1. This is a petition filed by the petitioner praying that the award dated July 14, 1943, be taken off the file of this Court. It seems that a suit was filed in the Small Causes Court, Bombay, by the respondent against the petitioner and that suit was referred to the arbitration of Chhotalal Jekissondas Ghia, an advocate practising in that Court. The arbitrator made and published his award on July 14, 1943. On July 15, 1943, he gave notice to the advocates of the petitioner and the respondent who had been appearing before him during the reference that he had published and signed his award on July 14, 1943. He again gave a notice on March 3, 1944, to the parties themselves of the fact of his having made and published the award. The ground on which the petitioner seeks to have the award taken off the file is that it is out of time under Article 178 of the Indian Limitation Act, 1908.
2. The first contention raised by Mr. M.V. Desai is that the notice given by the arbitrator on July 15, 1943, is not the statutory notice contemplated by Section 14(1) of the Indian Arbitration Act inasmuch as the notice should be served on the par-ties and not on their advocates. In view of my decision on the second contention urged by Mr. Desai, I do not think it necessary to express any opinion on this particular contention put forward by Mr. Desai.
3. The next contention of Mr. Desai is that Article 178 of the Indian Limitation Act has no application whatsoever when the award is filed by an arbitrator under the Indian Arbitration Act. The Indian Limitation Act provides for limitation for applications made to the Court under the various articles which come under the third division to the first schedule to that Act. The preamble to the Indian Limitation Act states that it is a law relating to the limitation of suits, appeals and certain applications to Court; and Section 3 of the Act says that subject to the provisions contained in Sections 4 to 25, every suit instituted, appeal preferred, and application made, after the period of limitation prescribed there for by the first schedule shall be dismissed, although limitation has not been set up as a defence. Therefore under Article 178 it must be an application made to Court for the filing in Court of an award which can come under that article. If such an application is made ninety days after the date of service of the notice of the making of the award, the application is out of time and will be liable to be dismissed. The question that arises for determination is whether when an arbitrator files the award under Section 14(2) of the Indian Arbitration Act he is making an application to the Court as contemplated by Article 178 of the Indian Limitation Act. Section 14(2) of the Indian Arbitration Act provides that 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 award. Therefore an arbitrator under the Act has to file the award either at the request of any party to the arbitration agreement or on an order being passed by the Court to that effect. In this case the Court did not direct the arbitrator to file the award and, therefore, presumably he acted under the first part of Section 14(2). Rules have been framed by our High Court under the Act, and Rule 375 lays down the procedure that the arbitrator has got to follow when he files his award. That rule provides that he has to forward the award under a sealed cover with a letter requesting that the same be filed. Rule 373 of the High Court Rules lays down that all applications under the Act shall be made by petition except those under Sections 17, 20 and 34 of the Act which have got to be made in open Court on a notice of motion. Therefore, reading Rules 373 and 375 together, it is clear that an arbitrator does not make an application to the Court when he files an award but he does an act which the statute requires him to perform, and he intimates to the Court by his letter that he has made the award and that award should be taken on the file. All that the Court does through its Prothonotary and Senior Master, upon the arbitrator forwarding the award with a letter of request, is to endorse the award and to direct that it should be filed.
4. The position is very different when an arbitrator does not file the award and a party applies to the Court to direct him to file the award. Then a formal application has got to be made by the party and on that application the Court makes the order. In my opinion it is only when such an application is made by a party to the reference that the application of Article 178 of the Indian Limitation Act is attracted. If such an application is beyond ninety days of the service of the notice on the party, then the Court would not entertain such an application as being barred. Whereas under the first part of Section 14(2) of the Indian Arbitration Act the arbitrator acts merely at the request of one of the parties, in the latter case he acts on an order of the Court made on an application presented by a party to the reference. Mr. Taraporewalla has drawn my attention to the inconsistency which would result from construing Article 178 of the Indian Limitation Act in the manner in which I am doing. Mr. Taraporewalla urges that whereas a party's application would be barred ninety days after the notice had been served upon him, an arbitrator would be at liberty to file the award at any time if so requested by one of the parties. I realise the force of this argument; but the answer to it is two-fold : firstly, it is not likely that an arbitrator would be permitted to allow a considerable period of time to lapse without his being called upon to file the award because the award is bound to be in favour of one or other of the parties and that party would be interested in seeing that the award was filed with due despatch. The second answer is that inconsistencies in a Statute are for the legislature. To the extent that the language of a section is clear the Court must give effect to it and especially in a statute like the Indian Limitation Act which deprives a party of valuable rights.
5. The third column of Article 178 which lays down the period from which limitation begins to run, namely, the date of service of the notice of the making of the award, seems to indicate that it is only when a party to a reference applies that the article would come into operation as the notice could only be served on one or other of the parties to the reference. It could not have been contemplated that this article should apply when the arbitrator files the award. Further there is considerable force in Mr. Desai's argument that the Indian Limitation Act applies to applications made by parties to proceedings. It cannot apply to any act done by one who is not a party to the proceedings and who is not interested in the result of the proceedings and, therefore, it could not have been intended that any act on the part of the arbitrator should be controlled by an article of the Limitation Act. In my opinion, therefore, when an arbitrator files his award he is not making any application to the Court and therefore Article 178 does not apply to the filing of the award by the arbitrator.
6. I am strengthened in the conclusion I have reached by two decisions-one of the Calcutta High Court and the other of the Sind Chief Court. In Keshri Mull v. Megh Raj Bas Deo (1942) 2 Cal. 69, on almost identical facts Mr. Justice Gentle came to the same conclusion and held that Article 178 of Schedule I of the Indian Limitation Act did not apply to an award which had Been already filed in Court. The Sind Court also, in John v. Soomar A.I.R (1943) Sind 33, came to the same conclusion.
7. It is rather interesting to note: the view taken as far back as 1881 by the Calcutta High Court in Robarts v. Harrison I.L.R (1881) Cal. 333. There Mr. Justice Wilson was considering Article 176 under the old Indian Limitation Act, which prescribed a period of six months from the making of the award for an ' application under the Code of Civil Procedure, Section 516 or Section 525, that an award be filed in Court.' Section 516 corresponded to the second schedule, Clause 10, of the Civil Procedure Code, before second schedule was removed from the Code on the passing of the new Arbitration Act; and Section 525 corresponded to the second schedule, Clause 20. Now under Schedule II, Clause 10, the award had to be filed by the arbitrator. And under Schedule II, Clause 20, which dealt with references without the intervention of the Court, any person interested in the award had to apply to the Court for the filing of the award; and Mr. Justice Wilson, although the article specifically referred to Section 516 which corresponded to Schedule II, Clause 10, came to the conclusion that under Clause 10 when the arbitrator filed the award there was no application as contemplated by Article 176 of the Indians Limitation Act (Act XV of 1877), and the language used by the learned Judge bears very pertinently on what happens even under the new Arbitration Act. At p. 335 the learned Judge says:
This causing the award to be filed, it must be observed, is the act of the arbitrators. The only duty of the Court or in officers is to receive the award when tendered, and, I suppose, to make the proper endorsement or entry, and deposit the document in its proper place. The judicial functions of the Court are to be exercised afterwards, or at any rate in different matters altogether.
I may point out that in this very case the award has been forwarded by the arbitrator with a letter of request. If that had been an application, it would have to be stamped as an application which it has not been.
8. I, therefore, hold that the filing of the award is not out of time as contended for by the petitioner and therefore the petition must fail and must be dismissed with costs. Costs fixed at Rs. 250.