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2003 DIGILAW 311 (RAJ)

NIRMAL KUMAR v. DHANNA RAM

2003-02-26

H.R.PANWAR

body2003
Judgment H. R. PANWAR, J. ( 1 ) THIS appeal is directed against the order dated 3. 10. 1992 passed by additional District Judge No. 1, Jodhpur (hereinafter referred to as the trial Court) whereby the trial court set aside the award dated 24. 4. 1989 made by respondent No. 3 and remitted the matter to the Arbitrator respondent No. 3 for fresh decision after affording opportunity of hearing to the parties. Aggrieved by the order impugned, appellant has preferred present appeal under Section 39 of the Arbitration Act, 1940 (for short the Act of 1940 ). ( 2 ) I have heard learned counsel for the parties, perused the order impugned as well as record of the trial court. ( 3 ) IT is contended by learned counsel for the appellant that respondent Dhanna Ram was served with notice of filing of the award on 19. 7. 1989 as envisaged in Section 40 (2)af the Act of 1940. Respondent No. 2 murlidhar is real brother of respondent No. 1 dhanna Ram and, therefore, he had knowledge of the award having been filed in the court ay the Arbitrator from the very day i. e. 19. 7. 1989. Respondents did not file any objection to award within the period of limitation as provided in Article 119 (b) of the Limitation Act, 1963 (No. 36 of 1963), which is thirty days. He further contended that respondent Dhanna Ram filed an objection on 20. 4. 1991 much after expiry of period of thirty days of limitation and, therefore, the award could not have been set aside on the grounds raised in the objections filed by respondent No. 1 dhanna Ram. It is further contended that the trial court seriously erred in law in setting aside and remitting the award to the Arbitrator suo motu by invoking the provisions of section 16 of the Act of 1940. ( 4 ) LEARNED counsel for respondent dhanna Ram contended that the notice of filing of the award in the court has not properly been served on respondent No. . 2 Murlidhar and, therefore, the trial Court was justified in setting aside and remitting the award suo motu to the Arbitrator. ( 5 ) I have considered the rival submissions made at the Bar. Section 16 of the Act of 1940 reads as under: "16. 2 Murlidhar and, therefore, the trial Court was justified in setting aside and remitting the award suo motu to the Arbitrator. ( 5 ) I have considered the rival submissions made at the Bar. Section 16 of the Act of 1940 reads as under: "16. Power to remit the award.- (1)the Court may from time to time remit the award or any matter referred to arbitration to the arbitrator or umpire for reconsideration upon such terms as it thinks fit- (A) where the award had left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or (B) where the award is so indefinite as to be incapable of execution; or (C) where an objection to the legality of the award is apparent upon the face of it. (2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the court: provided that any time so fixed may be extended by subsequent order of the court. (3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed. " sub-sections (a) and (b) of Section 16 (1) provide that where the award had been left undetermined any of the matters referred to arbitration, or where it determined any matter not referred for arbitration and such matter cannot be separated without affecting the determination of the matters referred or where the award is so indefinite as to be incapable of execution, the court may remit the award or any matter referred to arbitration to the arbitrator for reconsideration. The trial court neither came to conclusion that the award had left undetermined any of the matters referred to arbitration nor was the award so indefinite as to be incapable of execution. The trial Court observed that the court is empowered to set aside the award under Section 16 of the Act of 1940, in a case where the award prima facie is found to be illegal. In whole of the judgment rendered by the trial court, the trial court did not come to the conclusion that the award in question is prima facie illegal. In whole of the judgment rendered by the trial court, the trial court did not come to the conclusion that the award in question is prima facie illegal. The trial court in clear term held that respondent dhanna Ram had not filed objections for setting aside the award within thirty days from the date of its knowledge. This being the position, there was no material before the trial court to invoke the provisions of Section 16 of the act of 1940, to set aside the award and remit the matter to the Arbitrator. The very requirement provided in Section 16 of the Act of 1940, is completely missing in the instant case. The award has been set aside on the grounds mentioned in Section 30 of the Act of 1940, on the objection raised by respondent No. 1 dhanna Ram, which was time barred and, therefore, order setting aside award cannot sustain. ( 6 ) SO far as knowledge of award to respondent No. 2 Murlidhar is concerned, firstly respondent Murlidhar had no grievance inasmuch as he has neither filed objection before the trial Court for setting aside the award nor appeared before this Court despite service. The instant appeal is contested by respondent No. 1 Dhanna Ram, who was admittedly served and had knowledge of filing of the award in the Court but did not file objection seeking setting aside of the award, within the period of limitation. ( 7 ) IN Govind Singh and Ors. v. Man Singh and Ors. , this Court held that service of notice on one of brothers is sufficient service of notice as defendant is expected to have full knowledge of proceeding from his brother who is co-defendant and co-sharer of the disputed field besides regularly contesting the suit proceedings. In that case Keshar Singh and Man Singh, who were two real brothers, jointly purchased the suit property and the notice of suit was served on Man Singh. This Court held that keshar Singh, being his real brother and cosharer of the disputed field, is expected to have full knowledge of the proceeding from his brother. ( 8 ) BE that as it may, whether or not murlidhar had knowledge of filing of the award in the Court, he is not the person aggrieved by the order of the award. ( 8 ) BE that as it may, whether or not murlidhar had knowledge of filing of the award in the Court, he is not the person aggrieved by the order of the award. Obviously, for this reason he neither had filed objection before the trial court nor appeared before this Court despite service, therefore, even if, Murlidhar had no knowledge of filing of the award, it would not be a ground for respondent Dhanna ram to agitate this point in the appeal. ( 9 ) IN Madan Lal (dead) by his Legal representative vs. Sunder Lal and Ann, the supreme Court while considering the power to set aside the award suo motu held that assuming the Court has power, it cannot be exercised to set aside an award on grounds which fall under Section 30 of the Act, if taken in an objection petition filed more than thirty days after serving of notice of filing of the award, for if that were so the limitation provided under Article 158 of the Limitation Act, (No. 9 of 1908, corresponding Section 119 (b)of the Limitation Act, 1963) would be completely negatived. It was further held by their lordships that there is scheme of the Act that if a party wants an award to be set aside on any of the. grounds mentioned in Section 30, it must apply within thirty days of the date of service of notice of filing of the award as provided in Article 158 of the Limitation Act. ( 10 ) IN M/s. Sachin Sahakari Gruhanirman Sanstha Maryadit v. M/s. Shree Ram construction Co. , while deciding the question of exercising of powers suo motu for setting aside of the-award, the Bombay High court held that there is no question of exercising suo motu powers where the ground for setting aside the award falls under any of the clauses under Section 30 and in such a case it is incumbent upon the person challenging the award to make an application within the time prescribed under Article 119 of the Limitation act, 1963. If no such application is made, the court has no power to set aside the award suo motu. . Clause (c) of Section 30 covers all forms of invalidity including the nullity of reference. If no such application is made, the court has no power to set aside the award suo motu. . Clause (c) of Section 30 covers all forms of invalidity including the nullity of reference. Assuming, therefore, that the award in the present case is invalid on the ground that it was made in excess of the terms of reference and that the Arbitrator failed to publish the award within the time fixed by the terms of reference, such a ground would be clearly covered by the words "or is otherwise invalid" in clause (c) of Section 30. Further, the ground being covered by the said clause, the remedy of the party lies in making an application for setting aside the award within the limitation prescribed under Article 119 of the Limitation act. There is, thus, no scope for the argument that the Court can act suo motu and set aside the award on the ground of invalidity. ( 11 ) HAVING considered the submissions made at the Bar and the material on record, 1 am of the considered view that there was no material before the trial court to have come to the conclusion that the award is prima facie illegal or. invalid. When the trial court held the objection filed by respondent No. 1 Dhanna ram to be barred by limitation or having been filed after expiry of period of limitation of thirty days, as envisaged in Article 119 (b) of the Limitation Act, 1963, the trial court was not justified in setting aside the award, and cannot exercise suo motu powers on the very grounds for setting aside the award, which fall under the provisions of Section 30 of the Act of 1940. The order setting aside the award and remitting the matter to the Arbitrator, cannot be sustained and is liable to be set aside. No other point was argued. ( 12 ) IN view of the aforesaid discussion, this appeal succeeds and is allowed. The order impugned dated 3. 10. 1992 passed by Additional District Judge No. 1, Jodhpur is hereby set aside. There shall be no order as to costs. Appeal allowed.