the award and had taken part in the subsequent proceedings and yet attempted to challenge the same. The challenge was not allowed. This only shows that in such a case technicalities should be avoided." 17. The Division Bench, in my opinion, rightly pointed out that the whole basis of the decision of the Supreme Court was that the technicalities should be avoided. The challenge was not allowed. This only shows that in such a case technicalities should be avoided." 17. The Division Bench, in my opinion, rightly pointed out that the whole basis of the decision of the Supreme Court was that the technicalities should be avoided. In this case what the petitioner is contending is that though she herself had filed the award, she had the knowledge, yet because of Article 119(b) it should be deemed to have the service of the notice of the filing of award, only when the notice under Section 14(2) of the Arbitration Act, 1940 was issued by the Registrar. This, in my opinion, technicality to the utmost extreme because if a person himself files an award and then is allowed to say that his time will run from the notice of the filing of the award, it will be nothing but taking a highly technical view of the matter. This aspect, in my opinion, the Supreme Court tried to avoid, though in a different context in the decision in the case of Nilkantha v. Kashinath referred to hereinbefore and which, if I may say so with respect, has been correctly appreciated by the Division Bench in that light in the decision referred to hereinbefore. It was urged that the limitation should be strictly construed because it acts as curtailment of the rights. But the true policy behind the whole scheme of the Limitation Act is to expedite the matter and not to prolong the litigation. If such a technical view, specially in a matter of arbitration is taken, in my opinion, the whole purpose of the scheme of the Limitation Act would be frustrated. If that is the position, even though a strict view of the provision is taken, in my opinion, the party, who himself has filed the award could not be heard to say that he had no knowledge of the filing of the award and he had the knowledge subsequently when the formal notice was issued by the Registrar of this Court. The petitioner in this case contended that he had to apply for a certified copy and he obtained the certified copy much latter. But he has not mentioned in the petition when he applied for the certified copy. A party cannot get extension of time for obtaining the certified copy by allowing the period of limitation to expire. The petitioner in this case contended that he had to apply for a certified copy and he obtained the certified copy much latter. But he has not mentioned in the petition when he applied for the certified copy. A party cannot get extension of time for obtaining the certified copy by allowing the period of limitation to expire. Though the plea of extending time unilaterally in that way is taken into account or considered, even then this application is beyond time after obtaining the certified copy. In this view of the matter, I must hold that the application is barred by limitation. 18. In the facts and circumstances of the case, the application fails and is, therefore dismissed. There will however, be no order as to costs.