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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Hiralal Chakravarty
  • Subodh Kumar Bhattacharya
Judges
  • Mookerjee
  • Guha, JJ.
Acts
  • Arbitration Act and the Code of Civil Procedure Schedule II.
  • provisions contained in Article 158 of the Limitation Act
  • Order 3 Rule 5 of the Code of Civil Procedure.
  • section 14(1) of the Arbitration Act
  • Article 158 of the Limitation Act
  • Arbitration Act, 1940, 4th Schedule,
  • sec. 14(1) of the Arbitration Act
  • Article 158 in the Act of 1908
  • Art. 158 of the Limitation Act,
  • sec. 28 of the Arbitration Act
  • Amending Act 18 of 1919, 10
  • Limitation Act, 1871, 10
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Hiralal Chakravarty
  • Subodh Kumar Bhattacharya
Judges
  • Mookerjee
  • Guha, JJ.
Acts
  • Arbitration Act and the Code of Civil Procedure Schedule II.
  • provisions contained in Article 158 of the Limitation Act
  • Order 3 Rule 5 of the Code of Civil Procedure.
  • section 14(1) of the Arbitration Act
  • Article 158 of the Limitation Act
  • Arbitration Act, 1940, 4th Schedule,
  • sec. 14(1) of the Arbitration Act
  • Article 158 in the Act of 1908
  • Art. 158 of the Limitation Act,
  • sec. 28 of the Arbitration Act
  • Amending Act 18 of 1919, 10
  • Limitation Act, 1871, 10
See more information ...
Smart Summary

Structured Summary of the Opinion — Mookerjee, J.

Factual and Procedural Background

This is a petition for revision of an order of the Subordinate Judge, 5th Court, Alipore, which had overruled an objection filed by the defendant (Mahadev Mullick) to an Award made by arbitrators. The Award was filed by the arbitrators on 21 September 1949 in T.S. No. 182 of 1948. One defendant, Mahadev Mullick, filed an objection to the Award on 17 December 1949. The plaintiff, Bhola Nath Mullick, raised a preliminary objection that Mahadev's objection was barred by limitation.

Earlier, the plaintiff had filed an application under section 28 of the Arbitration Act seeking an extension of time (retrospectively) because the arbitrators had not filed their Award within the originally specified period; the stipulated time had expired on 6 February 1946. Mahadev opposed that extension. On 11 December 1948 the miscellaneous case (registered on the sec. 28 application) was struck off and the application was registered as a plaint. Although Mahadev had appeared during the miscellaneous case stage, he did not enter appearance after the application was registered as a plaint. The Court later fixed a time within which the arbitrators filed their Award.

After filing the Award, a notice purporting to be under section 14(1) of the Arbitration Act was issued by the arbitrators on 27 September 1949; Mahadev received that notice on 10 October 1949. The court itself did not issue the formal notice required under sub‑section (2) of section 14 after filing. Mahadev learned of the filing by 28 October 1949 and applied to the Court for permission to inspect the Award on that date; he was permitted to inspect it. Despite that, Mahadev's objection was filed on 17 December 1949 — beyond 30 days from the date of filing/knowledge.

Legal Issues Presented

  1. Whether the objection to the arbitrators' Award filed by the defendant on 17 December 1949 was barred by limitation under Article 158 of the Limitation Act (as amended), which prescribes 30 days "from the date of the service of the notice of filing of the Award".
  2. Whether service of the court's notice under section 14(2) of the Arbitration Act is necessary to start the running of limitation, or whether a party's actual knowledge of filing (or appearance in proceedings/inspection of the Award) suffices to commence limitation.

Arguments of the Parties

The opinion contains limited direct recounting of party pleadings; the following summarizes the party positions as presented in the text.

Plaintiff's Arguments

  • The plaintiff (Bhola Nath Mullick) contended that Mahadev's objection was barred by time (limitation) and could not be entertained.
  • On the specific point of commencement of limitation, the plaintiff argued that the 30‑day period would begin to run at least from the date when Mahadev had knowledge that the Award had been filed.

Defendant's Position (as presented)

  • The defendant (Mahadev Mullick) filed an objection to the Award on 17 December 1949. The opinion notes that Mahadev had appeared earlier in the miscellaneous proceeding and later applied to inspect the Award on 28 October 1949, indicating he sought to act after learning of the filing; however the opinion does not set out any specific legal argument by Mahadev against the plea of limitation beyond filing the objection.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohammed Tahsin v. Basan Roy (A.I.R. 1930 All. 477) Under the earlier Article (1877 Act) time began to run from when the Award was filed in Court; time would begin to run from when notice of filing was given to the parties (when such notice was received by the party). Used to show that earlier jurisprudence treated the date of court notice/receipt as the commencement point for limitation under earlier statutory regimes.
Punnoram Nevraj (I.L.R. 20 All. 474) Supports the view that time would not begin to run even if a party obtained knowledge from other sources; limitation ran only from the court's notice. Referenced to show the prior position in certain jurisdictions (Allahabad, Lahore) that formal court notice was required.
Chatturbhoj v. Ganeshram (A.I.R. 1925 Lah. 619) Same principle as Punnoram Nevraj regarding necessity of court notice for commencement of limitation. Referenced to illustrate the earlier uniform view in some High Courts.
Sarojbala v. Jatindra Nath (45 C.L.J. 458; A.I.R. 1927 Cal. 619) Intimation sent by Bench Clerk to party's lawyer (pleader) is sufficient notice to start limitation; notice to pleader/agent is sufficient compliance under paragraph 10, Schedule II CPC / Order 3 Rule 5 CPC. Cited to support the proposition that notice to a pleader or agent is adequate and, where the party has appeared or the pleader is informed, separate formal notice may be unnecessary.
Bholanath Roy v. Buttokrishna Roy ((1927) A.I.R. Pat. 135) Where a lawyer initials an order sheet recording a Court order that notice be given, that amounts to waiver by the party of any other formal notice; notice to pleader suffices. Used to show that formalities may be dispensed with where the party (through pleader) has been made sufficiently aware.
Valchand Deepchand v. Gulba Lakshman (A.I.R. 1926 Bombay 312) Notice of the filing of an award given to a pleader or agent is sufficient under the Article requiring notice. Supports the rule that notice to pleader/agent starts limitation.
Gyan Singh v. Harbilas (A.I.R. 1930 All. 711) Same principle: service of notice on pleader or agent is sufficient. Reinforces precedent that notice to representative suffices to commence limitation.
Mairamjan Bibi v. Ash Raddi (43 C.W.N 924) Under Article 158 (earlier understanding) parties had to make application to set aside Award within prescribed days only when the Award is filed and notice is duly given to parties under paragraph 10, Schedule II CPC; lack of proper notice can invalidate subsequent proceedings based on the Award. Quoted to show the mandatory character previously attached to the court's duty to serve notice and consequences of non-service; used to explain why service is generally significant.

Court's Reasoning and Analysis

The court analyzed the question by examining statutory provisions and prior authorities concerning when limitation begins to run for filing an application to set aside an arbitral Award. The key statutory provision was Article 158 of the Limitation Act (as amended) which prescribes 30 days "from the date of the service of the notice of filing of the Award." The court traced the historical changes in the Limitation Act and related procedural provisions:

  • The court noted earlier versions (Limitation Act 1871 and the 1877 Act) gave 10 days and tied commencement to filing/submission and notice; earlier authorities had held time would begin from when notice of filing was given to the party.
  • The court acknowledged that mandatory provisions in Schedule II of the Code of Civil Procedure (paragraph 10) previously required the Court to give notice and that in some cases non‑service had been treated as fatal (see Mairamjan Bibi v. Ash Raddi).
  • The court observed authorities (e.g., Sarojbala, Bholanath Roy) that treated notice to a pleader or an agent as sufficient to start limitation, and that an entry/initial on the order sheet by a pleader may amount to waiver of further formal notice.

Turning to the facts, the court emphasized that in the present case: (a) the arbitrators issued a notice purportedly under section 14(1) of the Arbitration Act (which Mahadev received on 10 October 1949), but the formal notice by the Court under section 14(2) was not issued; (b) Mahadev applied to inspect the Award on 28 October 1949 and was permitted to do so (i.e., he appeared in Court in relation to the Award); and (c) he did not file his objection until 17 December 1949 (more than 40 days after his inspection/application and beyond the 30‑day period).

The court reasoned that when a person entitled to notice himself enters appearance in the proceedings (for example, applies to inspect the Award and is permitted to do so), that appearance is effectively equivalent to service of the notice for the purposes of starting limitation. The judge explained the practical rationale: if appearance did not suffice, parties could appear and then claim no limitation had begun unless a separate formal notice was served — an illogical outcome since appearance itself demonstrates awareness. Thus, on these particular facts, because Mahadev had entered appearance and availed himself of inspection facilities, there was no further necessity for separate service of the court's notice and the 30‑day period ran from his appearance/inspection date.

The court also observed that although it might be debatable whether mere extraneous knowledge (from other sources) of filing the Award would always waive the requirement of formal service, on the presented facts — where the defendant appeared in Court and sought inspection — separate service was unnecessary.

Holding and Implications

Holding: The court held that the objection filed by the defendant on 17 December 1949 was barred by limitation. The rule (petition) was made absolute with costs, and the order passed by the learned Subordinate Judge on 18 April 1950 (which had overruled the limitation plea) was set aside. The Court would proceed to deal with the Award according to law.

Implications:

  • Direct effect: The defendant's objection to the Award was time‑barred and therefore could not be entertained; the Subordinate Judge's order overruling the limitation objection was reversed. The court will proceed with the Award in accordance with law.
  • Broader precedent: The opinion interprets Article 158 as allowing limitation to start when a party entitled to notice actually enters appearance in the proceedings (such as by applying to inspect the Award), making separate formal service unnecessary in that situation. The court acknowledges that the precise effect of extraneous knowledge (knowledge from other sources) could be debatable, but on the facts where the party appeared, service was unnecessary. The opinion does not purport to lay down an absolute rule for all cases beyond those facts.

Judgment concurrence: Guha, J. agreed with Mookerjee, J. (as recorded in the opinion).

This summary is strictly confined to the information contained in the provided opinion and does not add or infer facts beyond that text.

Show full summary ...

    Bholanath Mullick v. Mahadev Mullick Opposite Party.

    Mookerjee, J.:— This is a petition for revision of an order passed by the Subordinate Judge, 5th Court, Alipore, overruling an objection filed by the defendant opposite party to an Award filed by arbitrators.

    2. The Award in question was filed by the arbitrators on September 21, 1949, in a pending proceeding in T.S No. 182 of 1948. One of the defendants, Mahadev Mullick, the opposite party in this Court, filed an objection on December 17, 1949. The preliminary objection was taken by the plaintiff Bhola Nath Mullick that the objection was barred by time and cannot be entertained by the Court.

    3. The learned Subordinate Judge held that the plea of limitation could not be entertained.

    4. To appreciate the point in issue we may set out some of the relevant facts in this connection. The plaintiff petitioner originally filed an application under sec. 28 of the Arbitration Act pleading that the dispute between him and the defendant Mahadev had been referred to the arbitration of two persons but that the said arbitrators, had not filed their Award within the specified time. He accordingly prayed that the Court might extend the time for the filing of the Award with retrospective effect as the stipulated time had expired already on February 6, 1946. Mahadev Mullick, who is the defendant, filed an objection to such extension of time. On December 11, 1948, the Miscellaneous Case which had been registered on the filing of the application under sec. 28 of the Arbitration Act was struck off and the application already filed was registered as a plaint. Though Mahadev had appeared in the earlier stage during the pendency of the Miscellaneous Case he did not enter appearance after the application was registered as a plaint. The arbitrators, as already stated, filed the Award within the time fixed by the Court in T.S No. 182 of 1948.

    5. After the filing of the Award in Court a notice purporting to be under sec. 14(1) of the Arbitration Act was issued on September 27, 1949. Mahadev Mullick received that notice on October 10, 1949. No formal notice was given to the parties about filing of the Award but on October 28th, 1949, Mahadev, coming to know of the filing of the Award, made an application in Court for permission to inspect the Award so that he might file an objection.

    6. Under Article 158 of the Limitation Act an application to set aside the Award is required to be filed within 30 days “from the date of the service of the notice of filing of the Award”.

    7. As stated already only the notice as required under section 14(1) of the Arbitration Act was issued by the arbitrators in this case. The notice that the Court is required to issue to the parties under sub-sec. 2 of sec. 14 after the filing of the Award, was never issued. Mahadev, however, had from some source or other, knowledge about the filing of the Award and that was on or before the 28th October, 1949, when he applied for permission to inspect the Award and was so permitted. The objection to the Award was filed by Mahadev on December 17, 1949, beyond 30 days, from the date of the filing of the Award as also from his date of knowledge that the Award had been filed.

    8. On behalf of the plaintiff petitioner it is contended that 30 days would begin to run at least from the date when Mahadev knew that the Award had been filed.

    9. The provision in the Limitation Act fixing a time limit for the filing of a petition for setting aside an Award has varied from time to time.

    10. In the Limitation Act, 1871, 10 days' time was allowed under Article 155 from:— “when the Award is submitted to, the Court and notice of the submission had been given to the persons and in the manner prescribed by the High Court”.

    11. In the Act of 1877 the corresponding provision was in Article 158 and the same period of 10 days was to commence from after— “When the Award is submitted to the Court”.

    12. Article 158 as was introduced in the Act of 1908 by the Repealing and Amending Act 18 of 1919, 10 days' time was allowed from “the date of service of the notice of filing of the Award.”

    13. It is unquestionable that under Article 158 of the Act of 1877 time was to run from the date when the Award was filed in Court. There was no scope for any argument that the starting point would be something different. Before the amendment of 1940, it was held in a series of decisions that time would begin to run from when notice of the filing of the Award was given to the parties, that is, when such notice was received by the party, Mohammed Tahsin v. Basan Roy (1) (A.I.R 1930 All. 477). The Allahabad and Lahore view was that time would not begin to run even if the party had obtained knowledge from other sources about the filing of the Award—time would run only from the date when the Court gives notice. Punnoram Nevraj (2) (I.L.R 20 All. 474), Chatturbhoj v. Ganeshram (3) (A.I.R 1925 Lah. 619).

    14. A distinction, however, was made where an award is filed in Court by the parties themselves and at that stage the Court intimates that objection is to be filed within a particular date. Intimation sent by the Bench Clerk to the party's lawyer is a sufficient notice for the starting of limitation. Sarojbala v. Jatindra Nath (4) (45 C.L.J 458). Where a lawyer initials the order sheet wherein is recorded an order by the Court that notice be given to the parties amounts to a waiver by the party to any other formal notice, Bholanath Roy v. Buttokrishna Roy (5) [(1927) A.I.R Pat. 135].

    15. It has been consistently held that notice of the filing of an Award if given to a pleader or an agent of the party would also be sufficient under this article. Sarojbala v. Jatindranath (4) (A.I.R 1927 Cal. 619), Bholanath v. Butto Krishna (5) (supra), Valchand Deepchand v. Gulba Lakshman (6) (A.I.R 1926 Bombay 312) and Gyan Singh v. Harbilas (7) (A.I.R 1930 All. 711).

    16. It may be noticed that provisions for the service of notice on the parties were different in the old Arbitration Act and the Code of Civil Procedure Schedule II. Under the repealed section 11(2) it was the duty of the Arbitrator or Umpire to give notice. Under para. 10 of Schedule II of the Code of Civil Procedure the notice was required to be given by the Court. This provision in paragraph 10 was held to be a mandatory one. In Mairamjan Bibi v. Ash Raddi (8) (43 C.W.N 924), it was observed that “under Article 158 of the Limitation Act it is only when the Award is filed and notice of the Award is duly given to the parties under paragraph 10, Schedule II, mentioned above that the parties have got to make application for setting aside the Award within 10 days from the date thereof”. The Award in that case had been filed en January 2, 1936, and on that date the Court recorded an order that the Arbitrator having filed the Award the case was adjourned to 13th January, 1936, for final disposal— “parties to file objection, if any, in time.” In 1936 the period within which objection could be filed was limited to 10 days only. In this case no notice was either served on the parties or was the order itself shown to the respective pleaders, far less their signatures obtained. Two of the defendants appeared on the 13th January and prayed for time to file objections to the Award. These defendants did hot file any objection within the next date fixed and a decree was passed on the basis of the Award on the 20th January, 1936. Two other defendants filed an appeal and an objection based upon the non-service of the notice under paragraph 10 was given effect to.

    17. As pointed out already that Article 158 in the Act of 1908 as amended by the Arbitration Act, 1940, 4th Schedule, the period of limitation is 30 days to run from the date of the service of the notice of filing of the Award. No doubt the Court has no power to pass a decree on an Award unless notice is given to the parties to file objections, Mairamjan, Bibi v. Ash Raddi (8) (43 C.W.N 924). But as observed in Sarojbala Base v. Jatindra Nath Bose (4) (45 C.L.J 458) a notice to a pleader of the party as to filing of Award in Court though communicated but not received by the party personally was a sufficient compliance with the provisions contained in paragraph 10 of Sch. 2 read with Order 3 Rule 5 of the Code of Civil Procedure. Although the Bench Clerk had communicated the fact of the filing of the Award of the arbitrators to the pleader though no signature was obtained on the order sheet that would be deemed to be sufficient compliance with the mandatory provision referred to above. The importance of the provisions about service of notice is that the parties may apply to the Court within 30 days of such service of notice for remitting or for setting aside the Award. If, the party is not only already cognisant of the filing of line Award but has applied to the Court for facilities to examine the award filed there will be no necessity for serving such a party again. In the present case the party in question applied to Court for leave to examine the award and for time to file objections. Had the party not filed the aforesaid application there could not have been any question of that party being barred by lapse of time. Limitation would not begin to run. Mandatory provisions contained in Article 158 of the Limitation Act as it now stands becomes unnecessary for strict application when the party has already appeared in the case.

    18. It may be a debatable question whether proof of knowledge of the filing of the Award from extraneous source would be sufficient compliance of the mandatory provision contained in Art. 158 or not However, the defendant having appeared in Court there is no further necessity of serving him with notice.

    19. There is no explanation why after the defendant had applied on the 28th October, 1949, to Court for permission to inspect the award the objection was not filed until 17th December, 1949, more than 40 days after such appearance in Court. The materiality of the service consists in the fact that a party has been properly made aware of the matter contained in the notice. The Code of Civil Procedure provides for the service of notice in the usual way on the defendant or respondent as the case may be after a suit or an appeal respectively is filed. If the defendant or the respondent enters appearance service becomes unnecessary.

    20. Reliance however is placed on the language used in the third column in Art. 158 of the Limitation Act, namely, “the date of service of the notice.” This change in the language was effected to avoid the doubt which had arisen on the earlier provision which required a notice to be given. Whether it be under the earlier provisions or the pro visions now contained in Art. 158 the date when a party, entitled to notice, himself enters appearance in the proceedings will be deemed to be the date of the service of notice of the filing of the award. We need not enter into the evidence to find out whether such person had prior knowledge of the filing of the award or not. The defendant himself by entering appearance makes it unnecessary for having a separate notice served on him.

    21. If this be not the correct interpretation on the special facts of this particular case the position would be that a person entitled to, notice may appear in the proceedings and not file the objection at all. What new fact would have been brought to his notice by having a notice served on a person who is already appearing in the proceedings?

    22. In this view it must be held that the objection filed by the defendant of the 17th December, 1949, was barred by limitation. This rule is accordingly made absolute with costs and the order passed by the learned Subordinate Judge on the 18th April, 1950, is set aside. The Court will now proceed to deal with the award according to law.

    Guha, J.:— I agree.

    A.K.D.G

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    Comments

    Bholanath Mullick v. Mahadev Mullick Opposite Party.
    (Sep 6, 1951)