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Mohamed Esoof Vs. V.R. Subramanyam and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 54 of 1955
Judge
Reported inAIR1957Kant78; AIR1957Mys78; ILR1957KAR57; (1957)35MysLJ155
ActsArbitration Act, 1940 - Sections 14, 17, 30 and 39; Limitation Act, 1908 - Schedule - Article 158; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantMohamed Esoof
RespondentV.R. Subramanyam and anr.
Appellant AdvocateG.R. Ethirajulu Naidu, Adv.
Respondent AdvocateS. Ranga Raj and ;V.S. Sadasivan, Advs.
Excerpt:
- prevention of insults to national honour act, 1971section 3; [anand byrareddy, j] offence under- playing instrumental version of the national anthem in the presidents function allegation that petitioner had intentionally avoided the singing of the national anthem at function organised by the petitioner to honour the president of india complaint against the petitioner whether the act of the petitioner amounts to causing insult and exhibiting dishonour to the national honour ? held, the president of india being the chief guest, the petitioner was required to follow the protocol that is mandatory at any place visited by the president of india. the petitioners direction to his own choir not to sing the national anthem was not a direction to the audience. the assembly was not prevented..........terms of the award and directed that a decree should follow. in this appeal, it is urged that the objection statement was not barred by time and that, in any event, article 158 of the limitation act had no application to the alternative prayer made by the applicant for the modification of the award and that that matter at least should have been dealt with by the court below.2. as mentioned above, the appellant in his statement before the court below claimed three alternative reliefs, i.e., setting aside the award, remitting the award for a proper adjudication or modifying the award. under section 39 of the arbitration act, while an appeal lies against an order refusing to set aside an award, no appeal lies against an order refusing to modify or correct an award, though an appeal does.....
Judgment:

Sreenivasa Rau, J.

1. This appeal 'arises from arbitration proceedings in which the present Respondent 1 was the sole arbitrator and the present Appellant and Respondent 2 were the two parties referring the dispute between them to the arbitrator. The latter filed an application under Sections 14 and 17 of the Arbitration Act. 1940, to the District Court, Bangalore, for a judgment and decree in terms of the award being pass-ed after notice to the parties.

The Appellant objected to the award on various grounds and prayed 'that the award be declared a nullity or that it be set aside and if for any reason the Court did not do so to remit the award to the arbitrator for a proper adjudication or in the alter-native to modify or correct the award. Respondent 1 controverted the grounds and allegations raised in the statement of the Appellant and supported the prayer of the arbitrator. Though the case was posted for evidence and evidence was recorded, the learned Judge disposed of the matter on the question of limitation which presumably was raised at the time of arguments.

He held that the objections raised by the Appellant were barred under Article 158 of Schedule I of the Limitation Act and passed judgment in accordance with the terms of the award and directed that a decree should follow. In this appeal, it is urged that the objection statement was not barred by time and that, in any event, Article 158 of the Limitation Act had no application to the alternative prayer made by the applicant for the modification of the award and that that matter at least should have been dealt with by the Court below.

2. As mentioned above, the Appellant in his statement before the Court below claimed three alternative reliefs, i.e., setting aside the award, remitting the award for a proper adjudication or modifying the award. Under Section 39 of the Arbitration Act, while an appeal lies against an order refusing to set aside an award, no appeal lies against an order refusing to modify or correct an award, though an appeal does lie against an order modifying or correcting an award. It therefore follows that we cannot in this appeal consider the point raised by the Appellant that the Court below should have gone into the question whether the award should be modified or not.

The only question for consideration, therefore, is whether the Appellant's objection in so far as it took the form of a claim for relief by way of setting aside the award was barred by time. Article 158 of Schedule I of the Limitation Act, as it stands now, fixes a period of 30 days from the date of service of the notice of filing the award for any application to set aside an award or to get an award remitted for reconsideration. It is not disputed that the arbitrator's application under Sections 14 and 17 of the Arbitration Act was presented to the Court below on 1-1-5-52, that notice was served on the Appellant on 27-5-52 and that the latter's objection statement was filed on 14-7-52, i.e. 48 days after the service of the notice. It was therefore beyond time in so far as setting aside the award or remitting it for consideration was concerned.

3. It is urged, however, that the Appellant appeared through Counsel on 2-6-52 and such appearance itself saved limitation. It is difficult to understand how mere appearance could have any such effect. Even after appearance it would be open to the party to agree to the application being granted. It is only when a specific prayer is made or objection is raised that the award is to be set aside or that the matter should be remitted for reconsideration that the party concerned can be regarded as having applied for such relief or reliefs.

In this connection the decision reported in Ebrahim Kassam v. Northern Indian Oil Industries Ltd., : AIR1951Cal230 (A), may be referred to. It was held in that case that where a certain ground to set aside an award was not stated in the application but was mentioned in the affidavit filed later it was the date of the affidavit that had to be taken into consideration in determining the question of limitation. It is only when the objection is formulated and placed before the Court that the party can be regarded as having applied to the Court.

It is urged that on 2-6-52 on which date the Appellant's Counsel filed the Vakalatnama before the Court below time was granted by the Court to file objections and that this circumstance would save limitation. Even so it is difficult to see how the clear language of Article 158 of Schedule I of the Limitation Act can be got over. It requires that any application for the setting aside of an award or for having it remitted for reconsideration should be made within 30 days of the service of notice of the filing of the award. The making of such an application whether in the form of an objection statement or in whatever other form it may be is entirely a matter within the volition of the party and his taking time to file objections cannot extend the period of limitation.

4. The learned Advocate for the Appellant has asked us to treat this appeal as a revision petition in so far as the question of modifying the award is concerned. It does not appear to us to be appropriate to deal with a part of the matter raised before us as an appeal and another part on the footing that it comes under revision.

5. This appeal is therefore dismissed with costs (Advocate's Rs. 50/-).

6. Appeal dismissed.


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