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1997 DIGILAW 891 (PAT)

Shyam Krishna Sahay v. Jagat Developers Limited

1997-12-11

S.N.JHA

body1997
JUDGMENT S.N. Jha, J. This civil revision arises from order dated 6.2.97 passed by the 1st Subordinate Judge, Patna, in Misc. Case No. 45 of 1995. By the said order the application filed by the petitioners under sections 14 and 17 of the Arbitration Act ('The Act' in short) for making the award of the Arbitrator rule of the Court has been rejected as time barred. The facts so far as relevant in this civil revision are as follows. 2. The parties entered into an agreement for the development of a piece of land measuring 29.15 kathas situate on Fraser Road in the town of Patna on 29.8.88. The dispute which cropped up between the parties later was referred to the arbitration of a retired Judge of this Court. On 14.3.95 the Arbitrator sent the award to the parties. On 9.7.95 he sent another communication informing the parties that the award has been made and signed by him. According to the petitioners, they received the said letter/notice dated 9.7.95 on 11.7.95 On 7.8.95 they filed application under sections 14 and 17 of the Act in the court of the 1st Subordinate Judge, Patna, to call for the award from the Arbitrator and make the same rule of the Court. On 12.7.96 the Arbitrator filed the Award in court. On the same day opposite party no. 1 filed application stating that the application filed by the petitioners under sections 14 and 17 was barred by limitation. The petitioners filed rejoinder. On 7.8.96 opposite party filed objection to the award under sections 30 and 33 of the Arbitration Act. The petitioners filed a separate rejoinder to the objection. On 8.2.97, by the impugned order, the court below dismissed the aforesaid application under sections 14 and 17 of the Act, which had been registered as Misc. Case No. 45 of 1995, as time barred. 3. The court below has held that in terms of Article 119 (a) of the Limitation Act, 1963 an application for filing an award in Court is to be filed within 30 days from the date of service of the notice of the making of the award. In the present case, the petitioners had received notice of the making of the award and, indeed, a copy of the award itself on 14.3.95. In the present case, the petitioners had received notice of the making of the award and, indeed, a copy of the award itself on 14.3.95. The application filed by them on 7.8.95 to call for the award from the arbitrator and make the same rule of the Court under sections 14 and 17 of the Act was therefore time barred. 4. Mr. Tara Kant Jha, learned counsel for the petitioners, submitted that the Arbitrator having already filed the award in Court on his own and the same being on record, the court ought to have considered the application under sections 14 and 17 of the Act filed by the petitioners and the objection under sections 30 and 33 of the Act filed by the opposite party thereto, on merit. He relied on certain observations of the Supreme Court, referred to herein-below, contained in paragraph-7 of the judgment in Parasramka Commercial Company Ltd. vs. Union of India, AIR 1970 SC 1654 . He further contended that where the arbitrator submits the award on his own, the provisions of Article 229 of the Limitation Act are not applicable. In support of this contention he placed reliance on Ram Lakhan Mahto vs. Mukhdeo Mahto, 1982 BLJR 30 : AIR 1982 Patna 19. 5. Mr. Ram Balak Mahto, learned counsel for the opposite party, submitted that the petitioners had received notice of the making of the award under section 14 (1) of the Act on 14.3.95 but did not file application to call for the award within the period of limitation. The application filed on 7.8.95 purportedly within 30 days of the notice dated 11.7.95, which was sent by the Arbitrator to help the party in overcoming the bar of limitation, was clearly time barred and the court below did not commit any error in dismissing that application as such. He submitted that where option to file application in Court for calling for the award is not exercised and time runs out, the second option to request the Arbitrator to file the award in the Court can not be exercised by the defaulting party. 6. Sub-sections (1) and (2) of section 14 of the Arbitration Act and Article 119 (a) of the Limitation Act, which are relevant for the purpose of this Civil Revision, are as follows : "14. Award to be signed and filed. 6. Sub-sections (1) and (2) of section 14 of the Arbitration Act and Article 119 (a) of the Limitation Act, which are relevant for the purpose of this Civil Revision, are as follows : "14. Award to be signed and filed. - (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 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 him, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award." x x x x x x x 119. Under the Arbitration Act, 1940- (a) For filing in Thirty The date of service Court of an days of the notice of the award making of the award. From perusal of the above provisions of the Arbitration Act it would appear that under Sub-section (1), after the arbitrator or umpire has made his award and signed it, he is required to give notice in writing to the parties of the making and signing of the award and also inform them about the amount of fees payable is respect of arbitration and award. Under sub-section (2), the arbitrator or umpire is supposed to file the award (together with depositions and documents etc.) in Court either on request of the party to the arbitration agreement or any person claiming under him or on the direction of the Court, upon payment of fees and charge in respect of he arbitration and award and of the costs and charges of filing the award. Thus, after the arbitration proceeding is over, the award has been made and signed and the arbitrator has informed the parties of the making and signing of the award, it is open to the party to either make the request to the arbitrator (or umpire) or to file applications in Court for filing the award in Court. Clause (a) of Article 119 of the Limitation Act provides for period of limitation for making the application in court to file the award. In other words, if the party instead of making a request to the arbitrator or umpire to file the award in court, directly makes an application in the Court for a direction to the arbitrator to file the award, such application is to be made within a period of 30 days of the date of service of the notice of the making of the award. The point for consideration is whether, if during the pendency of the application, seeking direction to the arbitrator to file the award and on receipt thereof to make the same rule absolute in terms of sections 16 and 17 of the Act, the arbitrator suo motu files the award, the said application is to be rejected as time barred ? In other words, if the arbitrator submits the award on his own, whether the application under section 14 and 17 can be dismissed on the ground of limitation? 7. In my opinion, clause (a) of Article 119 has no application in a case where the award has been filed suo motu by the arbitrator. I may straightway refer to the decision in Ram Lakhan Mahto vs. Mukhdeo Mahto (supra) while dealing with a similar argument put forward on behalf of opposite party, a Division Bench of this Court observed : "The argument is entirely misconceived and untenable for the simple reason that this Article of the Limitation Act would apply only to such a proceeding in which a prayer is made for filing of the award and not where the award is already filed. Similar view has been taken by A.B.N. Sinha, J. in the above noted decision (Makeshwar Misra vs. Laliteshwar Pd. Similar view has been taken by A.B.N. Sinha, J. in the above noted decision (Makeshwar Misra vs. Laliteshwar Pd. Singh, 1967 BLJR 757) where it was said that if the award is already filed along with the plaint then there is no question for a direction to the umpire or the arbitrators for filing the award and, therefore, the limitation fixed for such a suit with such a relief was not attracted." In Hazi Rahmatulla vs. Choudhary Vidya Bhusan, AIR 1963 Allahabad 602, a Division Bench of the Allahabad High Court observed, "Art. 176 only applies to an application for the filing of the award and that application can only be one under the provisions of S.14 of the Arbitration Act and, that too, when the prayer in the application is for a direction to the arbitrator by the Court to file the award. It does not apply to a case where the award is already on the record of the Court". In Parasramka Commercial Company Ltd. vs. Union of India (supra), the Supreme Court held, on the facts of the case, that the application for calling for the award, governed by Article 178 of the Limitation Act, 1908 (corresponding to Article 119 (a) of the Limitation Act, 1963) was out of time, as the appellant had notice of the making of the award but did not file the application. In that case the application was filed on 30.8.51. On 3.7.51, the Arbitrator had sent the award to the Court. An argument was put forward on behalf of the appellant to the effect that since the award had already been filed by the Arbitrator himself in the Court which was yet to be determined in the context of the objections filed thereto, the Supreme court observed, "obviously enough that matter arises under the second sub-section of section 14 and will have to be considered quite apart from the application made by the Company to have the award made into rule of Court". The submissions of Mr. Tara Kant Jha in view of the above decisions appear to be well founded. 8. There is nothing in section 14 (2) to prevent party to the award from exercising either of the two optionts, namely, of making application in the Court for direction to the Arbitrator or Umpire to file the award or making a request to the Arbitrator to file the award. 8. There is nothing in section 14 (2) to prevent party to the award from exercising either of the two optionts, namely, of making application in the Court for direction to the Arbitrator or Umpire to file the award or making a request to the Arbitrator to file the award. There is further nothing in the sub-section which prevents the arbitrator from filing the award notwithstanding the fact that the time for making application in Court seeking direction to him to file the award has run out, on the request of the party or on his own. The period of limitation prescribed in Article 119 (a) of the Limitation Act is meant for the party making application in Court to call for the award. It is not meant for Arbitrator or Umpire filing the award in the Court either on his own or on request by a party in that regard. The act of the arbitrator or umpire in filing the award can not be characterised as an application to the Court for the purpose of Article 119 (a). 9. That being the position, in the present case, it is of no consequence, assuming that the petitioners had received the notice dated 14.3.95, if they did not make application to call for the award and make the same rule of the Court, within period of 30 days from the date of service of the notice of the making of the award. The award having already been filed and being on record the Court ought not to have rejected the application which was a composite application filed under sections 14 as well as 17 of the Act, as time barred. In the above premises, the order of the court below can not be sustained. 10. In the result, the impugned order dated 6.2.97 is set aside and the civil revision is allowed. There will be no order as to cost.