Research › Browse › Judgment

Calcutta High Court · body

1985 DIGILAW 428 (CAL)

Jaydeb Bose v. State of West Bengal

1985-12-12

PRATIBHA BONNERJEA

body1985
JUDGMENT Pratibha Bonnerjea, J. 1. This is an application by the petitioner to grant him leave to file the award signed by the Arbitrator on 21.10.1983. It is alleged in the petition that the arbitrator died on 22.4.1984 before filing the said award. Prior to his death, the petitioner by his letter dated 8.12.1983, requested the arbitrator to file the award and made all the payments and charges due to him. But the arbitrator died subsequently without filing the award. 2. In the affidavit-in-opposition, the respondents alleged that the petitioner was not authorised by the arbitrator to file the award and as such, he was no right to make this application. No party can file an award without the authority of the arbitrator. 3. To appreciate this argument the provisions of Section 14(2) of the Arbitration Act have to be considered. "Section 14(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." 4. The respondents' Counsel submits that the award should be filed either by the arbitrator himself or by some one with his authority. If none of these conditions is fulfilled in a particular case, then section 14(2) of the Arbitration Act will have no application. Hence the present application cannot be treated as an application under section 14(2) of the Arbitration Act. If none of these conditions is fulfilled in a particular case, then section 14(2) of the Arbitration Act will have no application. Hence the present application cannot be treated as an application under section 14(2) of the Arbitration Act. He strongly relies on Panchanan Dey vs. Union of India, 63 CWN 382, in support of his contention, where it has been held by our Division Bench at page 388 as follows:- "Section 14(2) – So far as is material, provides that the arbitrator or umpire shall at the request of any party to the agreement or any person claiming under such party or if so directed by the court, 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. Obviously the section pre-supposes that the arbitrator or umpire is alive and available or at the most, if he is dead or not available, be has before his death or departure from the place authorised a party or some one else to file the award in court on his behalf. But where, as here, the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf, the section can have no application." 5. The respondents' Counsel builds up his argument on the basis of the authority mentioned above and submits that this award cannot be filed at all. He also cites Smt. Hoora & other vs. Abdul Karim, AIR 1970 Rajasthan 22, a single Bench decision, where it has been held at page 25 paragraph 10:- "The court cannot act on an award which has not been filed under the authority of the arbitrators either by a party or by some other agent of the arbitrators." 6. The single Bench in Hoora's case has relied on Kumbha Mewji vs. Union of India, AIR 1953 SC 313 , where it has been held that section 14(2) implies that where the award is in fact filed into court by a party, he should have the authority of the arbitrator or umpire for doing so and that authority has to be specifically alleged and proved. The respondents' counsel invites my attention to the facts of this case and points out that in this application no allegation has been made by the petitioner that he had any authority from the deceased arbitrator to file the award on his behalf. Hence court should not pass any order on this application. He also submits that the present application is barred by limitation under Article 119 of the Limitation Act. 7. It is true that the petitioner in the present application has not alleged that he was authorised by the deceased arbitrator to file the award on his behalf. Then what will be the fate of this application? The Division Bench in Panchanan's case, has however held at page 389:- "The Act, however, makes no provision for a case, either in section 14(2) or elsewhere, where the arbitrator bas died without filing the award or authorizing anyone to file it on his behalf and in that regard there is, it appears to me a clear lacuna in the Act. In those circumstances the question is, must the Act be taken to mean and intend that the only legal way in which an award may be brought up before the court for being filed is that prescribed by section 14(2) and that where the terms of that section cannot be applied and even where its provisions cannot possibly be complied with, the award can be of no use and no judgment on it can be obtained, although there may be no dispute about either its existence or its authority? I find no compelling reason to construe the Act in that stringent sense and, I think, it would be unreasonable to do so. Where section 14(2) could apply, it may be entirely proper to insist on the strict observance of all its terms, but there is nothing in the Act to indicate that it intends the provisions of the section to be exhaustive and thereby to enact that where section 14(2) cannot apply the award cannot be filed at all. I am accordingly of the opinion that where section 14(2) of the Act cannot apply, it constitutes no bar to the filing of an award otherwise than by the arbitrator or umpire concerned or a person authorised by him, if such filing can be directed by some other provision of law and if the circumstances of a case justify such direction. In my view, where section 14(2) of the Arbitration Act cannot apply, the court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure. Section 41(a) of the Arbitration Act provides that subject to the provision of the Act and of the rules made thereunder, the provisions of the Code of Civil procedure shall apply to all proceedings before the Court and to all appeals under the Act. It is true that the code is made applicable subject to the provisions of the Act but if section 14(2) does not apply in a case where the Arbitrator or the umpire has died before causing the award to be filed, as in my view it does not, there can be no conflict with that section if the code is applied in such a case." 8. In Panchanan's case, the application was taken out while the Arbitrator was alive but he died during the pendency of the application. The court found that when the application was made it was under section 14(2) and as such section 41(a) applied and passed order under section 151 of the C.P.C. But while doing so, the court observed:- "The proceedings before the court have, however, to be proceedings under the Act. There may, therefore, be some difficulty in a case where even before an application is made to the court for an order for the filing of the award, the arbitrator or umpire is already dead, because it may be said that in such a case, the application is not an application under section 14(2) of the Act and there being no other provision authorizing such an application, it is not an application under the Act and, therefore, the Code cannot be imported under the provisions of section 41(a). I need not consider such a case, because the present case is not such a case." 9. The petitioner counsel submits that if an order could be passed under Section 151 of the Code of Civil Procedure on an application which at the time of passing of the order virtually became infructuous due to the death of the arbitrator or umpire and the application could no longer he treated as an application under section 14(2) of the Act then why an application could not be made after the death of the arbitrator? Why Civil Procedure Code should not be applicable to such an application? There is nothing in section 41(a) which excludes its application. Let us consider the provisions of section 41(a) of the Act. (41) Subject to the provisions of this Act and of rules made thereunder:- (a) The provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court and to all appeals under this Act. 10. The opening words of section 41 of the Arbitration Act subject to the provision of this Act and of rules made thereunder clearly indicate that the provisions of the Civil Procedure Code will apply to all proceedings and appeals which are permitted to be made under the Act. It has already been held in Panchanan's case that .there is nothing in the Act to indicate that the provisions of section 14(2) are exhaustive and as such stringent construction of this section would be unreasonable. If an application can be entertained by court under section 151 of C.P.C. by virtue of the provisions of section 41(a) of the Arbitration Act although on the date of its hearing the application could no longer be treated as an application strictly under section 14(2) of the Act then why an application under the Act but not strictly in accordance with the provisions of section 14(2) can be made under section 151 of the Code of Civil Procedure? The present application has been taken out for filing the award in court under the Arbitration Act and as such section 41(a) should apply. In Panchanan's case, the Division Bench refused to treat the application before them as infructuous because it went out of the purview of section 14(2) of the Act due to the death of the umpire subsequently. If such an application can be entertained by court by holding that section 14(2) is not exhaustive, then why an application cannot be taken out applying the same principles. There can be no doubt that an application for filing the award can only be made under that Act and under no other Act or provision. Hence section 41(a) will apply to such an application whether it is made strictly in accordance with the provisions of section 14(2) or not. There can be no doubt that an application for filing the award can only be made under that Act and under no other Act or provision. Hence section 41(a) will apply to such an application whether it is made strictly in accordance with the provisions of section 14(2) or not. If the words in section 41 of the Act subject to the provisions of this Act indicated that applications must be made strictly in accordance with the provisions of the Act or rules made thereunder then such applications would become infractions if strict compliance of the sections become impossible at the time of taking out the application or at the time of hearing of the same. I do not think that the legislature intended that construction. 11. The next point urged by the respondents' counsel is that the application for filing the a ward dated 21.10.1983 is clearly barred by limitation under Article 119 of the Limitation Act. In support of his contention he cites N.S. Ningashetti vs. K.S. Ningashetti, AIR 1962 SC 666 and Khaja Mainuddin vs. Uppula Varaiah & other, AIR 1971 Andhra Pradesh 318. But in Kumbha Mewji's case, the Supreme Court held that in an application by a party to file the award under section. 14(2) of the Act the petitioner must allege that the application was taken out with the authority of the arbitrator or umpire and that fact must be specifically pleaded and proved. Therefore an application by a party for filing the award without the authority of the arbitrator or umpire and without such averment in the petition, cannot come strictly within the purview of section 14(2) of the Act. Unless the application is strictly under section 14(2) of the Act, Article 119 of the Limitation Act may not apply. 12. The respondents' counsel, also submits that the present award is of no legal consequence and if this application is dismissed, no prejudice will be caused to any party to this award. He strongly relies on Amod Kumar Verma vs. Harish Prasad Burman & other, AIR 1958 All. 20 , in support of his contention. The Division Bench of Allahabad High Court in that case held in paragraph 10 that:- "An award is useless unless an it is followed by a decree." 13. He strongly relies on Amod Kumar Verma vs. Harish Prasad Burman & other, AIR 1958 All. 20 , in support of his contention. The Division Bench of Allahabad High Court in that case held in paragraph 10 that:- "An award is useless unless an it is followed by a decree." 13. But in Satish Kumar & other vs. Surindar Kumar & other, AIR 1970 SC 833 , the Supreme Court held in paragraphs 8 and 19. "Para 8 – That an award has some legal force and is not a mere waste paper." "Para 19 – Therefore it is not possible to agree with the Full Bench decisions of Patna High Court and Haryana High Court that an award which is not made a decree of the court has no existence in law. This in my opinion is not a correct approach. The award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court." 14. It is, therefore, clear, that in Satish Kumar's case the Supreme Court overruled 1958 All. 20 on this point. 15. The petitioner's counsel, however, invires, my attention to a Full Bench decision reported in The District Co-operative Development Federation Limited vs. Ram Samujh Tewari, AIR 1973 All 476 . In that case an application was made by a party purported to be under section 14(2) of the Act praying that a decree may be passed in terms of the award. The respondent in that case challenged the maintainability of the application, inter alia, on the grounds that there was no prayer for summoning the award or a direction on the Arbitrator to file the award. Therefore, the application was not in accordance with section 14(2) of the Act. The point of limitation was also urged. The trial court held that the application was not maintainable. The question arose before the Full Court whether a decree could be passed on an application which was not in accordance with section 14(2) of the Act. It was held in paragraph 5 at page 478:- "I am of the view that the exercise of jurisdiction by court under section 17 for making a decree in terms of the award is not necessarily dependent on the filing of an application under section 14(2) with a prayer for Court's direction to summon the award. It was held in paragraph 5 at page 478:- "I am of the view that the exercise of jurisdiction by court under section 17 for making a decree in terms of the award is not necessarily dependent on the filing of an application under section 14(2) with a prayer for Court's direction to summon the award. But that is not the only procedure which will lead to the making of an award (decree?) by the court under section 17. In either case whether the award is filed before the court on being summoned on an application by a party under section 14(2) or on the award being filed by the arbitrator suo motu or on the award being summoned by the court suo motu the court must proceed to give notice of filing of the award to the parties and act under section 17. The court must pass a decree in terms of the award when it sees no cause to remit or set aside the award." (The word decree in brackets supplied) 16. It is a well known principle that when court summons the award suo motu, the question of limitation will not arise. Both the parties in the present case admit the existence of the award dated 21.10.1983. But due to the peculiar facts of this case, the filling of this award has become difficult. Unless the award is filed, neither a decree can be passed thereon nor the award can be set aside. It is a legal document binding between the parties which may create serious difficulty in future. This situation has been created due to the death of the arbitrator which was beyond the control of the parties. In my opinion on the facts of this case for the ends of justice, an order should be made under Section 151 of the Code of Civil Procedure. In that view of the matter to avoid all difficulty, I direct the petitioner suo motu to produce the signed award dated 21.10.1983 before the Registrar. O.S., along with any other records and documents or copies thereof relating to the said arbitration proceeding which might be in his possession, within a week from date for the purpose of filling the said award in this court. O.S., along with any other records and documents or copies thereof relating to the said arbitration proceeding which might be in his possession, within a week from date for the purpose of filling the said award in this court. I also direct the department to issue Notice under Section 14(2) of the Act on the parties to the award within a fortnight from the date of re-opening of the court after the Christmas vacation. Save and aforesaid, there will be no other order on this application. Each party to pay and bear its own costs.