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Francesco Corsi Vs. Gorakhram Gokalchand - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai High Court
Decided On
Case NumberSuit No. 429 of 1955
Judge
Reported in(1959)61BOMLR1195
ActsArbitration (Protocol and Convention) Act, 1937 - Sections 2, 4, 4(1), 5, 6 and 7; Limitation Act, 1908 - Schedule - Article 178; Aribtration Act, 1940 - Sections 14
AppellantFrancesco Corsi
RespondentGorakhram Gokalchand
Appellant AdvocateMadan, ;P.P. Khambata and ;J.M. Thakore, Advs.
Respondent AdvocateLaud and ;J.S. Khambata, Advs.
Excerpt:
arbitration (protocol and convention) act (vi of 1937), sections 2, 4(1), 5; first schedule, clause 2 - indian independence (international arrangements) order, 1947, schedule, clauses 1, 3, 4 -- indian limitation act (ix of 1908), article 178 -- arbitration act (x of 1940), section 14 -- agreement to refer disputes arising out of contract to arbitration in london in accordance with rules of specified association -- award obtained in london -- petition for filing award in court in india under act vi of 1937 -- maintainability of petition -- whether award a foreign award within section 2 of act -- award whether made in pursuance of an agreement for arbitration to which protocol applies -- act vi of 1937 whether has force in india after january 26, 1950 -- applicability of article 178,.....(1) the petitioner is a national of italy. he carries on business under the name and style of messrs. francesco corsi. the respondents are a firm, the partners whereof are citizens of india. the respondents carry on business interalia of import and export at choksi chambers, sheikh memon street, bombay. by three contracts in writing the respondents agreed to sell to the petitioner 300 tons of indian crude groundnut oil in aggregate. 100 tons being agreed to be sold under each of the aforesaid contracts on the terms and conditions set out in those contracts. one of the terms of each of the said contracts is as follows:'all other terms and conditions as per london l. o. t. t. a. contract (that is, 'london oil and tallow trade association contract.')'.one of the terms of the said london oil.....
Judgment:

(1) The petitioner is a national of Italy. He carries on business under the name and style of Messrs. Francesco Corsi. The respondents are a firm, the partners whereof are citizens of India. The respondents carry on business interalia of import and export at Choksi Chambers, Sheikh Memon Street, Bombay. By three contracts in writing the respondents agreed to sell to the petitioner 300 tons of Indian crude groundnut oil in aggregate. 100 tons being agreed to be sold under each of the aforesaid contracts on the terms and conditions set out in those contracts. One of the terms of each of the said contracts is as follows:

'All other terms and conditions as per London L. O. T. T. A. contract (that is, 'London Oil and Tallow Trade Association Contract.')'.

One of the terms of the said London Oil and Tallow trade Association contract is as follows:

'(15). Any dispute arising out of this contract shall be settled by arbitration in London in accordance with the Rules endorsed on this contract.' The petitioner contended that the respondents had failed to supply the goods agreed to be sold by them to the petitioner under each of the aforesaid contracts and committed a breach of the said contracts. the matter was referred to arbitration in London in accordance with the rules endorsed on the standard from of the contract of the London Oil and Tallow Trade Association. The petitioner obtained an award in his favour on 23-2-1953 for ...3711-15-3. The petitioner has filed the present petition praying that the said award may be ordered to be filed in this Court and that judgment may be propounded and a decree may be passed according to the said award. The respondents have resisted that application and have raised numerous contentions. As the respondents contended that there were several issues which were liable to be tried as preliminary issues, the matter was placed on board for raising issues and for determining which of those issues should be tried as preliminary issues, the matter was placed on board for raising issues and for determining which of those issues should be tried as preliminary issues and for trying such preliminary issues.

After the issues were raised in this case, the parties agreed that four issues should be tried as preliminary issues. Those issues are as follows:

(1) Whether the Arbitration (Protocol and convention) Act of 1937 under which the petitioner has filed the application has any force in India after 26-1-1950.

(2) If the answer to issue No. 1 is in the negative, whether this Honourable Court has jurisdiction to entertain the application.

(3) Whether the said award is a foreign award within the meaning of the said Arbitration (Protocol and Convention) Act, and

(4) Whether the application is barred by the law of limitation.

(2) It was strenuously contended on behalf of the respondents that the Convention on the Execution of Foreign Arbitral Awards had not been duly signed on behalf of India so as to bind the Government of India after India attained independence. The matter was adjourned from time to time in order to enable the respondents to get whatever evidence they desired in the matter. They are, however, not in a position to show that the Convention had not been duly signed or that the Convention is not binding on the present Government of India.

(3) India is a State signatory to the Protocol on Arbitration Clauses and to the Convention on the Execution of Foreign Arbitral Awards. In order to give effect to the said Protocol and of enabling the said Convention to become operative in India the Indian legislature passed the Arbitration (Protocol and convention) Act VI of 1937. In the preamble to the Act, it has been recited as follows:

'Whereas India was a State signatory to the Protocol on Arbitration Clauses set forth in the First Schedule and to the Convention on the Execution of Foreign Arbitral Awards set forth in the Second Schedule, subject in each cse to a reservation of the right to limit its obligations in respect thereof to contracts which are consdered as commercial under the law in force in the Provinces of India.'

(4) Reliance was placed by Mr. Laud, the learned counsel for the respondents on foot-note (q) which appears in Halsbury's laws of England, Vol. 2, 3rd Edition at p. 52, which runs as follows:

'Arbitration (Foreign Awards) No. 1 Order, 1938, S. R. and O. 1938 No. 137. Although it is considered that India and Pakistan are now effective participants in the Convention, it may be that a further order is required in view of the fact that the Arbitration (Foreign Awards) No. 1 Order, 1938, S. R. and O. 1938 No. 137 merely declared that India was a territory to which the Convention applied and did not delcare India to be a party to the Convention.'

Reyond citing the footnote the learned conusel for therespondents was not in a position to carry the matter and further. He has not refferred me to any document for the purpose of showing that India is doucment for the purpose of showing that India Independence (International Arrangements) Order, 1947, came into force on 14-8-1947. By S. 2 of that order it is provided that the agreement set out in the Schedule to that order shall, as from the appointment day, have the effect of an agreement duly made between the Dominion of India and the Dominion of Pakistan. In the Schedule it has been stated by clause 1 that the international rights and obligations to which India was entitled and subject immediately before the 15th day of August 1947, would devolve in accordance with the provisions of that agreement, Clause 3 of the Schedule provides as follows:

'3(1) Rights and obnligations under internaitonal agreements having an dxclusive territorial application agreements having an exclusive territorial application to an area comprised in the Dominion of India will devolve upon that Dominion x x x.' Clause 4 of the Schedule provides as follows: 'Subject to Arts 2 and 3 of this agreement, rights and obligations under all international agreements to which India is a party immediately before the appointed day will devolve both upon the Dominion of India and upon the Dominion of Pakistan, and will if necessary, be appointed between the two Dominions.'

India being a State signatory to the Protocol on Arbitration Clauses set forth in the First Schedule to the Arbiration (Portocol and Convention ) Act, 1937, and to the Convention on the Execution of Foreign Arbitral Awards set forth int he second Schedule to that Act, the obligations undertaken therunder continue to bind India after India was constituted a Dominion and they continu;e to bind India thereafter. The Arbitration (Protocol and Convention) Act, 1937, has been duly passed by Indian legislature and I am bound to give effect to its provisions. It has not been shown how the said Act has ceased to be in force after 26-1-1950. Issue No. 1 is answered in the affirmative.

(5) In view of the answer given in issue No. 1, issue No. 2 does not arise for consideration.

(6) It is next contended on behalf of the respondents that the award that has been obtained byh the petitioner is not a foreign award within the meaning of the arbitration (Protocol and Convention) Act, 1937. Section 2 of that Act, which defines a foreign award, runs as rollows:

'In this Act 'foreign award' means an award on differences relating to matters considered as commercial under the law in force in the Provinces made after the 28th day of July 1924, -

(a) in pursuance of an agreement, for arbitration to which the Protocol set forth in the First Schedule applies, and

(b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central government being satisifed that reciprocal provisions have been made, may, by notification in the Official Gazette declare to be parties to the convention set forth in the Second Schedule, and of whom the other is subject to the jurisdiction of some of the powers aforesaid, and

(c) in one of such territories as the Central Government being satisifed that reciprocal provisions have been made, may, by like notification, declare to be territories to which the said Convention applies, and for the purposes of this Act an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.'

The only ground urged by the learned counsel on behald of the respondents for saying that the award was not a foreign award within the meaning of the Act was that it was not made in pursuance of an agreement for arbitration to which the Protocol set forth in the First Schedule applied. It was argued that the parties had contracted themselves out of the Protocol set forth in the 1st Schedule to the Act. In this connection, strong reliance was placed upon clause 2 appearing in the First Schedule. that clause runs as under:

'The arbitral procedure, including the constitution of the Arbitral Tribunal, shall be governed by the will of the parties and by the law of the country whose territory the arbitration takes place.'

It is not disputed that the arbitral procedure, including the constitution of the Arbitral Tribunal is governed under the terms of the contract by the law of the country in whose territory the arbitration was to take place viz., England. what is urged is that the arbitral procedure including the constitution of the Arbitral Tribunal is not governed in the present case by the will of the parties within the meaning of the said clause 2. It is urged that as the parties in the present case have bound themselves by the provisions contained in the London Oil and Tallow Trades Associations's contract as regards the arbitral procedure and the constitution of the Arbitral Tribunal, their will in that connection has been expressed and does not thereafter remain to be expressed and where such will has been expressed, the protocol cannot apply. In this connection, clause 14 of the London Oil and Tallow Trade Association's contract was referred to. That clause provides as under:

'For the purpose of all proceedings whether at law or by arbitration this contract shall be deemed to be in all respects an English contract, and all disputes and questions thereunder shall be decided in accordance with the law of Engiand. The arbitrators appointed in England and/or the English Courts as the case may be, shall have exclusive jurisdiction over all such disputes and questions. Any party domiciled resident or trading in Scotland shall be held to have prorogated jurisdiction against himself to the English Courts and any party domiciled resident or trading elesewhere than in England or Scotland shall be deemed to have submitted to the jurisdiction of the English Courts. Provided nevertheless that for the purpose only of enforcing or carrying into effect any order, award or judgment of the arbitrators or the English Courts outside the jurisdiction of the English Courts either party may resort to any Court or Authority within whose jurisdiction the other party or any property of his may be found. All proceedings, notices of proceedings and other notices in connection with or to give effect to the arbitration shall be served upon any party not domiciled in England by leaving the same addressed to such party at the office in London of the London Oil and Tallow Trades Association and in the case of a party domiciled resident or trading elsewhere than in England, Scotland or Ireland by leaving copies or duplicates thereof with the Consul or Agent in London of the country in which such party's last known address is situate. . . . .. .'

Clause 15 of the said contract provides for settlement by arbitration in London of any dispute arising out of the contract in accordance with the rules endorsed on the contract. The rules contain detailed provisions as regards the constitution of the Arbitral Trbunal and the arbitral procedure. The parties in this case have bound themselves by the aforesaid provisions and their will in connection with the arbitral procedure and the constitution of the Arbitral Tribunal has been duly expressed. The argument of counsel for the respondents is that in order that the protocol may apply the will of the parties in the connection must not have been crystallised and expressed in the contract whereunder the parties agree to submit their disputes to arbitration. I do not see any reason or any warrant for this submission. There is nothing n clause 2 which precludes that will being expressed in the instrument whereby the parties agree to refer disputes that may arise in connection with the contract to arbitration. I fail to see how the parties could be said to have contracted themselves out of the Protocol by reason of clause 14 or clause 15 of the London Oil and Tallow Trade Association's contract.

(7) Mr. Laud relies upon two judgments of the Calcutta High Court in this connection delivered by one Judge of that Court. The first is the case of W. Wood and Sons Ltd. v. Bengal Corporation, : AIR1956Cal238 . In that case an application was made under S. 3 of the Arbitration (Protocol and Convention) Act, 1937, for the stay of a suit on the ground that the parties had agreed to refer the subject matter of the suit to arbitration. In that case the party applying for stay had itself brought an action in the Queen's Bench Division in England in connection with the very contract giving rise to the claim in the suit and had obtained a judgment against the plaintiff in that suit and could not be said to be ready and willing to go to arbitration. The learned Judge there observed that the party applying for stay had by bringing the action in the Queen's Bench Division in respect of the matter agreed to be referred showed that it was not at the time when the proceedings were commenced in the Calcutta High Court ready and willing to do all things necessary to the proper conduct of the arbitration, and that the application on that ground was liable to be dismissed. Thereafter the learned Judge, however, further proceeded to observe as follows:

'My second reason is that it is open to parties, subject respectively to the jurisdiction of different Contracting States who are signatories to the Protocol and Convention, to elect to come either under Arbitration under the National Statutes or under Arbitration under the Protocol. If by their Arbitration Agreement such parties choose Arbitration under National Statutes such as the course which is chosen by the parties here, the agreement being that the parties should be governed by the English Arbitration Act mentioned in Clause 9 of the Agreement, there is then no further scope left for invoking the Protocol Arbitration any more.

To hold otherwise will be tantamount to saying the nonsense that parties chose two different competitive Arbitration Tribunals to dedide disputes under the same contract. This conclusion becomes clear on the construction of the words a'a submission made in pursuance of an agreement to which the Protocol set forth in the First Schedule applies used in S. 3 of that Act. A reference to the First Schedule of that Act will at once show the meaning of those words. Clause 2 of the First Schedule says:

'The arbitral procedure, including the constitution of the Arbitral Tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.' Now plainly the Arbitral Tribunal there contemplated has to be governed by the 'will' of the parties. It is obvious on the facts of this case that there is no agreed will of the parties on such Arbitral Tribunal. It was contended by counsel on behalf of the applicant that the will of the parties was the contract between the parties or, in other words. Arbitration under the English Arbitration Act.

Clearly that argument is erroneous for two reasons: firstly because if that is the Arbitral Tribunal, then it is not a Tribunal under the Protocol and secondly because the words 'will of the parties' in Clause (2) of the First Schedule cannot represent the contract between the parties because wherever the contract between the parties is intended, the First Schedule uses the word 'contract' and not 'wo;;'.'

I have quoted the observations of the learned Judge in extenso because the learned counsel who has urged this point before me has adopted those words as part of his argument and has frankly stated before me that beyond what is stated in the observations of the learned Judge he is not in a position to advance any argument or in any way to implement further those observations. with respect to the learned Judge, I am unable to agree with the observations made by him & the reasons given therefor. One of the reasons on which the learned Judge has based his decision is that if a view countrary to that expressed by the learned Judge is taken, there would be constituted two different compettitive Arbitration Tribunals to decide the disputes under the same contract. With respect to the learned Judge, I fail to see how two different competitive arbitration tribunals would be constituted. Clause 2 of the First Schedule on which reliance has been placed refers to an Arbitral Tribunal constituted by the will of the parties. If the parties express their will and say that the Tribunal shall be constituted as provided under the English Arbitration Act, there is no room for appointing another Tribunal. The learned Judge perhaps seems to be labouring under the impressiom that under the Protocol a separate tribunal is constituted and that if there is an agreement for arbitration to which the Protocol applies, the parties are bound to have the matters in dispute adjudicated before that Tribunal. There is no such Tribunal constituted under the Protocol. The Protocol itself by clause 2 provides that the constitution of the Arbitral Tribunal shall be governed by the will of the parties. According to the will of the parties as expressed in the contract in that case which provided for the constitution of the Arbitral Tribunal according to the English Arbitration Act, there would only be one Tribunal. With respect to the learned Judge, I do not agree with his view that if the parties elect to have the Arbitral Tribunal constituted in accordance with the 'National Statutes,' the application of the Protocol is excluded. Clause 2 requires that the constitutution of the Arbitral Tribunal should be governed by the will fo the parties and that will can be expressed in the agreement of reference. By the expression of that will the Protocol is not excluded.

(8) The second decision of the same Judge relied upon by learned ounsel on behalf of the respondents is the one reported in Bajrand Electric Steel Co. Private Ltd. v. Commissioners for the Port of Calcutta, (S) : AIR1957Cal240 . In that case a suit was filed aainst four different defendants of whom one alone was a party to the arbitration agreement and he applied for stay of the suit. The Court held that the entire suit could not be stayed as it would mean staying the suit against the other defendants who were not parties to the arbitration agreement. The learned Judge refused to stay the suit saying that at best the applicant could ask for a stay of the suit against himself and no other. He further obnserved that that was a course which had its peculiar difficulties mainly because that meant trial of a suit piecemeal and that such a procedure was most undersirable and unfair unless there were cogent reasons to the contrary and that no such reasons existed in that case. This point by itself was sufficient for the purpose of disposing of the matter. The learned Judge thereafter following his earlier judgment further held that in his opinion the Protocol arbitration did not apply to the case as it was stipulated by the parties to the arbitration agreement that disputes were to be decided in England and that no legal proceedings should be taken to enforce any claim except in England so that it could at best stipulate for English Arbitration in England or trial of the disputes in English Courts of law in England. It is not necessary for me to state once again the reasons which impel me not to accept the conclusion reached by the learned Judge about the non-applicability of the Protocol.

(9) In my view, the agreement for arbitration in the case before me is one to which the Protocol set forth in the First Schedule to the Arbitration (Protocol and Convention) Act, 1937 applies and that the award is a foreign award within the meaning of the said Arbitration (Protocol and Convention) Act. Issue No. 3 is accordingly answered in the affirmative.

(10) As regards the fourth issue, the learned counsel for the respondents urged that the application was barred by the law of limitation. the award was made on 23-2-1953. The petition has been filed on 13-10-1955. It is urged that Art, 178 in the First Scheduled to the Indian Limitation Act, 1908, governs the filing of the petition and that the period of limitation being 90 days, the petition is barred by the law of limitation. Article 178 runs as follows:

'Under the Arbitration Act, 1940, for the filing in Court of an award, period of limitation ninety days from the date of service of the notice of the making of the award.'

It is not disputed that the petition has been filed more than 90 days from the date of service of the notice of the making of the award. By the paetition the petitioner has prayed that the award may be filed in this Court and that Judgment may be propounded and a decree may be passed according to the said award . Now, the application has been made under the provisions contained in the Arbitration (Protocol and Convention) Act, 1937. It is not an application made under the Indian Arbitration Act, 1940, and the short answer to the argument advanced on behalf of the respondents is that it is not an application under the Indian Arbitration Act, 1940 for the filing in Court of an award that Art. 178 cannot possibly apply. Section 14 of the Indian Arbitration Act provides as follows:

'14. (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.

(2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the arard.' A duty is cast upon the arbitrators or umpire to cause an award or a signed copy of it to be filed in Court under the circumstances mentioned in that section. When the arbitrators or umpire send the award to the Court for the purpose of being filed in Court, it is the duty of the Court to file the award and give notice to the parties of the filing of the award. the filing contemplated under S. 14 is a ministerial act. Article 178 of the Indian Limitation Act does not apply to such filing. there is no time limit for the arbitrators or umpire to file the award in Court. The application contemplated by Art. 178 is an application to direct or compel the arbitrators or umpire to carry out their obligation under S. 14, sub-s. (2) of the Indian Arbitration Act. The period of 90 days is provided only for such an application. so far as the Bombay High Court is concerned, it has been so held by Chagla J. as he them was in the case of Jayantilal Jamnadas v. Chhaganlal Nathoobhai 47 Bom LR 317 : AIR 1945 Bom 417.

(11) Counsel for the respondents relied on S. 4(1) of the Arbitration (Protocol and Convention) Act, 1937, which provides that a foreign award shall, subject to the provisions of the Act, be enforceable in India as if it were an award made on a matter referred to arbitration in India. He urged that as a foreign award is enforceable in India as if it were an award made on a matter referred to arbitration in India, Art. 178 would apply to an application for filing a foreign award in Court. Merely because foreign award is enforceable in India as if it were an award made on a matter referred to arbitration in India, it does not make that award an award under the Indian Arbitration Act, 1940. It has been held by a Division Bench of this Court consisting of Chagla G. J. in the case of M. K. Nigam v. S. G. Chandavarkar 50 Bom LR 747 : AIR 1949 Bom 104 at page 106) that it is an elementary principle of construction that the scope of the Limitation Act cannot be extended by implication, and a party's right to come to Court cannot be taken away unless the Limitation Act expressly provides that his right is so barred. Section 4(1) of the Arbitration (Protocol and Convention) Act, 1937 does not say that a foreign award shall be deemed to be an award made under the Indian Arbitration Act, 1940. It is only enforceable in India subject to the provisions of that Act as if it was an award made on a matter referred to arbitration in India. Before a foreign award is filed under the Provisions contained in the Arbitration (Protocol and Convention) Act, 1937, there are various requirements of law which have to be satisifed. Section 6 of the Arbitration (Protocol and Convention) Act, 1937, requires that in order that a foreign award may be enforceable under the Act, it must have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed, it must have been made in conformity with the law governing the arbitration procedure, it must have become final in the country in which it was made and it must have been in respect of a matter which may lawfully be referred to arbitration under the law of India and the enforcement thereof must not be contrary to the public policy or the law in India. Sub-section (2) of S. 7 provides for various circumstances under which a foreign award is not made enforceable under the Act. The provisions of law in connection with the filing of an award under the arbitration (Protocol and Convention) Act, 1937, are entirely different from the provisions contained under the Indian Arbitration Act, 1940, for the filing of the award. The nature of the inquiry before the Court under the two Acts is entirely different and an application for the filing of an award under the provisions of the Arbitrtions (Protocol and Convention) Act. 1937, cannot be equated with an application for directions to file an award under the Indian Arbitration Act, 1940.

(12) Mr. Laud has relied upon an unreported judgment of a single Judge of the Madras High Court in support of his argument in this connection, and if I may say so that judgment constitutes his sheet-ancher. It is the judgment of Mr. Justice Basheer Ahmed Saveed in Civil Revn. Petns. Nos. 46 of 1954 and 2369 of 1953 delivered on 13-3-1956. In that case an application was made for the filing of a foreign award. That application was filed more than 90 days from the date of the service of notice of the making of the award. Mr. Justice Basheer Ahmed Sayeed who decided the matter hald that Art. 178 applied and considered the application to be barred by the law of limitation. In the course of his judgment the learned Judge observes as follows:

'By analogy, the provisions contained in S. 4 of the Arbitration (Protocol and Convention) Act VI of 1937 that a foreign award shall, subject to the provisions of the said Act, be enforceable in the provinces as if it were an award made on a matter referred to arbitration in the provinces, would mean that the foreign award, when it is sought to be enforced, shall conform to all the procedure provided for in the Indian Arbitration Act and laws of the country, before it would become a decree of a Civil Court. When the foreign award filed thus attracts to itself all the provisions of the Indian Arbitration Act and other laws of the State (Provinces) ipso facto the law of limitation in force in this country also becomes applicable to the foreign award. The foreign award is placed exactly on the same footing as an Indian award so far as its enforcement is concerned. x x x x in view of the express terms of S. 4 of the Arbitration (Protocol and Convention) Act, Act VI of 1937, it cannot stand to reason that the period of limitation available for the enforcement of such foreign awards should be different from the period of limitation that is applicable to awards made under the Indian Arbitration Act.'

With respect to the learned Judge, I am unable to agree with the conclusion reached by the learned Judge. A foreign award is not placed exactly on the same footing as an Indian award so far as its enforcement is concerned. Section 4 of the Arbitration (Protocol and Convention) Act, 1937 makes the enforcibility subject to the provisions of that Act. Section 7 of that Act lays down numerous conditions which have to be satisified before a foreign award is considered enforceable. The period of limitation required to be considered is for an application for the filing in Court of an award. As I have already indicated, the provisions in connection with the filing of the award under the Indian Arbitration Act are totally different from those contained in the Arbitration (Protocol and Convention) Act, 1937, and an application for filing an award under S. 5 of the Arbitration (Protocol and Convention) Act cannot be treated as an application for filing an award under the Indian Arbitration Act, 1940. In my view Art. 178 does not apply to the application before me. the other articles referred to were Arts. 181 and 120. Article 181 has been held to cover only applications made under the provisions of the Civil Procedure Code and no others in numerous cases which had been decided prior to the legislative changes made in Arts. 158 and 178 by S. 49(2) of the Arbitration Act. 1940. It is not necessary for me to consider in the present case the effect of the new Articles 158 and 179 on the interpretation of Art. 181 or the applicability of Art. 120. The only article relied on for the purpose of showing that the application is barred by the law of limitation is Art. 178. That article does not apply to the facts of the case. it is not contended before me that if the provisions of Art. 178 do not apply, the petition is in any way barred by the law of limitation. I answer issue No. 4 in the negative.

(13) Respondents to py to the petitioner the taxed costs of issues 1,2, 3. and 4. The question whether the costs should be taxed on the long cause scale or not is reserved until the final disposal of the whole matter.

(14) Order accordingly.


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