G.P. Bhutt J.-
This appeal under section 39 (1), clause (6), of the Arbitration Act, 1940 (X of 1940), is directed against the order refusing to set aside an award.
2. Parties to the appeal are brothers who referred the dispute relating to the partition of their property to arbitration by two separate agreements, dated the 19th September 1949, Exhibits N. A. 1 and N. A. 2. The arbitrators gave the award on the 5th October 1950. The appellant thereupon served the umpire with a notice, dated the 26th October 1950, to file the award in Court. Later he moved the lower Court on the 2nd December 1950 for directing the umpire to file the award. The Court thereon passed the following order:
Application for filing the award presented today by Shree D. P. Agarwal, pleader for the plaintiff. It, be registered as a suit. Let notice be issued to the arbitrator to file the award by the 22nd January 1951. P. F. paid. Case for 22-1-1951.
On the 22nd January 1951 the appellant was present with his pleader, when the umpire filed the award in Court in their presence. As the Presiding Judge, however, was busy in a Sessions trial the case was adjourned to the 21st February 1951. On this day the umpire was again present and the appellant who was present by his counsel was directed to pay to him Rs. 25 as costs for filing the award. Notice was also directed to be issued to the respondent and the case was fixed on the 30th March 1931 for hearing. On this date both the parties were present with their counsel. The respondent filed his application accepting the award and praying for a decree in terms thereof. The appellant, on the other hand, prayed for time to file an objection. His request was granted and the case was adjourned to the 4th July 1951. He filed his objection on the 10th April 1951. The question is whether the objection was barred by limitation. Parties agreed that other grounds of appeal might be taken up for hearing only if the question of limitation was decided in the negative.
3. The case is governed by Article 158 of the Indian Limitation Act, 1908, which is as below:
158. Under the Arbitration Act, 1940, Thirty days. The date of service of the notice to set aside an award or to get an of filing of the award, award remitted for reconsideration.
In the Limitation Act, 1871, 10 days' time was allowed under Article 155, the third column whereof was in these terms:
When 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.
In the Act of 1877 the period of limitation prescribed in Article 158 was 10 days as before but it was to run from the date when the award was submitted to the Court. Under Article 158 of the Act of 1908 as introduced 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". Later the period of limitation was extended to 30 days and Article 158 in the present form was substituted by section 49 read with Fourth Schedule of the Arbitration Act, 1940.
4. Until the Arbitration Act, 1940 was passed, reference to arbitration in a pending litigation was governed by the Code of Civil Procedure. The procedure was, therefore, governed in such cases -by the provisions of the Code. So far as matters covered by the Arbitration Act 1899, were concerned, the High Court was given power under section 20 to make rules as to proceedings in Court. In the Arbitration Act of 1940, section 42 provides the procedure for notice which is required to be served otherwise than through the Court. So far as proceedings in Court are concerned, the High Court is empowered to make rules under section 44. In the absence of such rules the ordinary procedure under the Code can be adopted, vide section 41. No rules are made by the High Court under the Act. There is, therefore, no prescribed procedure for service of notice through the Court under the Arbitration Act. As regards the provisions of the Code of Civil Procedure on the subject, they only aim at bringing the proceeding to the notice of the person concerned, and prescribe the methods whereby this may be done or may be deemed to be done (see Order V, Civil Procedure Code). Where, therefore, the person concerned has already due notice of the Us, there appears no reason why the failure to issue a formal process should be held to vitiate the proceedings.
5. Section 14 of the Arbitration Act, 1940, contemplates a case where the arbitrators or umpire file the award in Court when both the parties to arbitration may be absent. It is for this reason that provision is made in sub-section (2) requiring the Court to give notice to the parties of the filing of the award. A strict view was, however, taken in Chaturbhuj Das v. Ganeshram (I L R 20 All. 474) following Rangasami v. Muttusami (I L R 11 Mad. 144) that it was incumbent on the Court under section 516 of the Civil Procedure Code, 1882, to issue notice to the parties even if they had knowledge of the filing of the award aliunde. This decision was followed by Moti Sagar J. in Gurdttta Mai v. Firm of Basanta Mai Panna lal (A I R 1925 Lab. 619) in a case under clause 10, Schedule 2, of the Code of Civil Procedure, 1908. The same view was held by Bachawat J. in Ganeshmal v. Kesoram Cotton Mills (AIR 1952 Cal. 10) in a case under section 14 of the Arbitration Act of 1940.
6. However, we do not find from the statement of facts in Rangasami v. Muttusami (2) that the party concerned had notice aliened of the filing of the award. With all respect, therefore, we fail to see how it could be made the foundation for the strict view that was taken in the other decisions noted above. It appears to us that such a strict view is not warranted by the terms of Section 14 of the Arbitration Act, 1940, or the corresponding section 11 of the Arbitration Act, 1899, or other provisions of the Code of Civil Procedure on the subject, which really contemplate that notice has to be given to the parties who have no knowledge of the filing of the award. In Bholanath v. Mahadev (AIR 1952 Cal. 226) it was held that where a party who was already cognizant of the filing of the award and applied for leave to examine the award and for time to file objections, service of notice of the filing of the award was unnecessary, and time began to run under Article 158 of the Indian Limitation Act from the date when he entered appearance in the proceedings. In our opinion this represents the correct view of law, although the Court will not ordinarily presume a party to be aware of the filing of the award unless the matter is beyond doubt.
7. In the instant case the proceedings were initiated at the instance of the appellant himself. The first order of the Court was passed in the presence of his counsel who had already paid process-fee for issue of the notice to the umpire to file the award. He was, therefore, clearly aware that the 22nd January 1951 was fixed by the Court for filing of the award by the umpire. On that date the appellant was also present personally along with his counsel, when the umpire filed the award in their presence. On the 21st February 1951 the Court passed a significant order directing the appellant who was present by his counsel to pay Us. 25 to the umpire as costs for filing the award, which clearly brought to his notice that the award was filed. Simultaneously a notice was directed to be issued to the respondent, which clearly indicated that the matter was to be heard on the next date of hearing. In these circumstances there can be no doubt that the appellant had notice of the filing of the award both on the 22nd January 1951 when the award was filed by the umpire in his presence and on the 21st February 1951 when costs were directed to be paid by him to the umpire for filing the award. In this connection Hari Chand v. Lachhman Das (AIR 1948 E. Pun. 11) is distinguishable inasmuch as it did not appear clear from the orders in that case that the party definitely knew of the filing of the award, although the fact that the award was filed was mentioned in the orders. However, even this ruling recognises the principle that the notice can be oral and can also be implied from the orders passed in the course of the proceedings. In the instant case the order directing the appellant to pay to the umpire the costs of the filing of the award was a clear notice to him that the award was filed, particularly when he himself had moved in the matter and the award was filed in his presence.
8. An agreement of reference to arbitration is of a solemn character which is binding on the parties; so is the award. If, therefore, a party wishes to avoid the effect of the agreement or award, he must strictly comply with the provisions of law. In Ebrdhim Kassam v. V. I. Oil Industries (AIR 1951 Cal. 230) an objection to the award was filed in time but the additional ground on which the award was sought to be set aside was taken after the period of limitation. It was held that the application to take the additional ground should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. No quarter can, therefore, be given to the laches and delay which the appellant has been guilty of. This question, however, does not arise as section 5 of the Indian Limitation Act does not apply to the proceedings under the Arbitration Act, and cannot, therefore, be invoked. We, therefore, affirm the finding of the Court below that the application filed by the appellant to set aside the award was barred by limitation.
9. The appeal is accordingly dismissed with costs. Counsel's fee Rs. 100.
Appeal dismissed.
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