The Judgment of the Court was delivered by
Panckridge, J.:— This application raises an interesting and a not unimportant point of limitation.
The petitioner was a party to arbitration proceedings before the Tribunal of Arbitration of the Bengal Chamber of Commerce.
On July 29, 1941, an award was made, under which the petitioner was ordered to pay to the respondents a sum of Rs. 2,531 together with a sum of Rs. 313 as costs of the arbitration.
On August 22, the award was filed in this Court.
The petitioner at one time alleged that the notice of the filing of the award was never effectively served upon him, but he now concedes that this application must proceed on the basis that he was effectively served with the notice on November 21, 1941.
On December 22, 1941, the respondents made an application under s. 17 of the Indian Arbitration Act, 1940, for a judgment upon the award. The matter was in the list, and, when it was called on, no one appeared on behalf of the petitioner to oppose. Accordingly judgment was pronounced in terms of s. 17.
Later in the day learned counsel for the present petitioner presented a petition asking that the award should be set aside on various grounds. Learned counsel stated that day, that is to say, December 22, 1941, was the last day on which he could make the application. I directed that it should be noted as made on that date. There is an endorsement on the back of the petition which is as follows:—
Noted as made to-day. Notice returnable on January 12, 1942.
I will assume that the petitioner was not a ware that judgment had been pronounced in terms of the award before the petition to set aside the award was presented.
He has now applied for an order that the decree and judgment passed on December 22, 1941, be recalled or set aside. His notice of motion is dated January 19, 1942, and made returnable on February 16, 1942. The petitioner admits that unless he succeeds in setting aside the judgment and the decree made on December 22, 1941, he cannot proceed with his application, which is still pending, to have the award of July 29, 1941 set aside.
The only ground on which he asks that the judgment should be set aside is that it was made without jurisdiction.
Under s. 17 of the Act it is a condition precedent to pronouncing judgment that the time for making an application to set aside the award has expired, or alternatively that, such application having been made, the Court has refused it.
The question is whether on December 22, 1941, the time for making an application to set aside the award had expired. The period for making such an application is prescribed by Art. 158 of the Indian Limitation Act, as amended by Sch. IV of the Indian Arbitration Act, 1940. The Article now prescribes thirty days from the date of service of the notice of filing the award. It is now conceded that the notice of filing the award was served on November 21, 1941. It is also conceded that the last day of the prescribed period would ordinarily be December 21, 1941. It would seem, therefore, that on December 22, 1941, when the Court pronounced the judgment, the period had expired. However, counsel for the petitioner says that, because of the provisions of s. 4 of the Indian Limitation Act, the period had not expired, since December 21, 1941, being a Sunday, was a day on which the Court was closed.
Section 4 of the Indian Limitation Act is as follows:—
Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
Mr. S.R Das for the respondents concedes that the noting of the application as made on December 22 may be regarded as tantamount to its having been made on that day, but he says that the application was an incompetent one, as under the rules made by this Court under the Arbitration Act an application of this nature can only be made upon notice to the other party.
I am not going to decide this point, because, having regard to the view which I take on the point of limitation, there is no necessity for me to decide it. It may be Mr. Das is correct. On the other hand, the Court may have inherent power to entertain an application made without notice, if it is made within the prescribed period.
Mr. S.R Das's main point, however, is that the time for making the application to set aside the award had expired within the meaning of s. 17 of the Arbitration Act. He admits that, by reason of the provisions of s. 4 of the Limitation Act, the petitioner's application to set aside the award, assuming it to have been in order, could not have been dismissed as being out of time, but he points out that s. 4 does not extend the period in cases where the last date of the period is a day on which the Court is closed, but only gives to the party concerned the right to make the application on the day that the Court reopens, although the period has in fact expired.
Mr. Das in this connection calls attention to the difference between the scheme of s. 4 and the scheme s. 14 of the same Act.
Under s. 14, in certain circumstances, certain periods are to be excluded in computing the period of limitation, and the difference between the language used in the two sections has been commented on by the Judicial Committee in Maqbul Ahmad v. Pratap Narain Singh . Therefore it by no means follows because the petitioner had the right to make an application to set aside the award on December 22, 1941, that the time for making that application had not expired within the meaning of s. 17.
In my opinion, Mr. Das's contention is correct and the privilege which s. 4 confers upon the petitioner did not prejudice the right of the respondents to obtain judgment in terms of the award on the expiry of thirty days from the date of the service of the notice.
I, accordingly, consider that the Court had jurisdiction to pronounce judgment in terms of the award, and it is conceded that if this is so, there are no grounds upon which I should be justified in recalling the order made in favour of the respondents on December 22, 1941, or set it aside.
The two applications, therefore, namely the application to set aside the award and the application to recall the judgment and decree, must be dismissed with costs.
Attorneys for applicant: Khaitan & Co.
Attorneys for respondent: P.D Himatsingka & Co.
Application dismissed.
S.M