Bhargava, J.:— This is an appeal against an order, dated the 30th May, 1945, made by the First Civil Judge of Saharanpur in an arbitration proceeding on a reference without intervention of a court. The reference was made on the 14th September, 1941, by means of an agreement, executed by Uggar Sen on his own behalf and on behalf of his son, Sansar Chand, and as guardian of his minor son, Babu Ram (first party), by Hari Chand for self and as guardian of his minor sons Chandra Bhan and Ghan Shyam, and Radhey Shyam (second party) and Tulshi Ram for self and as guardian of his minor son, Amar Nath (appellant), Shyam Lal and Om Prakash for self and as guardian of his minor son, Vinod Kumar (third party), and Bishan Chand (fourth party). The first party nominated L. Rahtu Mai, the second party nominated L. Dharam Das, the third party (to which the appellant belongs) nominated L. Jeet Ram and the fourth party nominated L. Kishan Lal as their respective panches, and Babu Maharaj Singh, Advocate, was nominated as sarpanch by all the parties.
The sarpanch and all the panches entered on the reference on the 21st December, 1941, and held sittings on various dates, when the evidence was recorded and the accounts were examined. When the case was taken up on the 12th September, 1943, Lala Jeet Ram was absent and the case was adjourned to the next day for further proceedings. On the 13th September, 1943, the sarpanch directed the panches to assemble on some early date for writing out the award.
On the 21st September, 1943, Tulshi Ram and his party filed an application in court, under section 5 of the Arbitration Act, 1940, praying that the arbitration agreement, dated the 14th September, 1941, be revoked firstly, because there had been an unreasonable delay in making an award and secondly, because the panches were siding with the other side and were hostile to the applicants and had “given expression to their feelings and sentiments.” These allegations were denied by the other side. The court found that the delay was due to the fact that the sarpanch was a busy advocate and the dates for hearing were fixed having regard to the convenience of the parties and that there was a fair trial before the arbitrators and the proceedings were over and only the award had to be written out. Accordingly, the application was rejected on the 23rd December, 1943, and the sarpanch and the panches were directed to make an award as early as possible.
The case was taken up by the arbitrators on the 9th January, 1944; but L. Jeet Ram did not appear in spite of notice having been given to him by the sarpanch. The award was made by the sarpanch and the remaining panches, and was written out on a stamped paper and registered on the 23rd January, 1944.
On the 5th April, 1944, Uggar Sen and others filed an application in court praying that the sarpanch be directed to file the award in court. The award was filed on the 31st May, 1944. On the 15th July, 1944, Tulshi Ram and his party, with the exception of Amar Nath, filed an objection to the award. Among other grounds, they challenged the validity of the award on the ground that it had been made beyond time and without information to the arbitrator L. Jeet Ram, who was not consulted when it was made. Another objection was filed by the appellant Amar Nath. He contended that his father Tulshi Ram, did not look after his interest; that the agreement of reference was ilk-gal as it was executed during his minority; that the agreement and the award were not binding upon him and that the award which was made in his absence was vitiated on account of the misconduct of the arbitrators. The misconduct alleged by him was with reference to a particular mortgage deed and certain debts said to be time-barred.
The learned Civil Judge overruled these objections. He held that the agreement and the award were binding on Amar Nath, who was duly represented by his father; that the arbitrators were no guilty of any misconduct and the arbitrator Jeet Ram deliberately absented himself and refused to sign the award at the instance of the party, who had appointed him, namely Tulshi Ram and others; and that the award was not made beyond time and was not invalid on that ground.
The learned counsel for the appellant has raised two points before us:
(1) that the appellant was a minor when the agreement of reference was executed and his interest was not properly looked after by his guardian; consequently the agreement and the award were not binding upon him; and
(2) that the award was invalid inasmuch as the arbitrators had misconducted themselves and the proceedings.
The learned counsel for the appellant in his argument did not lay as much stress on the first point as he laid on the second. The appellant was, no doubt, a minor when the agreement was executed; but his own father, as his natural guardian, executed the agreement and fully represented him in the proceedings before the arbitrators. There was no conflict of interest between the appellant and his father and there is nothing on the record to show that the appellant's interest was neglected. We, therefore, see no force in the first contention.
The appellant's learned counsel, while dealing with the second point, challenged the validity of the award on two grounds: (1) The award was not filed within the time prescribed by rule 3 of the First Schedule appended to the Arbitration Act and the court never granted any extension of time; hence the arbitrators were guilty of legal misconduct inasmuch as they had misconducted the proceedings; and (2) the arbitrator Jeet Ram was not present at all the sittings of the arbitration and did not sign the award. It may be noted here that the appellant did not raise this plea in his petition of objections filed on the 15th July, 1944. As they are questions of law they have been allowed to be argued in this appeal. It is true that the award was not filed within four months after the date on which the arbitrators entered on the reference. But we are not prepared to hold that the time for filing the award was never extended by the court. When the court made an order on the 23rd December, 1943, directing the sarpanch and the panches to make an award as soon as possible and to file if in court, the time for filing the award was extended. Under section 28 of the Arbitration Act the court could extend the time, if it thought fit, even after the time fixed for making the award had expired.
On behalf of the appellant it has been argued that an objection having been raised and an application for revocation of the agreement having been filed, the court had no power to extend the time and, even if it had such a power, it did not exercise the discretion properly. The learned counsel for the appellant urged that the time for making the award having been prescribed by the statute, the arbitrators had no power to enlarge the time after the expiry of the prescribed period. He pointed out that section 9 of the English Arbitration Act also contained a provision similar to that contained in section 28 of the Indian Arbitration Act, the view taken by the courts in England was—
“The enlargement of the time must be in writing, and must be signed by the arbitrator or arbitrators; after the time for making the award has expired, there is no longer any power in the arbitrator or arbitrators to enlarge the time.”
(Halsbury's Laws of England, Volume I, para. 1107, page 655).
We do not consider it necessary or desirable to construe the clear provisions of our enactment with reference to English Law. Section 28 gives unrestricted powers to court to enlarge the time for making the award irrespective of the fact “whether the time for making the award has expired or not and whether the award has been made or not”, provided it thinks fit. In the petition of objections filed on the 21st September, 1943, it was alleged that there was unreasonable delay in making the award, but the court found that the arbitrators were not responsible for the delay and that the proceedings were over except for filing of the award. Therefore, the court had power to enlarge the time and, in the circumstances of the case, it exercised its discretion properly. As the arbitrators were not responsible for the delay, it is not possible to hold that they had misconducted the proceedings.
The award filed after the expiry of the prescribed period was not invalid. The application for revocation of the agreement having been rejected, the reference remained in force and the arbitrators could proceed with the arbitration. The parties continued to participate in the proceedings and thereby consented to the arbitrators continuing the proceedings. True, there was no formal application made to the court to extend the time but that by itself could not affect the validity of the award.
Section 30 of the Arbitration Act lays down that—
‘An award shall not be set aside except on one or more of the following grounds namely:
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) …;
(c) that an award has been improperly procured or is otherwise invalid.”
It has not been argued before us that the arbitrators misconducted themselves; but it has been urged that the arbitrators misconducted the proceedings inasmuch as there was unreasonable delay in filing the award. We have already pointed out that the arbitrators were not responsible for the delay in making the award, and having gone through the proceedings recorded by the arbitrators, we are not prepared to hold that they had misconducted the proceedings.
The appellant's learned counsel next contended that the award was “otherwise invalid”; but we see no force in this contention either. The absence of an application for extension of time was a mere irregularity. It was not an illegality. It is not possible to lay down any hard and fast rule to find out whether a non-compliance with a certain requirement of law amounts to an irregularity or illegality; but one good test has been laid down in Ashutosh Sikdar v. Behari Lal Kirtania(1). There it was observed by Mookerjee, J.:
“One test, however, is well established, and is often useful; as was observed by Mr. Justice Coleridge in Holmes v. Russell(2), ‘it is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity if he cannot, it is a nullity:”
Applying this test the omission to make a formal application for extension of time was a mere irregularity which the parties had waived by their conduct. Moreover, in face of the order, dated the 23rd December, 1943, which the court had jurisdiction to pass under section 28 of the Act, the delay in filing the award did not render it invalid.
The next argument put forward on behalf of the appellant was that the award was invalid because Jeet Ram was not present at all the sittings of the arbitration and had not signed the award. It may be pointed out that it was never said that Jeet Ram was not present at all the sittings of the arbitration when the evidence was being recorded or the accounts were being examined. Tulshi Ram had only alleged that Jeet Ram had received no information about the making of the award; nor had he taken part in the consultations or the preparation of the award. Jeet Ram was no doubt absent when the award was delivered; but we find from the proceedings, dated the 13th September, 1944, as well as from the statement of Babu Maharaj Singh, the sarpanch, in whom all the parties had confidence, that Jeet Ram did not attend the final sitting in spite of the notice given to him, Jeet Ram was the arbitrator nominated by Tulshi Ram and his party. Babu Maharaj Singh stated on oath:
“Jeet Ram arbitrator told me that he is being pressed by the party by whom he is appointed arbitrator not to sign the award and will not therefore attend.”
It, therefore, appears that after the attempt made by Tulshi Ram, etc. to have the agreement revoked failed, they induced their own nominee to absent himself from the final sitting and to refuse to sign the award.
A perusal of the proceedings recorded by the arbitrators goes to show that between the 21st December, 1941, and the 18th July, 1943, L. Jeet Ram was present on several dates of hearing. He was not present on the 12th September, 1943, and the party which had nominated him was directed to bring him on the next date of hearing. After that date on the 21st September, 1943, the party who had nominated him filed an application in court for revocation of the agreement and the arbitrator nominated by him did not take part in the arbitration proceedings, and the apparent reason for his absence has already been indicated above. It was provided in the deed of agreement that the decision of the arbitration would be by majority. If, in these circumstances, one of the five arbitrators could not sign the award, it was not invalidated on that account.
On behalf of the appellant reliance has been placed upon Nand Ram v. Fakir Chand; Thammiraju v. Babiraju; Ramdhar v. Santadhar(3); Ayyesami Mudaliar v. Appandai Nynar(4) and Laljee Jaising v. S.P Tewari(5). In Nand Ram v. Fakir Chand one of the arbitrators withdrew from the arbitration after the first sitting and refused to take any further part in it; and, in the circumstances of that case, Mahmood, J. pointed out that the presence of all the arbitrators at all sittings and above all at the last sitting, when the final act of arbitration is done, is essential to the validity of the award. This view was followed in the Madras and the Nagpur cases cited above. In the other Madras case and the Rangoon case a similar view was taken. In all these cases one of the arbitrators had either not taken part in the arbitration proceedings or not signed the award, and it was held that the award made by other arbitrators was invalid and no decree could be passed in terms of such an award. These rulings laid down the broad proposition of law based upon the general principle that all the arbitrators to whom a matter has been; referred for decision must take part in the deliberations and sign the award made by them. The principle has also been incorporated in section 14 of the Arbitration Act.
There may, however, be cases where it may become impossible to apply this general principle. The present case affords an instance of such a case. Here all the arbitrators took part in the arbitration proceedings and the stage of making the award had arrived. One of the parties to the reference gathered an impression that the award might go against him. He induced his nominee not to take part in the preparation of the award and to refuse to sign the award made by the majority of the arbitrators. An interested party in such circumstances cannot be allowed to get over the reference in this manner. Tulshi Ram and his party having failed to get the agreement revoked in the manner provided by law, they resorted to this dodge and it could not be permitted.
In similar circumstances in Ram Sunder Tewari v. Mst. Kulwanti it was pointed out by this Court that, though the absence of the signature of one of the arbitrators was a legal flaw, the party procuring it could not take advantage of it and the award should be affirmed. In Kazee Syud Naser Ali v. Musammat Tinoo Dossia it was held that the absence of one arbitrator out of three who have been appointed does not vitiate the award, if the parties agreed to be bound by the decision of a majority. The view expressed in this case was not followed in Nand Ram's case; but, in circumstances like those of the present case, we will take a similar view.
We, therefore, hold that, in the circumstances of the present case, the award was not invalidated on account of the refusal of Jeet Ram to take part in the preparation of the award or to sign the award of the majority of the arbitrators. At the most it was a mere irregularity which did not vitiate the award of the majority. The award was, therefore, not otherwise invalid and we over-rule the second contention also.
The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed.