RAJ ESHWAR v. AAROHI BUILDER PRIVATE LIMITED — 1996 DIGILAW 369 (DEL)

N. G. Nandi, J. ( 1 ) BY this IA the respondents seek to set aside the order dated 15. 3. 1995, the award dated 12. 12. 1994 whereby, in the proceedings under Sections 14-17 of the Arbitration Act (hereinreferred to as the act ), has been made decree/rule of the court. ( 2 ) THE say of the applicants/respondents, for the purpose of setting aside the order/decree dated 15. 3. 1995, is that the respondents have not been given the notice of the making of the award dated 12. 12. 1994 by the arbitrator at any point of time and that the respondents were not aware of the contents of the award till 15. 9. 1995 as it is only on 15. 9. 95 after meeting the petitioner that the respondents came to know about the contents of the award; that the award dated 12. 12. 94 was not made on 12. 12. 94; that no notice u/s. 14 (1) of the Act by the arbitrator nor notice u/s. 14 (2) of the Act by the court) have ever been issued to the respondents. ( 3 ) IT has been stated in the petition that certain disputes had arisen between the petitioner and the respondents in respect of the transaction dated 22. 12. 91; that on 6. 12. 94 a settlement was reached whereby it was agreed that respondents would make payment of Rs. 4,90,500. 00 in full and final settlement of petitioner s claim; that the petitioner, however, wanted that there should be a decree for the said amount and so it was agreed that they will enter into an agreement for reference and get the award for Rs. 4,90,500. 00 and get it made rule of the court so that the respondent may not resile from the agreement and the petitioner also may not have to pay any court fee on the court decree; that accordingly, on 6. 12. 94, an agreement was entered into between the parties and the matter was referred to the sole arbitration of Shri D. R. Mahajan, Advocate, on that day; that on 6. 12. 94 itself, request was made by the parties to the arbitrator to enter upon the reference and the arbitrator gave a notice of the date of hearing of 12. 12. 94; that on 12. 12. 12. 94 itself, request was made by the parties to the arbitrator to enter upon the reference and the arbitrator gave a notice of the date of hearing of 12. 12. 94; that on 12. 12. 94 the statement of respondents 2 and 3 were recorded beforehe arbitrator and the petitioner also gave his statement on the same lines, as that of respondents 2 and 3, agreeing to pay and receive Rs. 4,90,500. 00 in full and final settlement of the claims; that in view of this mutual settlement, all the papers were got signed on the same day i. e. blank power of attorney (vakalatnama) and signatures were also taken on the proceeding sheets; that on the same day, written statement was also got signed from respondents 2 and 3 for getting the award made rule of the court. According to the respondents, the amount was agreed to be paid by September 1995 and that there is interpolation and the word sixth which was not in the statement of Respondent No. 2, recorded by the arbitrator and that he was also not aware that in default, his liability would be to pay Rs. l2,42,500. 00 after 6th of September, 1995. ( 4 ) THE petitioner has filed reply refuting the say of the respondents and contended that respondents 2 and 3 had full knowledge about the contents of the award and that the respondents appeared through the counsel and filed written statement in the suit for making the award rule of the court and the counsel for the respondents stated that they have no objection to the award being made rule of the court. ( 5 ) THE admitted position, as it emerges from the above, is that the petitioner and the respondents settled the claim for Rs. 4,90,500. 00 and as the petitioner wanted that there should be a decree for the said amount so that the respondent may not resile from the said settlement, the matter was agreed to be referred to the arbitration of Shri D. R. Mahajan, Advocate, who was known to the petitioner and the respondents. The arbitrator gave notice of the date of hearing Fixing 12. 12. 94 and recorded the statements of the petitioner and the respondents on that dale. The respondents also admittedly gave signed power of attorney (according to him blank) and also signed written statement to be Filed. The arbitrator gave notice of the date of hearing Fixing 12. 12. 94 and recorded the statements of the petitioner and the respondents on that dale. The respondents also admittedly gave signed power of attorney (according to him blank) and also signed written statement to be Filed. In the suit for making the award decree, Ms. M. M. Chopra, Advocate Filed her power of attorney for respondents 1-3 and stated before the court that respondents have not to File any objection to the award being made rule of the court. ( 6 ) IT is suggested from the record and proceedings that the award dated 12. 12. 1994 came to be made by Mr. D. R. Mahajan, the sole arbitrator; that the petitioner filed proceedings on 13. 12. 94 under Sections 14 and 17 of the Act for the award dated 12. 12. 1994 being made rule of the court; that the matter came up before the court on 15. 12. 94; that the sole arbitrator filed the award and the arbitration record and proceedings on the date; that on 15. 12. 94 notice of the filing of the award on behalf of respondents 1-3 was accepted by Ms. Chopra, Advocate as suggested from the order sheet; that respondents 1-3 filed written statement dated 15. 12. 94 duly. signed by respondents 2 and 3 and the counsel stated that respondents 1-3 have not to file any objection to the award being made rule of the court and that the award be made decree/rule of the court. It is suggested that arbitration case No. 2820a/94 was adjourned to 2. 2. 95 and the suit was finally placed before the court on 15. 3. 95 on which date the award was made rule of the court. ( 7 ) AS far as IA for setting aside the order/decree dated 15. 3. 1995 is concerned, the only ground which can be looked into, is whether the respondents were served with the notice of filing of the award u/s. 14 (2) of the Act or not since the allegation about the interpolation of word sixth and the award being collusive/fraudulent, as alleged, would relate to misconduct, if any, by the arbitrator, which has to be taken into consideration while considering objections under Section 30-33 for passing the order u/s. 17 of the Act making the award rule of the court. ( 8 ) THE respondents admittedly signed power of attorney (vakalatnama), according to them blank and have admittedly filed written statement stating that there is no objection in the the award dated 12. 12. 1994 being made rule of the court. The record suggests that in the suit Mrs. Chopra, Advocate appeared on behalf of the respondents and accepted notice of filing of award and stated that no objections have to be filed to the award being made rule of the court. Written statement is admittedly filed by the respondents to this effect. ( 9 ) WHILE dealing with the question of issue of notice by the court u/s. 14 (2) of the Act to the parties, the Supreme Court, in the case of FOOD CORPORATION OF INDIA AND OTHERS versus E. KUTTAPPAN reported in AIR 1993 Supreme Court, page 2629, at page 2631, with approval referred to the decision reported in (1962) 2 SCR 551 : ( AIR 1962 SC 666 ) and quoted the observations at page 555 (of SCR) : (at page 668 of AIR) as follows: "sub-SECTION (1) of S. 14 of the Arbitration Act, 1940 (10 of 1940) requires the arbitrator or umpire to give notice in writing tothe parties of the making and signing of the award. Sub-sec. (2) of that section requires the Court, the filing of the award, to give notice to the parties of the filing of the award. The difference in the provisions of the two sub-sections with respect to the giving of notice is significant and indicates clearly that the notice which the Court is to give to the parties of the filing of the award need not be a notice in writing. The notice can be given orally. No question of the service of the notice in the formal way of delivering the notice or tendering it to the party can arise in the case of a notice given orally. The communication of the information that an award has. been filed is sufficient compliance with the requirements of sub-sec. (2) of S. 14 with respect to the giving of the notice to the parties concerned about the filing of the award. notice does not necessarily mean communication in writing . notice" according to the. Ox -. The communication of the information that an award has. been filed is sufficient compliance with the requirements of sub-sec. (2) of S. 14 with respect to the giving of the notice to the parties concerned about the filing of the award. notice does not necessarily mean communication in writing . notice" according to the. Ox -. ford Concise Dictionary, means intimation, intelligence, warning and has this meaning in expressions like give notice, have notice and it also means formal intimation of something, or instructions to do something and has such a meaning in expressions like notice to quit, till further notice . We are of opinion that the expression give notice in sub-s. (2) of S. 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948. Notice to the pleader is notice to the party, in view of R. 5 of 0. 111, Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. " ( 10 ) THUS, it will be seen from the above that notice under sub-Section (2) of Section 14 simply means giving intimation of the filing of the award which certainly was given to the parties through the counsel. Mrs. Chopra appeared for the respondents before the court. Not only that but the written statement has also been filed by the respondents and on 15. 3. 1995, the award came to be made rule of the court. Following the judgment of the Supreme Court (supra), it can not be said that the respondents were not served with the notice of filing of award u/s. 14 (2) of the Act and that the award was made rule of the court without any notice to the respondents. ( 11 ) ONE of the contention of the respondents is that the award dated 15. 12. 94 is obtained fraudulently and in collusion. ( 11 ) ONE of the contention of the respondents is that the award dated 15. 12. 94 is obtained fraudulently and in collusion. It need hardly be said that the remedy for respondents to get the award set aside on the ground of fraud and collusion, would be by way of a regular civil suit and not by way of an application under Section 151 CPC. ( 12 ) ON behalf of the respondents, reliance has been placed on the decision in the case of SHRI SATISH CHANDRA GOEL versus SHRI SURESH CHAND GOEL AND OTHERS reported in 1996 (1) AD (Delhi) page 387, wherein the award has been set aside under Order IX Rule 13 Civil Procedure Code as the advocate who appeared for the respondent, was held to be not duly authorised by the respondent and therefore, no notice under Section 14 (2) of the Act held served on the respondents. In the instant case, all that the respondents say is that they had signed power of attorney but blank and the written statement on 12. 12. 94 itself, as it was also agreed that award should be made rule of the court so that the respondents may not resile from the settlement. Thus, everything was settled on 6. 12. 94 and it is in background of the settlement as above between the petitioner and the respondents on 6. 12. 94 as stated in the IA itself, the parties approached the arbitrator with necessary request and on 12. 12. 94 the respondents gave statement before the arbitrator and also gave signed power of attorney and also the written statement. The respondents does not say in so many words that the advocate who appeared for the respondents, did not have the authority but only say that they had given blank vakalatnama. The further admitted fact is that it was agreed that the award should be made rule of the court and that is why vakalatnama and written statement were signed by the respondents as there was no question of filing any objection to the award and the same was to be made decree, advance written statement to this effect was signed as also the signed vakalatnama and hence the statement by the counsel before the court and order dated 15. 3. 1995. 3. 1995. Looking to the aforesaid facts, the principle laid down in the aforesaid judgment of the learned Single Judge of this court, would not be applicable to the present case. ( 13 ) IT may be appreciated that on respondents own say the amount of Rs. 4,90,500. 00 was agreed to be paid by September, 1995, but by the end of September 1995, whereas the award requires them to make the payment by 6th September, 1995,which was not the date according to them, given in their statement for making the payment and that they also did not say, as argued by Mr. Malhotra, that in default they would be liable to pay Rs. l2,42,500. 00. It will be seen that this argument relates to the alleged misconduct of the arbitrator which may be one of the ground for setting aside the award in the proceedings u/s. 14-17 read with Sections 30 and 33 of the Act before the Award is made rule of the court. In this JA the submission on this score cannot be entertained since it would fall within the ambit of the enquiry u/s. 14-17 of the Act and not under Section 151 Civil Procedure Code for the purpose of setting aside of the decree/order dated 15. 3. 1995. ( 14 ) THUS, it will be seen from the above that in the proceedings u/s. 14 and 17 of the Act for making the award dated 12. 12. 94 rule of the court, the counsel who appeared for the respondents, had the authority to accept notice of filing of the award u/s. 14 (2) of the Act and the counsel concerned appeared in the said proceedings on the basis of the authority given by the respondents by power of attorney (vakalatnama) and the acceptance of notice u/s. 14 (2) of the Act for the respondents is with authority, and therefore, it can not be said that the respondents were not given notice u/s. 14 (2) of the Act before making the award rule of the court/decree on 15. 3. 95. It may be appreciated that on respondents own say the award was to be made rule of the court and the power of attorney and written statement were signed by the respondents for the said purpose. The award dated 12. 12. 94 has been made rule of the court on 15. 3. 95. From 12. 12. 3. 95. It may be appreciated that on respondents own say the award was to be made rule of the court and the power of attorney and written statement were signed by the respondents for the said purpose. The award dated 12. 12. 94 has been made rule of the court on 15. 3. 95. From 12. 12. 94 to 15. 9. 95, the respondents do not care to know about the award if they were not aware of the contents of the same as contended by them and it is only on 15. 9. 95 that he came to know about the contents of the award from the petitioner when he met him for making the payment. At least after 12. 12. 94 till 15. 9. 95, they could have met the arbitrator and know from him if they were really not aware as to for what amount the award has been made. This conduct of the respondents suggests that they were aware of the contents of the award and that is why the power of attorney and the written statement by them for making the award rule of the court, which was, at it appears, on the insistence of the petitioner as the petitioner did not want respondents to resile from the award. ( 15 ) IN view of the above, I do not find any merit in this IA and deserves to be dismissed. IA 9311/95 an application under Section 41 read with II Schedule of the Act read with Order 39 Rule I and 2 and Section 151 CPC, would also be liable to be dismissed. ( 16 ) IN the result, both the IAs fail.