Research › Browse › Judgment

Kerala High Court · body

1995 DIGILAW 26 (KER)

Government of Kerala v. Chacko

1995-01-18

M.M.PAREED PILLAY, P.SHANMUGAM, T.V.RAMAKRISHNAN

body1995
Judgment :- Pareed Pillay, Ag.Cj. State of Kerala has filed the appeal against the order of the Principal Sub Judge, Trivandrum rejecting the objection to the award and passing a decree in terras of the award. Arbitrator passed the award on 28-2-1978. He issued notice to the parties of the making of the award and called upon the respondent to produce necessary stamp papers for engrossing the same. Stamp papers were not produced by the respondent. After six years, respondent moved the Arbitrator requesting him to condone the delay in producing the stamp papers and producing the requisite stamp papers with a prayer that the award may be filed in court. Pursuant to that letter dated 4-2-1984, Arbitrator filed the award in court on 18-2-1984. Notice of the filing of the award in Court was served on the Superintending Engineer on 26-4-1984. He filed objection stating that the award be treated as null and void as it is barred by limitation. 2. Relying on Chowdhury & Culzar Singh v. Frick India Ltd. (AIR 1979 Del.97) the Principal Sub Judge held that award can be filed by the Arbitrator at any time and there is no question of limitation. Consequently the the Sub Judge made the award a rule of court. 3. Contention of the learned Government Pleader is that there cannot be any indefinite period for the Arbitrator to file the award before the Court and at any rate he has to do so within a reasonable period even though the Limitation Act does not specifically provide for any period of limitation and taking stock of the entire aspects the Court can certainly hold that within a reasonable period say, three years the Arbitrator has 'to file the award before the Court. Government Pleader submitted that if such a period is not fixed by the Court, it would lead to insurmountable difficulties as it is open to the Arbitrator to file the award before the Court whimsically or capriciously. 4. Government Pleader submitted that if such a period is not fixed by the Court, it would lead to insurmountable difficulties as it is open to the Arbitrator to file the award before the Court whimsically or capriciously. 4. Learned counsel for the respondent pointed out that the said argument has no merit in view of the fact that under Art.119(a) of the Limitation Act thirty days' time has been fixed for the filing of the award in the court from the date of service of notice of the making of the award and as a party to the arbitration has only thirty days' period and as there is nothing in the Act indicative of the period by which the Arbitrator has to file the award before the Court, the stand taken by the Government Pleader that reasonable period of three years should be fixed for filing the award by the Arbitrator before the Court cannot be accepted. 5. Section 14(1) of the Arbitration Act states that 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. Under S.14(2) the arbitrators or umpire shall, at the request of 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 and of the costs and charges of filing the 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. This can be done on the direction of the Court as well. S.14 does not preclude the arbitrators from filing the award before the Court. Contention that only parties to the arbitration agreement alone can initiate action for filing award before the Court and the arbitrator has no such power is not tenable. In Narayan Bhawu v. Dewajibhawu (AIR 1945 Nag. 117) the Court held that there is nothing in S.14 of the Arbitration Act which precludes the arbitrators from filing the award before the Court. In Narayan Bhawu v. Dewajibhawu (AIR 1945 Nag. 117) the Court held that there is nothing in S.14 of the Arbitration Act which precludes the arbitrators from filing the award before the Court. The Supreme Court in Stale of M.P. v. S.& S. Ltd. (AIR 1972 SC 1507) fortified the position in para. 14 thus-: "The question specifically arose before the Nagpur High Court in Narayan Bhawu v. Dewajibhawu, AIR 1945 Nag. 117. The High Court held that there is nothing in S.14(2) of the Act, which precludes the arbitrator from filing the Award suo mote and it is not correct to say that the Award should be filed only if the Parties make a request to the arbitrator to file the Award or make an application to the Court for that purpose. We are in agreement with this view of the law, especially when there is no prohibition in the Act, particularly in S.14(2) against the arbitrator filing suo mote his Award in Court." 6. But it has to be noted that period of limitation is provided only for the parties to make application for filing of the award in Court. Under Art.119(a) of the Limitation Act the party gets thirty days' time for making application for filing the award in Court from the date of service of the notice of the making of the award by the Arbitrator. Contention of the Government Pleader is that after issuing the notice to the party, the Arbitrator is not any more interested in the matter and as the party did not make any application within time as provided under Art.119(a) of the Limitation Act, the Arbitrator cannot on his own after long lapse of lime file the award. As the Limitation Act does not prescribe any period of limitation, for filing of the award by the arbitrator suo mote the above contention is devoid of merit. In this context it is useful to refer to Champalal v, Mst. Shambathbai (AIR 1960 SC 629) where the Supreme Court held that Art.178 of the Limitation Act (old) applies to applications made by parties and not to the filing of the award by the arbitrators. It is equally important to note that when Limitation Act does not provide period of limitation Court cannot fill up the gap by supplying the period by inference. It is equally important to note that when Limitation Act does not provide period of limitation Court cannot fill up the gap by supplying the period by inference. As the function of the Court is to interpret the law as it is especially when there is no ambiguity, no extraneous considerations can be availed of to supply any omission. This being the explicit position, Court cannot supply the omission. It has only to give effect to it. This is particularly so to a statute like the Limitation Act. 7. That mere is no period of limitation for the arbitrator to file his award in court was recognised by the Law Commission in its Third Report wherein it was observed: "S.14 of the Arbitration Act, 1940 provides for the filing of an award in a court and under S.17 of that Act, the court must proceed to pronounce judgment according to the award. S.32 bars suits to question the award. In the result an award can be enforced only by filing it in court and obtaining judgment thereon and a suit cannot be filed on it. An award has to be filed even for purpose of setting it aside. A provision is therefore required fixing a time within which an arbitrator should file his award. S.14(2) of the Arbitrator Act provides that he shall file it into court (a) at the request of any party or person claiming under him and (b) on an order from the court. It has been held by the various High Courts that Art.178 applies only to an application by the party to the court to direct the arbitrator to file his award into court. The present position is that the arbitrator can file the award even after a party's application has been barred and he can do so even after a suit on the original cause of action has been instituted as there is no limitation for his doing so. We consider that there should be a time limit for the arbitrator to file the award and the period should be 30 days from the last dale of service of notice of the making of the award on any of the parties. The Arbitration Act may be suitably amended to give effect to this recommendations." Despite the Law Commission's recommendations to make suitable amendments in the Arbitration Act, no step was taken. 8. The Arbitration Act may be suitably amended to give effect to this recommendations." Despite the Law Commission's recommendations to make suitable amendments in the Arbitration Act, no step was taken. 8. Acceptance of the Government Pleader's contention that the court has to fix reasonable period of three years for filing the award before the Court by the arbitrator would certainly result in legislation by the Court. This is not the duty of the Court. In Union of India v. Deoki Nandan Aggarwal (AIR 1992 SC 96) the Supreme Court observed: "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plan and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which arc not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities." As Art.119(a) is there and as there is no provision with regard to the period of limitation so far as the arbitrator filing the award before the Court is concerned, usurpation of legislative functions cannot be done by us and we cannot supply the omission. 9. Though there is no period of limitation so far as the arbitrator filing the award before the Court is concerned, it has to be held that in a case where the arbitrator at the instance of the party to the agreement filed the award before the Court it has to be construed as an application by the party concerned and if that be so, Art.119(a) of the Limitation Act squarely would apply. From the records in the case it is seen that the arbitrator who passed the award has not filed the same in the Court, but his successor has filed the award before the Court at the instance of the respondent on his written application. If that be so, we cannot say mat this is a case where the Arbitrator suo motu filed the award before the Court. That being the position, this is not a case where the Arbitrator has on his own chosen to file the award before the Court. In a case where the Arbitrator has not filed the award in Court on his own, a party to the arbitration who wants the award to be filed in Court should have approached the court or the Arbitrator within the time allowed under Art.119(a) of the Limitation Act. It cannot be that, even after the expiry of the time fixed as per Art.119(a) for filing an application to the court, he can-at any time approach the Arbitrator and request him to file the award in the court and the Arbitrator can on such motion file the award relying upon the legal position that he can on his own file the award at any time. In our view, the result of acceptance of such a legal position will be to allow a party to the arbitration to evade the bar of limitation imposed on him under Art.119(a) of the Limitation Act indirectly and indefinitely. It will go against the very purpose and scheme of Arbitration Act. In acase where a party is precluded from approaching a court to compel the Arbitrator to file the award in court beyond the period of limitation, he cannot be allowed to have the same thing done in an indirect way by approaching the Arbitrator at any time chosen by him. As such, we are inclined to take the view that Arbitrator can file the award in Court at the instance of a party only if the party has requested him to do so within the time allowed under Art.119(a) of the Limitation Act. Since in this case filing of the award has been done at the instance of the respondent, Government Pleader's submission that it is barred by limitation deserves acceptance. We hold that the filing of the award in this case is barred by limitation. 10. Since in this case filing of the award has been done at the instance of the respondent, Government Pleader's submission that it is barred by limitation deserves acceptance. We hold that the filing of the award in this case is barred by limitation. 10. Government Pleader alternatively contended that the award was not filed before the Court by the Arbitrator who passed the same but it was done by his successor. But such a contention was not taken before the Court below. Nor such a contention is taken in the appeal memorandum. In that view of the matter, it is not necessary for us to consider the said contention. 11. As we hold that the filing of the award before the Court is beyond the period of limitation, the applicants are entitled to succeed. The impugned order is set aside. M.F.A. stands allowed.