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2008 DIGILAW 136 (JK)

Wali Mohd. Kar v. Habib-Ullah Kar

2008-04-23

SUNIL HALI

body2008
1. This appeal is before me under section 39 of the Jammu and Kashmir Arbitration Act filed by the appellant against the order dated 21-07-2007 of learned Additional District Judge, Baramulla, whereby he has rejected the objections filed by the appellant herein against the award dated 9.12.2006 and made the award rule of the Court. 2. The case has a chequered history as the parties are litigating from 1980 in respect of the property they were enjoying jointly till the dispute arose. It is second round of litigation which culminated in the passing of award by the Arbitrators and made rule of the court by the court below. Not feeling satisfied with the conclusion of this litigation, the appellant preferred the instant appeal. 3. The matter was referred to the Arbitrators vide order dated on 16-11-2004 passed in CIA No. 8/2003 by a co-ordinate Bench of this court and was sent to the learned District Judge, Barmulla who was directed to refer the matter to the Arbitrators mentioned in the agreement after taking necessary steps as required by the Arbitration Act. Record of the case was sent to the District Judge for making reference to the Arbitrators. 4. As a sequel to the direction of the Honble Court, the District Judge, Barmulla referred the matter to the Arbitrators. The matter came to be referred vide order dated 21-12-2004 by the court below to the arbitrators. They filed their award on 12-12-2006 before the learned Additional District Sessions Judge, Barmulla. A detailed award was prepared by the Arbitrators. It is revealed from the record that the court below has been continuously monitoring the proceedings pending before the Arbitrators after the reference was made to them. It is not discernible as to how the court below has been monitoring the proceedings before the Arbitrator. Once a reference is made by the court and the matter is referred to the Arbitrators, it becomes functus-officio. Parties through their counsel have been regularly appearing before the court during the pendency of the arbitration proceedings before the Arbitrators. It is under these circumstances when the award was filed before the court below by the Arbitrators the learned counsel for the parties were present. They did not have the knowledge about the filing of the award by the Arbitrators, but appeared in terms of the orders passed by the court which was monitoring the proceedings before Arbitrator. It is under these circumstances when the award was filed before the court below by the Arbitrators the learned counsel for the parties were present. They did not have the knowledge about the filing of the award by the Arbitrators, but appeared in terms of the orders passed by the court which was monitoring the proceedings before Arbitrator. 5. After the award was filed by the Arbitrators, the appellant filed his objections to the said award on 26-05-2007. The trial court rejected the objections of the appellant for the reason that the same are time barred and made the award rule of the court. This order of the trial court is the subject-matter of challenge before this court in the instant appeal. 6. Mr. Shah, learned counsel appearing for the appellant has raised following issues in this appeal; "a). That no notice as required under section 14(2) has been served on the parties, as such, the plea of limitation raised by the trial court is legally misconceived. b). That the notice as contemplated under section 14 (2) has to be formally communicated to the parties before they are called upon to file the objections to the award". 7. On the other hand, Mr. Qayoom appearing for the respondents has stated that the notice from the court under section 14 need not be given in writing, it can be oral, but what necessary is that a notice/ communication or information to the effect that an award has been filed in the court was given to the parties concerned. It is further stated that the present award has been filed under section 14(1) whereby the only requirement is that the Arbitrators are required to inform the parties in writing about the filing of the award in the court. His contention is that the present award has been filed by the Arbitrators under section 14(1) and not under section 14(2). It is further averred by Mr. Qayoom that the parties have appeared through their counsel and taken time to file objections to the award. Tins will be sufficient compliance of section 14(2). 8. I have heard the learned counsel for both the parties and also perused the record of the trial court. 9. Undoubtedly there are two eventualities provided under the Arbitration Act for the Arbitrators to file the award. One is under section 14(1) and other is under section 14(2). Tins will be sufficient compliance of section 14(2). 8. I have heard the learned counsel for both the parties and also perused the record of the trial court. 9. Undoubtedly there are two eventualities provided under the Arbitration Act for the Arbitrators to file the award. One is under section 14(1) and other is under section 14(2). Both cover two different situations. For facility of reference section-14 (1) & (2) are reproduced below; "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 them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award." 10. A perusal of the provision of the aforesaid section reveals that an award under section 14(1) can be filed by the Arbitrators at their own without intervention of the parties or the court. They are required to inform the parties in writing about signing and filing of the award in the court. Under section 14(2) award can be filed by the Arbitrators 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 duo in respect of the arbitration or on the intervention of the court. Once the arbitrators under section 14(1) inform the parties of the signing and filing of the award then no notice is required to be served upon the parties by the court. Intimation in writing by the Arbitrators to the parties that the award is being filed in the court will be deemed to be sufficient notice. Once the arbitrators under section 14(1) inform the parties of the signing and filing of the award then no notice is required to be served upon the parties by the court. Intimation in writing by the Arbitrators to the parties that the award is being filed in the court will be deemed to be sufficient notice. Under section 14(2) once the award is filed at the request of the parties or with the intervention of the court then the court is required to give a notice to the parties about the filing of the award. The distinction is obvious and clear. All that section 14 contemplates is that the Arbitrators who are in the control of the proceedings are required to file the award in the court and its intimation is required to be conveyed to the parties. If the Arbitrators at their own file the award before the court by informing the parties in writing about the date then the parties are bound to appear in the court on that date which would be a sufficient notice regarding the filing of the award and consequently they will be required to file objections within statutory period of 30 days. On the other hand if the arbitrators file the award at the request of the parties or through the intervention of the court a formal intimation has to be given to the parties about the filing of the award by the court. So in essence it is the act of the Arbitrators to file the award in the court which is required to be intimated to the parties. Once intimation is given by the Arbitrators at their own, that would be sufficient notice to the parties to appear on the date before court, but the intimation must be in writing and the proof of such intimation having been sent to the parties should be clearly borne by the record. In this eventuality the court need not to inform the parties about the filing of the award. Under section 14(2) once the award is filed by the Arbitrators the court is under an obligation to intimate the parties about the filing of the award as they have no prior intimation about the time and date of the filing of the award in the court by the Arbitrators. 11. Under section 14(2) once the award is filed by the Arbitrators the court is under an obligation to intimate the parties about the filing of the award as they have no prior intimation about the time and date of the filing of the award in the court by the Arbitrators. 11. In the present case the Arbitrators have filed the award in the court without informing the parties about the same as is required under section 14(1). It is also not in dispute that the counsel for the parties did not have any knowledge about the filing of the award in the court on 12-12-2006. They had appeared before the court below in terms of the order passed on 09-12-2006. So to construe it as a sufficient notice about the filing of the award would not be correct. Learned counsel for the respondents initially wanted to briny, this case within the purview of section 14(1), but later on he did not press this point so. 12. The next question that arises is that what is the mode of service on the parties to be adopted after the award is filed as contemplated under section 14(2), whether it is to be given to be given in writing or it can be oral. What is necessary is that notice, communication or information to the effect that an award filed by the court must be given in the court to the parties concerned. Notice to the counsel for the parties, who are representing the parties before the court, would be sufficient compliance of the requirement of section 14(2) of the Arbitration Act. 13. Mr. Shah states that where the court merely records the presence of the parties or their counsel, after an award is filed by the Arbitrator in the court, but does not indicate that the notice of the filing of the award has been given to the parties, no service of notice can be presumed from that order. He has laid stress that the trial court has rejected the objections of the appellant on the ground that the parties have sufficient notice of the filing of the award on 12-12-2006 and, as such; they were required to file their objections to the award within 30 days from that date. 14. He has laid stress that the trial court has rejected the objections of the appellant on the ground that the parties have sufficient notice of the filing of the award on 12-12-2006 and, as such; they were required to file their objections to the award within 30 days from that date. 14. There is no dispute in respect to this fact that the trial court in its order passed on 21-07-2007 has held that time to file objections would start from 12-12-2006 when the award was filed in the court in the presence of the parties. Undoubtedly this would not be a sufficient compliance of section 14(2). However, it is important to note that in the subsequent interim orders passed by the court, the parties have shown their awareness about the filing of the award and have taken time to file objections. This fact is clearly revealed from various orders passed on 03-03-2007, 21-04-2007, 12-05-2007, 19-05-2007 and 26-05-2007. After going through the contents of the interim orders passed by the court below it is apparent that the appellant had taken time to file objections on 21-04-2007 and he was required to file the same by 21-05-2007. It is admitted that the objections were filed on 26-05-2007. 15. As I am not inclined to accept the view of the trial court that filing of the objections on 12-12-2006 in the presence of the parties would be a sufficient compliance of section 14(2) of the Arbitration Act, but consequently it is also revealed that the appellant has taken time to file the objections on 21-04-2007. As already stated herein above, it is not mandatory to serve a formal notice in writing to the parties once the award is filed by the Arbitrators in the court, but what is necessary is that the parties must be aware of the filing of the award in the court by the Arbitrators. 16. There is no dispute with regard to the fact that the panics have shown their awareness about the filing of the award in the court and this would constitute a sufficient notice under section 14(2). I am fortified in this regard by the view taken by the Honble Supreme Court in case reported as Secretary to Govt. of Karnataka and Anr vs. V. Harishbabu, (1996) 5 SCC 400 on which both the parties have relied upon. I am fortified in this regard by the view taken by the Honble Supreme Court in case reported as Secretary to Govt. of Karnataka and Anr vs. V. Harishbabu, (1996) 5 SCC 400 on which both the parties have relied upon. What is held by the Honble Supreme Court in the aforesaid case is reproduced below; "It is the substance and not the form of the notice which is relevant and once it is established that a notice or communication or information of the tiling of the award has beet: issued by the court and served on the party concerned, the statutory requirement of Section 14(2) of the Act would stand satisfied. Keeping in view the difference in the phraseology of Sections 14(1) and 14(2) of the Act, it follows that the notice from the court under Section 14(2) of the Act need not be in writing, It can be oral also but what is necessary is that a notice, communication or information to the effect that an award has been filed in the court must be given by the court to the parties concerned. Notice to the pleaders of the parties, who are representing the parties before the court, would of course be sufficient compliance with the requirements of subsection (2) of Section 14 of the Act. A notice by the arbitrator under sub-section (1) of the Act is not a , substitute for the notice which the court is enjoined upon to issue under sub-section (2) of Section 14 of the Act. Where the arbitrator himself files an award in the court, the court is bound to give notice to the parties that the award has been filed and the court cannot pass a decree in terms of the award, unless such notice has been served on the party concerned and till after the expiry of a period of 30 days from the date of service of such a notice as contemplated by Article 119(b) of the Limitation Act, 1963. In a case where a party has knowledge aliunde of (he filing of the award and seeks time to file objections to the award, absence of a formal notice from the court would be rendered immaterial and In such a case the date when the party enters its appearance and either through an application in writing or orally seeks time to file objections to the award, shall be deemed to be the date of service of the notice within the meaning of sub-section (b) of Section 119 of the Limitation Act read with Section 14(2) of the Act." 17. In the face of the aforesaid judgment of the Honble Supreme Court, I do not find any merit in the arguments advanced by Mr. Shah that the parties were not informed about the filing of the award and no notice was given as required under section 14(2) Even though the order dated 12-12-2006 is not a sufficient compliance of section 14(2), but the conduct of the parties would reveal that they have sufficient knowledge of filing of the award as they had taken time to file objections in this behalf. I, therefore, hold that the time was taken by the appellant before the court below on 21-04-2007 to file objections to the award and the same has been filed on 26-05-2007 which is beyond the period of 30 days. 18. Accordingly, I find no force in this appeal and same is dismissed. Let the record of trial court be sent back forthwith.