Aftab Ahmed Khan vs The Instalment Supply, Private Ltd. and Others

Prem Chand Pandit, J.—This revision raises the question as to whether an arbitrator alone is entitled to file an application u/s 28 of the Arbitration Act, 1940.

It appears that on 23rd August, 1956, by virtue of a hire-purchase agreement, Aftab Ahmad Khan purchased a bus from Messrs. Instalment Supply Private Limited. Some disputes arose between the parties and, on the basis of an arbitration clause in the said agreement, on 26th August, 1957, the Company referred the matter in dispute to the arbitration of Shri Sardar Bahadur, Advocate. On 10th March, 1958, the arbitrator made an application u/s 28 of the Act, in the Court of Shri Pritipal Singh, Subordinate Judge, 1st Class, Delhi, for the extension of time for making the award. On 14th March, 1958, the said Court extended the time till March, 29, 1958. The arbitrator gave his award on 27th March, 1958, and the same was filed in the Court of Shri Dalip Singh, Subordinate Judge, 1st Class, Delhi, on 30th October, 1958. The arbitrator also made an application under Sections 14 and 28 of the Arbitration Act, stating that since he was under a bona fide belief that no other Court had been previously moved in this case, he filed an application in the Court of Shri Pritipal Singh, Subordinate Judge, 1st Class, for extension of time for making the award and, under these circumstances, he was under a bona fide mistake in approaching that Court. He, therefore, prayed that the time for making the award be extended till 27th March, 1958, and the same be made a rule of the Court. Aftab Ahmad Khan and others raised, objections under Sections 30, 31 and 33 of the Arbitration Act, on 12th January, 1959, that since the Company had filed an application u/s 41 of the Act on 28th July, 1957, in the Court of Shri Om Parkash Garg, Subordinate Judge, 1st Class, Delhi, the predecessor of Shri Dalip Singh, for some interim relief by way of injunction and that application was disposed of by the said Judge by his order dated 29th November, 1957, that Court alone had the jurisdiction to extend the time in view of the provisions of Section 31 of the Arbitration Act. It was, therefore, contended that the order dated 14th March, 1958, passed by Shri Pritipal Singh extending the time for making the award till 29th March, 1958, was without jurisdiction. On 16th March, 1959, the Company also filed an application u/s 28 of the Arbitration Act in the Court of Shri Dalip Singh, Subordinate Judge, 1st Class, for extension of time till 27th March, 1958, for making the award, inter alia, on the ground that the arbitrator was under a bona fide belief that no other application had been moved in connection with this reference to any other Court. On 3rd April, 1959, Aftab Ahmad Khan and others gave a reply to this application of the Company and pleaded that the Company had no locus standi to make an application for extension of time u/s 28 of the Arbitration Act. On this very date, the following issue was framed--

Whether there is sufficient cause for extension of time for making and filing the award u/s 28 of the Arbitration Act?

After recording the evidence on this issue, the Court below (Shri Dalip Singh, Subordinate Judge, 1st Class) came to the conclusion that the arbitrator made the application dated 10th March, 1958, in the Court of Shri Pritipal Singh, Subordinate Judge, 1st Class, under the bona fide, belief that that Court had jurisdiction to extend the time for making the award. That being so, he found that it was a fit case in which time should be extended u/s 28 of the Arbitration Act. As a result, he granted the arbitrator ant ex post facto extension of time for making the award till March 27, 1958. Against this order, the present revision has been filed by Aftab Ahmad Khan.

Learned Counsel for the Petitioner contended that the finding of the learned Subordinate Judge, that the arbitrator was under a bona fide belief that the Court of Shri Pritipal Singh, Subordinate Judge, 1st Class, had jurisdiction to extend time for making the award, was erroneous in law, because the arbitrator had not come into the witness-box and deposed to this fact. It was he alone who could have done so. The Court below, according to the learned Counsel, erred in law in relying on the evidence produced by the Company for arriving at the finding that it was a fit case, in which time should be extended u/s 28 of the Arbitration Act, because the Company had no jurisdiction to file such an application under this section. It was the arbitrator alone, who could move the Court for the extension of time u/s 28 of the Act. He, however, conceded that, if a party could, in law, file an application under this section, then the decision of the Court below was correct. The sole question for decision, therefore, is whether it is only the arbitrator, and not a party, who can move the Court u/s 28 of the Act.

Section 28 of the Arbitration Act is in the following terms:

(1) The Court may if it thinks fit whether the time for making the ward has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award.

(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award shall be void and of no effect.

A bare reading of this section would indicate that it does not mention as to who should move the Court to enlarge the time for making the award. Thus, a party to the arbitration agreement is not debarred from filing an application under this section. The Court may enlarge the time under this section, whether the time for making the award has expired or not and whether the award has been made or not. Supposing the award has been made in favour of a party, but the time for making the award had expired then, naturally, that party would be interested in getting the time for making the award extended. Further, if the award has not yet been made and the time for making the same had expired, then any or both of the parties to the arbitration agreement would be interested in getting the time enlarged, in order to get their disputes settled by the arbitrator. Moreover, it can well be that an arbitrator, after making the award beyond time, may not be interested in getting it validated by obtaining an extension of time from the Court. In that case, obviously, it would be the party, or both the parties, who might be interested in approaching the Court under this section. In my opinion, therefore, any party to the arbitration agreement also can file an application under this section, and it is not the arbitrator alone who can do so.

In this view of the matter, the petition fails and is hereby dismissed. In the circumstances of this case, however, I would make no order as to costs in this Court.