Ratan Singh Gehlot v. Union of India — 1995 DIGILAW 909 (RAJ)

Honble YADAV, J. – This revision petition arises out of an order dated 8.7.94 passed by learned District Judge, Jodhpur in Civil Misc. Case No. 37A/94 holding that objection filed by the contesting opposite-party No. 4 on 25.5.94 under Sec. 30 read with Sec. 33 of the Arbitration Act, 1940 (hereinafter referred to as `Act no.X of 1940) was within limitation from the date of opening of the original Award dated 12.2.1994. The original Award in sealed envelope was received in his Court on 19.4.1994 and was opened by him on 7.5.1994 in the presence of the revisionist counsel alone. (2). In the instant revision petition in hand, a short question arises for consideration as to whether the period of limitation of 30 days as contem- plated under Art. 119 (b) of the Schedule in the Limitation Act, 1963 runs from the date of service of notices to the contesting parties issued by the learned District Judge under sub-sec. (2) of Section 14 of the Act No.X of 1940 in pursuant to filing of an authenticated signed copy of the Award dated 12.2.1994 by the revisionist M/s Ratan Singh Gehlot, who was authorised to file signed copy of the Award in the court of learned District Judge on behalf of Arbitrator or from the date of opening of the original Award in Court on 7.5.94 in presence of learned counsel for the revisionist alone. (3). Brief facts necessary to be noticed for disposal of the revision are that the revisionist is Class `A Contractor of M.E.S. with Head-quarters at Jodhpur. The revisionist was given contract for technical structures at Jamnagar under Contract Agreement No. CA No.CE(P)J/JMR/34 of 84-85. (4). Certain differences had arisen between the revisionist and contesting opposite-parties arising out of the said contract. The matter with regard to the appointment of the Arbitrator as stipulated under the said contract was finally decided on 20.2.1993 by the learned District Judge in Civil Original Suit No.204 of 1988 by virtue of which, Shri B.M. Gupta, Chief Engineer whose name was given by the contesting opposite-parties themselves was appointed as sole Arbitrator to decide the dispute between the parties. The above-named sole Arbitrator signed the Award on 12.2.94 and sent the registered notices in writing to both the parties as well as learned District Judge about making and signing of the Award on the same date. The above-named sole Arbitrator signed the Award on 12.2.94 and sent the registered notices in writing to both the parties as well as learned District Judge about making and signing of the Award on the same date. The registered notices sent by the sole Arbitrator, named above, to the parties were enclosed with signed copy of the Award. A copy of the signed Award was also sent to the learned District Judge. A carbon copy of the registered notice, which was sent by the sole Arbitrator to the revisionist M/s Ratan Singh Gehlot is available on record which indicates that the parties were authorised to file the said copy of the Award in court on behalf of the sole Arbitrator provided that the party before filing of the Award paid increased duty payable in the form of Non-judicial Stamp Paper of requisite value. (5). After receipt of registered notice from the sole Arbitrator along with signed copy of the Award dated 12.2.94 authorising the revisionist to file the signed copy of the Award in court on his behalf the revisionist filed the same in court of learned District Judge after furnishing requisite value of non-judicial stamp with an application dated 3.3.94 in the office of learned District Judge which was placed before him in 8.3.94 for orders. (8). It is apparent from the order-sheet dated 8.3.94 of the learned District Judge that he directed the office to register the case in Group `A of the Cases. He also directed his office to issue notices to the contesting parties and fixed 16.4.94 for filing objection against the Award dated 12.2.94. The original Award was also summoned on the same day from the sole Arbitrator. (7). The case was taken up by the learned District Judge on 30.3.94 and it was found by him that notices had already been issued under Sec.14(2) of Act No. X of 1940 to the opposite parties. The case was directed to be taken up on the date fixed. (8). The case was again taken up by the learned District Judge on 16.4.94 in presence of the learned counsel for the revisionist as well as in presence of the learned counsel for the contesting opposite-parties No. 2 to 4. Notices issued to the sole Arbitrator (opposite-party No.5) was not received after service. (8). The case was again taken up by the learned District Judge on 16.4.94 in presence of the learned counsel for the revisionist as well as in presence of the learned counsel for the contesting opposite-parties No. 2 to 4. Notices issued to the sole Arbitrator (opposite-party No.5) was not received after service. It is evident from the order-sheet dated 16.4.94 that the learned District Judge directed to issue a letter to the sole Arbitrator to file the original Award. The case was directed to be listed on 7.5.94 awaiting service of notice on the sole Arbitrator and also for producing the original Award. (9). Thus, it is clear from the order sheet dated 16.4.94 that service of notices issued by the learned District Judge under Sec.14(2) of Act No. X of 1940 to all the contesting parties No. 1 to 4 were found to be sufficient except on the sole Arbitrator (opposite-party No. 5). (10). The case was again taken up by the learned District Judge on 7.5.94 in presence of counsel for the revisionist. Irrespective of sufficient service on opposite-parties No. 1 to 4, no one was present on their behalf. The original Award dated 12.2.94 was received in court on 19.4.94 in sealed envelope which was opened by the learned District Judge on 7.5.94 in presence of counsel for the revisionist as no one was present on behalf of the contesting opposite-parties No. 1 to 4. It was found by the learned Dist- rict Judge on 7.5.94 that irrespective of sufficient service on the contesting opposite-parties No. 1 to 4, no objection was filed by any one of them against the Award, hence, he fixed 19.5.94 for orders. (11). The case was again taken up on 19.5.94 in presence of learned counsel for the revisionist as well as learned counsel appearing on behalf of the contesting opposite-parties No. 1 to 4. Learned counsel appearing on behalf of the contesting opposite-parties No. 1 to 4 expressed his desire to file an objection against the Award which was opposed by learned counsel for the revisionist on the ground that time prescribed for filing objection in the present case has already expired. Learned District Judge fixed 6.7.94 for arguments meanwhile the objection was filed on behalf of the contesting opposite-parties No. 1 to 4 under Sec. 30 read with Sec. 33 of Act No. X of 1940 on 25.5.1994. (12). Learned District Judge fixed 6.7.94 for arguments meanwhile the objection was filed on behalf of the contesting opposite-parties No. 1 to 4 under Sec. 30 read with Sec. 33 of Act No. X of 1940 on 25.5.1994. (12). Learned District Judge heard the arguments on behalf of the learned counsel for the parties and recorded the findings that firstly, it can be accepted that the revisionist has filed a signed copy of duly authenticated Award on 3.3.94, upon which, notices were issued to the contesting opposite-parties under the Seal of his Court on 15.3.94 fixing the date 16.4.94 for contesting opposite-parties No. 1 to 4 to appear either personally or through their pleader with a warning to file objection as to why the Award may not be made rule of the Court. Secondly, notices issued by him under Sec. 14(2) of the aforesaid Act were served upon the contesting opposite-parties No. 1 to 3 between 7th and 8th of April, 1994 while notice was served on the contesting opposite-party No. 4 on 11.4.94. Thirdly, according to the learned District Judge, the contents of notices issued under Sec. 14(2) of Act No. X of 1940, which were served upon the contesting opposite-parties No. 1 to 4 cannot be treated to be sufficient notices enabling them to know about filing of the Award, which is essential to file objection within 30 days as envisaged under Art.119(b) of the Schedule in the Limitation Act, 1963. Lastly, according to the learned District Judge, since the sealed envelope containing the original Award was opened in the Court on 7.5.94 in presence of both the parties, hence, limitation of 30 days was to be computed from 7.5.94 and as such, according to him, the objection filed by the contesting opposite- parties No.1 to 4 on 25.5.94 was within limitation. (13). On the basis of the aforesaid findings recorded by the learned District Judge, a preliminary objection raised by the revisionist to the effect that objection filed by the contesting opposite-parties No. 1 to 4 under Sec. 30 read with Sec. 33 of Act No. X of 1940 on 25.5.94 was barred by lapse of time, was rejected on 8.7.94. (14). Aggrieved against the order dated 8.7.94 rejecting the preliminary objection about the limitation, the revisionist has filed the instant revision petition before this Court. (15). I have heard learned counsel Mr. (14). Aggrieved against the order dated 8.7.94 rejecting the preliminary objection about the limitation, the revisionist has filed the instant revision petition before this Court. (15). I have heard learned counsel Mr. M.C. Bhoot for the revisionist and learned counsel Mr. P.P. Choudhary appearing on behalf of the contesting opposite-parties No. 1 to 4 With assistance of the learned counsel for the parties, I have critically examined the original record summoned from the court of learned District Judge. I have also perused the order impugned passed by the learned District Judge, rejecting the preliminary objection about limitation raised on behalf of the revisionist before him. (16). Before dealing with the rival contentions raised at the Bar, I propose to discuss the material on record. Indisputably, the Award was made and signed by the sole Arbitrator on 12.2.94 and on the same date, registered notices accompanying with the signed copy of the Award were sent to the parties. A carbon copy of the signed Award is on record. (17). A close scrutiny of the carbon copy of the registered notice issued to the revisionist on 12.2.94 leads towards an irresistible conclusion that it was accompanied with the signed copy of the Award which was enclosed with it. The aforesaid notice further indicates that the parties were authorised to file signed copy of the Award in Court on behalf of the sole Arbitrator provided the parties filing the Award paid payable duty in the form of non-judicial stamp paper of the required value. Correctness of the registered notice as well as correctness of signed copy of the Award with authen- tication of file in Court on behalf of the sole Arbitrator is not being disputed before me. (18). It is further evident from perusal of the original record summoned from the court of learned District Judge that after receipt of signed copy of the Award authorising the revisionist to file the same in court on behalf of the sole Arbitrator for making it rule of the Court, the revisionist filed the same with an application before the learned District Judge on 3.3.94 making a prayer to make the Award dated 12.2.94 as rule of the Court. After being satisfied about fulfilment of the condition precedent under sub-sec.(2) of Sec. 14 of Act No. X of 1940, learned District Judge issued notices to the con- testing opposite-parties No. 1 to 4 under the Seal of his Office on 15.3.94 to show cause before noon either personally or through their pleader on 16.4.94 as to why the Award may not be made rule of the Court. It is not disputed before me that notices issued under Sec.14(2) of Act No. X of 1940 by the learned District Judge were not served on the contesting opposite- parties No. 1 to 3 between 7th and 8th of April, 1994 and the same was served upon the contesting party No. 4 on 11.4.1994. (19). A close scrutiny of the notices sent by the learned District Judge under Sec.14(2) of Act No. X of 1940, which are on record, the following contents are written in hand-writing:– ``Plaintiff moved application under Sec. 14 the Arbitration Act, 1940 for rule of Court of the Award. Why the Award may not be made rule of the Court. (20). From the order-sheet dated 16.4.94, it is evident that after service of the aforesaid notices on the contesting opposite-parties No.2 to 4, they appeared before the learned District Judge through their counsel on the said date although opposite- party No. 1 thought it proper to remain absent on the said date even after due service of notice. It is again apparent from the order-sheet dated 7.5.94 that none of the contesting opposite- parties No. 1 to 4 appeared before the learned District Judge and the original Award was opened in presence of the learned counsel for the revisionist alone, therefore, the finding of the learned District Judge to the effect that the ori- ginal Award was opened in presence of both the parties is factually incorrect. Learned District Judge was not justified to presume 7.5.1994 as the date of service of notices upon the contesting opposite-parties No. 1 to 4 about filing of the Award. This presumption of learned District Judge is against the order-sheet dated 7.5.94 which is not disputed before this Court. Learned District Judge was not justified to presume 7.5.1994 as the date of service of notices upon the contesting opposite-parties No. 1 to 4 about filing of the Award. This presumption of learned District Judge is against the order-sheet dated 7.5.94 which is not disputed before this Court. Thus, computation of limitation by the learned District Judge from 7.5.1994 and holding the objection filed by the contesting opposite-parties No. 1 to 4 on 25.5.94 within limitation is based on non-existent ground and as such, is not sustainable in the eye of law and deserves to be set aside. (21). The finding of the learned District Judge that notices issued by him under Sec. 14(2) of Act No. X of 1940 were notices to show cause on the application of the revisionist is also not sustainable in view of the contents of notices written in hand- writing quoted in extenso in the preceding paragraph. The contents of these notices have also been quoted by the learned District Judge in his impugned order. A close scrutiny of the contents of notices served on the contesting opposite-parties No. 1 to 4 lead towards an irresistible conclusion to the effect that these notices gave complete acknowledgement to them about filing of the Award in Court and also gave clear knowledge to the contesting opposite-parties as to why the Award may not be made rule of the Court. Learned District Judge has clearly misconstrued these notices issued by him under Sec.14(2) of Act No. X of 1940 which has resulted in miscarriage of justice and fair play. (22). The finding of the learned District Judge to the affect that notices served upon the contesting opposite-parties No. 1 to 4 together with a copy of the application moved by the revisionist to make the Award rule of the Court on 3.3.1994 would not make any difference about knowledge of filing of the Award in Court, is factually in correct. The finding of the learned District Judge to the affect that notices served upon the contesting opposite-parties No. 1 to 4 together with a copy of the application moved by the revisionist to make the Award rule of the Court on 3.3.1994 would not make any difference about knowledge of filing of the Award in Court, is factually in correct. A close scrutiny of the application dated 3.3.1994 moved by the revisionist to make the Award rule of the Court throws a flood of light that in the said application, there are brief details about the circumstances under which the sole Arbitrator was appoi- nted at the behest of the contesting opposite-parties themselves and how after giving opportunities to both the parties, the Award was made and signed by the sole Arbitrator and how a signed copies of the Award have been sent to both the parties to file in Court to make it rule of the Court. In paragraph 4 of the said application the revisionist has clearly stated about the amount awarded to him and annexed the authenticated signed copy of the Award as Exhibit. Averments made in paragraph 9 of the said application are reproduced below for ready reference:– ``That the notice of this Award was sent to both the parties by the Sole Arbitrator and received by them. The plaintiff has also been authorised by the sole Arbitrator to file the Award on his behalf before this Hon`ble Court. (23). Thus, once it is proved that notices issued by the learned District Judge under Sec.14(2) of Act No.X of 1940 together with a copy of the application dated 3.3.1994 were served upon the contesting opposite-parties No. 1 to 4, it would amount travesty of justice to hold that the contesting opposite-parties No. 1 to 4 have no knowledge about filing of the Award in Court to make it rule of the Court as held by the learned District Judge. This Court cannot afford to send a message to the litigant public in general and the contesting opposite-parties No. 1 to 4 in particular by upholding the finding of the learned District Judge that in a proceeding before a court of law a litigant public can be allowed to succeed to allege and to prove white to black and black to white and; false to be true and true to be false. Let the litigant public in general and contesting opposite-parties No. 1 to 4 in particular to imbibe that in a court proceedings, it is truth and truth alone which succeeds not otherwise. (24). It is evident from the order-sheet that after service of notices to appear before the learned District Judge on 16.4.94, respondents No.2 to 4 did appear before the court on that day, which necessarily mean that they had obtained knowledge about filing of authenticated copy of the Award in Court although respondent No. 1 remained absent on the aforesaid date. All the contesting opposite-parties No. 1 to 4 conspicuously remained absent on 7.5.94 before the court of learned District Judge. The contuma- cious absence of the contesting opposite-parties No. 1 to 4 on 7.5.94 before the court of learned District Judge leads to a conclusion that they have full knowledge about filing of an authenticated copy of the Award in Court to make it rule of the Court and contention contrary to it is devoid of truth and merit. (25). In my considered opinion, the phraseology of Sub-sec. (2) of Sec. 14 of Act No. X of 1940 ``cause the Award or a signed copy of it......... to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the Award does not mean the filing of the Award in Court by the Arbitrator himself but it envisaged to be filed by a party to the Award or any other person also provided he has been authorised by the Arbitrator to file the Award in Court on his behalf. It is true that merely handing-over the Award to a party by the Arbitrator under sub- sec.(2) of Sec. 14 of Act No. X of 1940 does not imply that such party has been authorised to file the Award in Court on behalf of the Arbitrator. The authority to file the Award on behalf of the Arbitrator is required to be alleged and proved by the revisionist that he was authorised by the sole Arbitrator to file the Award in Court on his behalf to make it rule of the Court and in fact, it was filed by him on 3.3.94, upon which, notices were issued to the contesting opposite-parties No. 1 to 4 by the learned District Judge under sec.14(2) of Act No. X of 1940. (26). (26). It is well to remember that notices under Sec.14(2) of Act No. X of 1940 as referred under Art. 119(b) of the Schedule in the Limitation Act, 1963 may be formal or constructive as no form of notice has been prescri- bed but it must be issued by the Court only after being fully satisfied under Sec. 14(2) of Act No. X of 1940 about filing of the Award either by the Arbitrator himself or by filling the signed copy of the Award by a party or by any other person authorised by him to file in Court on his behalf. (27). In my humble opinion, filing of the Award is a condition precedent for issuing notice under Sec.14(2) of the aforesaid Act by a Court and after service of such notice the period of limitation began to run as contemplated under Art.119(b) of the Schedule in the Limitation Act and an argument contrary to it is not acceptable. (28). In abundant caution, it is held that if an objection is filed by a party after service of notice issued by the Court under Sec. 14(2) of the said Act alleging that the Award filed by the party or any other person was not authorised to file the signed copy of the Award on behalf of the Arbitrator and it is so proved then in such a situation the period of limitation prescribed under Art.119(b) of the Schedule in the Limitation Act, 1963 would not be computed against him from the date of service of such notice. (29). In the present case, no foundation has been laid either in the objection or in the argument that the revisionist was not authorised on behalf of the sole Arbitrator to file authenticated signed copy of the Award in Court no his behalf while contrary to it, there are conclusive evidence and materials on record that the revisionist was authorised by the sole Arbitrator to file the Award in Court on his behalf and the revisionist did file the authenticated signed copy of the Award in Court on 3.3.94 upon which the learned District Judge after being fully satisfied about filing of a valid authenticated Award issued notices to the contesting opposite-parties who did not file objection within limitation from the date of service of such notices upon them. (30). (30). Once the learned District Judge sent notices under Sec.14(2) of Act No. X of 1940 which were duly served upon the contesting opposite-parties No. 1 to 4 starting point for period of limitation under Art.119(b) of the Schedule in the Limitation Act, 1963 would begin to run from the date of service of such notices upon them. In the present case, there cannot be two starting points for period of limitation, one from the date of opening of the original Award by the learned District Judge on 7.5.94, that too, in absence of the contesting opposite-parties No. 1 to 4 and other from the date of ser- vice of notices upon them issued by the learned District Judge under Sec.14(2) of Act No. X of 1940. In my humble opinion, in the present set of circumstances, the period of limitation would begin to run from the date of service of the notices to the contesting opposite-parties No. 1 to 4 and not from the date of opening of the original Award in Court, as held by the learned District Judge. (31). According to me, even if there is competition between two dated for computing limitation one from the date of service of notices upon the opposite-parties No. 1 to 4 and other from the date of opening of the original Award which was admittedly subsequent to the service of notices upon them even then the limitation in the present case is to be computed from the date of service of notices upon the opposite-parties No. 1 to 4 and not from the date of opening of the original Award in asmuch once limitation of 30 days began to run under Art.119(b) of the Schedule in the Limitation Act, 1963 after service of notices upon all the opposite-parties on 11.4.94, it could not be arrested subsequently on the opening of the original Award on 7.5.94. In fact, the limitation which begins to run after service of notices upon all the contesting opposite-parties on 11.4.94 issued by the learned District Judge under Sec.14(2) of Act No. X of 1940 can be arrested only by filing an objection to the Award and not otherwise. (32). In fact, the limitation which begins to run after service of notices upon all the contesting opposite-parties on 11.4.94 issued by the learned District Judge under Sec.14(2) of Act No. X of 1940 can be arrested only by filing an objection to the Award and not otherwise. (32). A close scrutiny of the contents of the notices issued by the learned District Judge and conduct of the contesting opposite-parties No. 1 to 4 reveal in the present case that they had full acknowledgement about filing of the Award on the date of service of notices upon them under Sec.14(2) of Act No. X of 1940 and limitation commenced from 11.4.94 on the last date of service of notice upon contesting opposite-party No.4, (notices were served upon the opposite parties No. 1 to 3 between 7th and 8th of April, 1994) while objection was filed by them under Sec. 30 read with Sec. 33 of Act No. X of 1940 on 25.5.94 which was barred by lapse of time as contemplated under Art.119(b) of the Schedule in the Limitation Act, 1963 and the finding contrary to it arrived at by the learned District Judge is not sustainable. (33). Learned counsel Mr. P.P. Choudhary, appearing on behalf of the contesting opposite-parties No. 1 to 4 placed reliance on a decision rendered by the Apex Court in the case of State of Bihar through Executive Engineer vs. Rameshwar Prasad (1). The facts of the aforesaid decision rendered by the Apex Court are not applicable to the facts and circumstances of the case in hand in as much in that case, no notice was issued under Sec.14(2) of Act No. X. of 1940 to the parties by the Court therefore, their Lordships ruled that period of limitation began to run against the party questioning the Award from the date of opening of the original Award in Court in presence of the parties. The relevant paragraph 2 of the aforesaid decision by their Lordships of the Supreme Court read thus:– ``...........Indisputably in the instant case no notice was issued by the Court but the Award was made known on 23.2.88. The point seems to be covered by the decision of this Court in the case of Indian Rayon Corporation Ltd. Vs. Reunaq & Co. Private Limited AIR 1988 SC 2054 . The point seems to be covered by the decision of this Court in the case of Indian Rayon Corporation Ltd. Vs. Reunaq & Co. Private Limited AIR 1988 SC 2054 . In paragraph 6 of that judgment this Court observed; ``The filing in the Court is necessary and intimation thereof by the Registry of the Court to the parties concerned is essential. Proceeding further in paragraph 10 of the judgment, this Court observed:– ``The fact that the parties have notice of the filing of the Award, is not enough. The notice must be served by the Court. We reiterate again that there must be (a) filing of the Award in the proper Court, (b) service of the notice by the Court or its office to the parties concerned; and (c) such notice need not necessarily be in writing. It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of Art. 119 of the Act, the limitation expires on the expiry of the thirty days of the service of that notice for an application for the setting aside of the Award. The importance of the matter, which need to be emphasised is the service of the notice by the Court. It is not the method of the service that is important or relevant. (34). The argument of learned counsel for the revisionist to the effect that the present case is squarely covered by the decision rendered by the Apex Court in the case of Indian Rayon Corporation Limited vs. Reunaq & Company Private Limited (2), has substance. In the present case, principles enunciated by their Lordships in paragraph 10 of the case of Indian Rayon Corporation (supra) are fully satisfied, hence, the order passed by the learned District Judge is liable to be set aside. (35). In my humble opinion, in the latter decisions rendered by the Apex Court in the case of Food Corporation of India and others vs. E. Kuttappan (3) and in the case of State of Bihar through Executive Engineer (supra), the principles enunciated in the case of Indian Rayon Corporation Pvt. Ltd.(supra) have been reiterated. (36). (35). In my humble opinion, in the latter decisions rendered by the Apex Court in the case of Food Corporation of India and others vs. E. Kuttappan (3) and in the case of State of Bihar through Executive Engineer (supra), the principles enunciated in the case of Indian Rayon Corporation Pvt. Ltd.(supra) have been reiterated. (36). As a result of the afore-mentioned discussion, the order dated 8.7.94 passed by the learned District Judge holding the objection filed by the contesting opposite-parties No. 1 to 4 under Sec. 30 read with Sec. 33 of Act No. X of 1940 on 25.5.1994 to be within limitation is set aside and the instant revision petition is allowed. The objection filed by the contesting opposite-parties No. 1 to 4 under Sec.30 read with Sec. 33 of the said Act is hereby rejected as it is found to be clearly barred by lapse of time as contemplated under Art.119(b) of the Schedule in the Limitation Act, 1963. Both the parties are directed to bear their own costs.