1. This application is made by the third party for extension of time for filing the award. This suit was tried by me for several days, and thereafter, by consent of the parties, the whole matter in dispute was referred to the arbitration of the two senior counsel who appeared in the case at the hearing. By the consent order made on June 22, 1932, the arbitrators were directed to make and file their award within four weeks from the date of service of that order on them, with liberty to enlarge the time for making the award by making endorsements to that effect at the foot of the copy. In the event of the arbitrators disagreeing or failing to make and file the award within the time prescribed or enlarged as aforesaid, the matter was to be referred to the umpirage of Sir J. B. Kanga, who was also to make his award within the time provided in the order. The arbitrators entered upon the reference, held meetings from time to time, and it is common ground that by making endorsements on the order served on them extended the time up to April 25, 1933. The arbitrators in fact had made their award before that day, but it was not filed because there were certain disputes about payment of the fees of the arbitrators. The affidavits show that the plaintiff has now paid the arbitrators their fees and the award is in a position to be filed.
2. On behalf of defendants Nos. 1 to 5 three objections are raised against the present application: (1) that the time to file the award having expired the Court has no jurisdiction to extend the time ; (2) that by the terms of the order, on the expiry of the time, i.e., April 25, 1933, the matter ipso facto stood referred to the umpirage of Sir J. B. Kanga and, therefore, there is no question of extending the time for filing the award of the arbitrators appointed under the order ; and (3) that the order of reference itself is invalid because under that order the Court has not fixed a definite time within which, even after the extensions, the arbitrators have to make the award.
3. In support of the first contention the defendants rely on the wording of para. 8 of the second schedule to the Civil Procedure Code and the decision in Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar I do not think that contention of the defendants is sound. In the Code no time is prescribed for the filing of the award. Para. 10 of the second schedule. only directs that the arbitrators should file the award after it is made with the depositions and documents mentioned in that para. It is, however, contended that just as in the case of making the award the Court has no jurisdiction to extend the time, after the time prescribed in the order has expired, if the arbitrators have in fact made the award before the Court has extended the time, in the present case as the arbitrators have made the award the Court has no jurisdiction to extend the time for filing it. I am unable to accept this contention. In the first place para. 8 only provides for the extension of time for 'making' the award. According to the Privy Council decision, the Court will not extend the time for 'making' the award if it has expired and the arbitrators have made the award before the Court has granted the extension, Reading the words ' making and filing ' in place of ' making' in para. 8, the conclusion would, therefore, be that the Court would not extend the time for making and filing the award after the time prescribed, if the arbitrators have 'made and filed' the award before the extension is granted by the Court. The Privy Council decision does not, therefore, stand in the way of the jurisdiction of the Court to extend the time for filing the award in the present case, as the award is not filed in Court. Reading paras. 8 and 10 together, I think that the Court has ample jurisdiction to extend the time for merely filing the award which is nothing but a ministerial work to be done by the arbitrators. The form prescribed by the Code for an order of reference ( Form No. 2 in the appendix to schedule II) does not mention anything in respect of filing the award. The word 'file' is inserted in the order by reason of the form prescribed under High Court Rule 881 (Form No. 80). In my opinion the filing of the award is merely a ministerial act, and para. 8 of schedule II has nothing to do with the jurisdiction of the Court to extend the time for filing the award. I, therefore, think that the first contention of the defendants fails.
4. The wording of para. 9 of the second schedule clearly shows that the second contention of the defendants is not substantial. Having regard to the decision of the Privy Council in Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar, even after the time prescribed for making the award has expired, the Court has jurisdiction to extend the time. Under the contingency contemplated in Sub-clause (a) of para. 9, the umpire would enter upon the reference ipso facto if the arbitrators have allowed the time for making the award to expire. If the defendants' contention was correct, in that event, the Court would have no jurisdiction to extend the time because by reason of the order the matter would stand referred to the umpire under para. 9 of the second schedule. Evidently, this is not considered to be the correct way of interpreting the provisions of para. 8. The order as drawn up in the present case does not go beyond what is contemplated by para. 9 of the second schedule, and, therefore, this contention of the defendants also fails.
5. In support of that last contention, Mr. Maneckshaw has relied on the decision in Robindra Deb Manna v. Jogendra Deb Manna (1920) 27 C.W.N. 420 Rankin C.J. in that decision expressed an opinion that the provisions of para. 3 of the second schedule were mandatory and the Court could not indefinitely abandon its jurisdiction in respect of a suit filed in Court. In making the order the Court should limit the time within which the arbitrators are directed to make their award, and even if they are allowed liberty to enlarge the time, such liberty should be controlled by the Court. According to the learned Chief Justice, by allowing the arbitrators to enlarge the time by making endorsements on the copy of the order, without limiting the extent to which the time may be extended in that manner, the Court would be giving away the jurisdiction indefinitely, which was not proper. In that case the point to be considered by the Court was, whether when one party complained that the arbitrators had gone on indefinitely without coming to a definite result, the matter should not be brought back to the Court. In considering this point the learned Chief Justice made the observations mentioned above. The effect of that decision appears to be that in a case where the terms of the order of reference are as in the present case (which by the way does not appear to be an uncommon form as observed by Rankin C.J.), the Court could supersede the arbitration, provided on the application of one of the parties it comes to the conclusion that the arbitrators have not exercised their jurisdiction within a reasonable time which the Court expected them to do. In my opinion that case has no application here, and, in any event, at the present juncture. The order of reference in the present case was made in June, 1932, and owing to certain unavoidable and supervening circumstances the arbitration could not be completed before April, 1933. No party had complained at that time that there was any delay in the arbitration going on. The arbitrators having made the award, I do not think it is now open to the defendants to contend that because an application may have been made by them to supersede the arbitration, the Court should refrain from exercising the jurisdiction to extend the time for filing the award.
6. I think the present case is eminently one in which, if the Court has the discretion to exercise the jurisdiction, it should exercise that discretion in favour of extension. The matter, after having gone on for a long time before me, was likely to go on for some more time and would have been then referred to the Commissioner to determine the amount payable by one party to the other according to the basis laid down by the Court on the construction of certain documents and the evidence before the Court. The parties have spent their time and money in going on with the suit before me and before the arbitrators, and, if I refuse to exercise the discretion, the result would be that the parties have wasted all the time and money for nothing. The present contentions appear to be taken only by an unsuccessful litigant against a successful one in order to prevent the latter from getting the decree on the award.
7. The defendants lastly contended that the third party ought to have made this application under the chamber summons for directions by issuing a notice and not by taking out a separate summons. As all matters, in dispute between the parties in the suit, including the question of costs, which would include the costs of the chamber summons also, have been referred to the arbitrators, I think, in this case, the chamber summons has come to an end, and it was open to the third party to make this application by a chamber summons.
8. The chamber summons will, therefore, be made absolute. The defendants to pay the taxed costs of the third party. The plaintiff to bear his own costs.