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Judgment
Ravi Nandan Sahay, J.—This is an appeal u/s 39(1)(vi) of the Indian Arbitration Act against the decision of the Subordinate Judge, Patna dated 13.3.1992, whereby the court below held the objection to the award filed by the Appellants to be time barred and consequently directed award to be prepared in terms of the Award in question.
Respondent No. 1 filed suit u/s 20 of the Indian Arbitration Act for giving a direction to the Appellants to file agreement in the Court for reference of the dispute between the parties to the Arbitrator in terms of the agreement as provided under Clause XIX of the Agreement. The dispute was referred to the Arbitrator. The Appellants appeared before the Arbitrator and contested the matter. The Arbitrator after concluding the Arbitration proceeding sent the award to the court and also to the Appellants. The award was placed before the Regional Manager on 28.2.1990 for appropriate action. The Appellants filed objection of the award on 7.6.1992.
Section 14(2) of the Arbitration Act provides that after the award is filed in court, the court shall give notice to the parties of filing of the award. According to the Appellants, they got knowledge of the filing of the award on 3.6.1990 and objection was filed within the period of limitation in terms of Article 119 of the Limitation Act.
Mr. Y.C. Verma, learned Counsel for the Respondent argued that the Appellants had knowledge of the award when the award was filed in court hence the Appellant could not insist for notice as required u/s 14(2) of the Arbitration Act. Mr. Verma has relied on Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, , Chhabila Singh and Others Vs. Sumitra Devi and Others, and Bahadur Singh Vs. Fuleshwar Singh and Others, in support of his contention that the limitation under Article 119 of the Limitation Act commence from the date of knowledge of the award when it is filed in court. Hon''ble Supreme Court in the decisions referred to above held that notice means intimation, warning and becoming aware of and that ''give notice'' u/s 14(2) simply means giving intimation of filing of the award and that intimation or knowledge of filing of the award to the pleader is notice to the party.
In Chhabila Singh and Others Vs. Sumitra Devi and Others, it is held that in case where the parties and their lawyer were appearing and the case was adjourned from one date to Anr. , it will be deemed that parties had notice and in that case giving of formal notice is not required. Mr. Verma contended that Section 14(2) of the Arbitration Act is procedural law incorporating the provision to give notice. Neither any form, proforma nor procedure has been laid down. Apparently the spirit of the provision is to make the parties to know or be aware of the filing of the award. The procedural laws are meant to achieve certain ends. They are not to thwart justice. They are to sub-serve the substantial justice.
Mr. Prabhakar Tekriwal, learned Counsel for the Appellant contended that the decisions relied upon by Mr. Verma cannot be applied to the facts of this case. He contended that the knowledge of the filing of the award was not sufficient and party cannot file objection unless notice is issued to him u/s 14(2) of the Act.
In this case, the award was received in the court of Subordinate Judge on 28.2.1990 and notice of filing of award was sent to both the parties by the Arbitrator. The order sheet dated 17.3.1990 shows that both the parties had filed Hazri. The Presiding Officer of the court had been transferred and the case was adjourned to 23.4.1990. On the next date the Appellant was present but the Respondent was absent. It appears that objection of the award was filed by the Appellant on 11.6.1990.
Gujarat High Court in Hasanalli Abdulalli Malabari Vs. Shantilal Bhaidas Marfatia and Others, held that under Article 158 of Schedule 1 to the Limitation Act (Article 119 of the Limitation Act, 1963), limitation commences from the date when the notice of the filing of the award is served. "But as held by the Supreme Court in Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, , when no notice has been issued by the court u/s 14(2) of the Act to the parties of the filing of the award, oral, informal for constructive intimation given by the Court will serve the purpose of the notice and the date of such intimation will be the starting point of limitation. The Supreme Court held that where a written notice is not given by the Court u/s 14(2) of the Act, the period of limitation would commence from the date on which oral or informal or constructive intimation had been given to the parties to the filing of the award. Gujarat High Court held that Nilkanth v. Kashinath (supra) will not apply to the cases where written notice has been issued. The Gujarat High Court held. But a written notice had, in fact, been issued, and when there is the service of a written notice, we cannot say that that is not the date of the service of the notice and that that is not the date of the starting point of limitation. There cannot be two starting points for the period of limitation, namely, 19.5.1958 and 3.9.1958 one the date of oral intimation and the second the date of service of notice. When a written notice is sent u/s 14(2) of the Arbitration Act, that would be the starting point for the period of limitation. If there is no written notice u/s 14(2) of the Act, then the date on which oral or informal or constructive intimation was given to the parties by the court of the fact that the award was filed would be the starting point for limitation as observed by their Lordships of the Supreme Court. But as observed, a written notice was served on 3.9.1958 and 3.9.58 is the date on which the period of limitation would commence." In this view of the matter, the decision cited by Mr. Verma is of no assistance.
The decision of the Gujarat High Court reported in Hasanalli Abdulalli Malabari Vs. Shantilal Bhaidas Marfatia and Others, has been approved by the Supreme Court in the Food Corporation of India and others Vs. E. Kuttappan, . The question for consideration before the Supreme Court was whether in a case lawyer of one of the party if authorized by the party files the award in court, can he wait for service of notice for filing objection u/s 30 and whether the limitation will commence from the date of receipt of notice or from the date of intimation from the Court. The Supreme Court has held that the award was filed by the Respondent''s Counsel himself so he had knowledge of the filing of the award, hence the limitation will commence from that date and not from the date the notice was served on the Respondents. The Respondents, on October 4, 1988, requested the Arbitrator by means of a letter to forward the awards-to his counsel for filing the same in the court. On October 12, 1988, the Arbitrator forwarded the awards and the entire record to the advocate of the Respondent by a forwarding letter with a copy of the letter to the Appellant. On October 25, 1988, Respondent''s counsel filed the award in the court and intimated to the Appellant to that effect on October 26, 1988 and later the court per its order dated November 3, 1988 directed the issuance of notice to the counsel appearing for the parties and on November 7, 1988 the Respondent filed objection u/s 14(2) of the Act. On December 5, 1988, computing the period of limitation of thirty days under Article 119 of the Limitation Act, 1963, from November 7, 1988, the date for which the counsel for the parties were summoned by the court to be told of the filing of the awards. One of the questions for consideration before the Supreme Court was whether the lawyer can file the awards in court. The Supreme Court observed that the agency of the party or its lawyer employed by the arbitrator for the purpose normally need be specific but can otherwise be deduced, inferred or implied from the facts and circumstances of a given case. It needs, however, shedding the impression that when a lawyer files the award in court when given to him by the arbitrator his implied authority to do so, shall not be presumed to exist. No such plea was ever raised before the Court that the award was filed in Court without the authority of the arbitrator. The decision of the Gujarat High Court has been referred in para-7 of the report.
In Kumbha Mawji Vs. Union of India (UOI), the Supreme Court had occasion to examine the question whether the party filing the award in court without the authority of the arbitrator or the umpire could be said to have "filed the award on his behalf" in terms of, Section 14(2) of the Act. The court was of the view that where the award or a signed copy thereof is in fact filed into court by a party, he should have beforehand the authority of the arbitrator or umpire for doing so. It cannot be assumed that the mere handing over of the awards to the parties necessarily implied the authority of the arbitrator or of the umpire to file the same into Court.
This question does not arise in the instant case. However, Mr. Verma has relied on a decision of this Court in the The State of Bihar and Others Vs. Liason and Contracts and Another, in support of his contention that no service was necessary if the party had knowledge of the filing of the award. The Supreme Court in Food Corporation of India''s case (supra) commented that the view taken by this Court in the aforesaid case was contrary to the judgment of this case.
In Indian Rayon Corporation Limited v. Raunaq & Co. Pvt. Ltd. (1988) 4 S.C.C. 312. It was held that the period of limitation for obtaining judgment in terms of the award and for setting aside the award would be thirty days under Article 119 of the Limitation Act from the date of service of notice. But in absence of notice the date of knowledge of filing of the award in court was held to be service of notice and the period of limitation was computed in terms thereof. This decision is also not applicable to the facts of this case.
The award was filed by the Arbitrator and an information was said to be given to the Appellant but that was not sufficient. The Appellant was not supposed to know as to when the award was filed in court. Mere by filing the appearance, it cannot be presumed that he had knowledge of the filing of the award and particularly when the Presiding Officer of the Court had been transferred. I am unable to hold that the objection filed by the Appellant was time barred.
Accordingly, the order of the Subordinate Judge, IX, Patna dated 13.3.1992 rejecting the objection filed by the Appellants is set aside and the matter is remitted to the Subordinate Judge, who shall pass order in accordance with law after considering the objections filed by the Appellants.
This appeal is accordingly allowed. There shall be no order as to costs.