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The District Co-operative Development Federation Ltd. Vs. Ram Samujh Tewari - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 141 of 1962
Judge
Reported inAIR1973All476
ActsArbitration Act, 1940 - Sections 14, 14(2) and 17; Limitation Act, 1908 - Schedule - Article 178
AppellantThe District Co-operative Development Federation Ltd.
RespondentRam Samujh Tewari
Appellant AdvocateS.K. Srivastava, Adv.
Respondent AdvocateS.C. Das, ;Kesri Bir Prasad and ;H.N. Tilhari, Advs.
DispositionRevision allowed
Excerpt:
arbitration - exercise of power - sections 14 (2) , 17 of arbitration act, 1940 and article 178 of limitation act, 1908 - prayer for summon of award is not a condition precedent for exercise of power to pass a decree in terms of award - article 178 of limitation act, 1908 is applicable only when award is filed by the arbitrator at the request of the party - not applicable when filed by the arbitrator suo motu or on the suo motu direction of the court. - - 10. i have bad the advantage of reading the judgments prepared by my brothers o. in view, however, of certain observations made by brother jagmohan lal, i would like to add a few words of my own. it must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed. it appears to us that the.....omprakash trivedi, j.1. this revision has been referred for decision to full bench by order of hon'ble the chief justice, dated 17-4-1972 on the ground that there appeared to be a conflict between the two division bench decisions of this court reported in shri ram v. shripat singh : air1957all106 and rahmetullah v. vidya bhusan : air1963all602 .2. the facts leading to this reference, so far as material for our present purposes, are as follows:there was a written agreement dated 9-2-1959 between the district co-operative development federation ltd., pratapgarh, petitioner, and ram samujh tewari, opposite party, by which ram samujh tewari was appointed thekedar for running a brick kiln. one of the terms of the agreement was that in case of dispute between the parties arising out of the.....
Judgment:

Omprakash Trivedi, J.

1. This revision has been referred for decision to Full Bench by order of Hon'ble the Chief Justice, dated 17-4-1972 on the ground that there appeared to be a conflict between the two Division Bench decisions of this Court reported in Shri Ram v. Shripat Singh : AIR1957All106 and Rahmetullah v. Vidya Bhusan : AIR1963All602 .

2. The facts leading to this reference, so far as material for our present purposes, are as follows:

There was a written agreement dated 9-2-1959 between the District Co-operative Development Federation Ltd., Pratapgarh, petitioner, and Ram Samujh Tewari, opposite party, by which Ram Samujh Tewari was appointed Thekedar for running a brick kiln. One of the terms of the agreement was that in case of dispute between the parties arising out of the agreement the same would be referred for arbitration by the Deputy Commissioner, Pratapgarh. In accordance with this stipulation an application was moved by the petitioner before the Deputy Commissioner alleging that there was a breach of terms of the agreement by the opposite party and the Deputy Commissioner was urged to decide the same. On this dispute the Deputy Commissioner gave an award dated 7-3-1961 awarding a sum of Rs. 13,667.29 P. to the District Co-operative Development Federation against Ram Samujh Tewari. On 5th July, 1961 the petitioner filed an application purporting to be under Section 14 of the Indian Arbitration Act (Act X of 1940) before the Civil Judge, Pratapgarh bringing out the facts that in terms of the agreement on award had been made by the Deputy Commissioner on 7-3-1961 for the aforesaid amount, but the opposite party had not made any payment in terms of the award.

The only prayer contained in the application was that a decree may be made in terms of the award. On 3-1-1962 another application was moved on behalf of the District Co-operative Development Federation Under Order 13, Rule 1, Civil P. C. praying for summoning of the award along with connected papers from the Deputy Commissioner. The same day the Civil Judge ordered summoning of the award which was produced by the- Arbitrator before him on 7-2-1962. This award was signed by Sri Manohar Prasad, Vakil for the petitioner Federation and Sri Rajeshwar Prasad Tripathi, Vakil for opposite party Ram Samujh Tewari on 8-3-1961. On 7-2-1962 the Court issued to the parties notice for filing of the award and invited objections within a month. Only the opposite party filed objections under Section 14(3) of the Arbitration Act. The objections were dismissed on merits.

The application of the petitioner for making the award rule of the Court was resisted on a number of grounds. One of the grounds was that the application as framed was not maintainable, for although it purported to be one under Section 14 of the Arbitration Act it contained no prayer for summoning the award or for a direction to the arbitrator to file the award as required by Section 14(2) of the Arbitration Act (hereinafter called the Act). The Civil Judge took the view that an application under Section 14(2) of the Act with a prayer for summoning the award must be made within 90 days of the date of service of notice of making of the award and since no such application was made within 90 days the application dated 5-7-1961 as framed was not maintainable and refused to pass a decree in terms of the award. The correctness of this view of the learned Civil Judge is challenged in this revision.

3. The short point which falls for determination in the present case is whether a decree in terms of the award could not be passed on the basis of the application of 5-7-1961 under Section 14 which was moved for the petitioner before the lower Court mainly because it contained no prayer in terms of Section 14(2) of the Act for a direction by the Court for summoning the award from the arbitrator. A decree on the basis of an award can be made only under Section 17 of the Act. Section 14(1) of the Act provides that 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.

4. Section 14(2) of the Act is in these terms :

'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 shah thereupon give notice to the parties of the filing of the award.'

5. It was held in the case of Amod Kumar Verma v. Hari Prasad Burman, : AIR1958All720 that the provisions of Section 17 can be applied only in a proceeding started with an application under Section 14 and in a proceeding started under Section 33, when no proceeding started under Section 14 is pending, no decree can be passed and the only order that can be passed is one refusing to set aside the award. It was also observed in that case that an application to set aside the award before filing of the award under Section 14 is incompetent. A party aggrieved by the award can challengo it only through an application under Section 33 and must proceed under Section 14.

Much stress is laid for the opposite party by these observations made in the case of Amod Kumar Verma : AIR1958All720 but these observations should not be read in isolation or divorced from the context in which they were made and should not be taken to lay down that a decree cannot be passed by the Court under Section 17 of the Act under any circumstances when an application for filing of the award was never made under Section 14.

I am of the view that the exercise of jurisdiction by Court under Section 17 for making a decree in terms of an award is not necessarily dependent on the filing of an application by a party to the arbitration agreement under Section 14(2) with a prayer for Court's direction to summon the award. No doubt it is open to any party to the arbitration agreement or any such person claiming under such party to move the Court by an application under Section 14(3) to cause the award to be filed and when the award is summoned on such an application and produced in Court the Court may proceed under Sub-section (3) of Section 14, Section 14, Sections 15 and 16 and make a decree in terms of the award under Section 17. But that is not the only procedure which will lead to the making of an award by the Court under Section 17.

The Court on its own motion and suo motu under Section 14(2) direct the arbitrator to file the award if under any circumstances the Court receives information of the making of the award. There is no limitation provided for such suo motu summoning of the award by the Court from the arbitrator. It is noteworthy that Sub-section (2) of Section 14 of the Act does not contain any provision which may imply that the power to summon the award from the arbitrator is to be exercised by the Court only on an application with that prayer being made by a party. This is in contrast with Sub-section (3) of Section 20 of the Act containing such words as 'on such application being made, the Court shall direct notice thereof to be given to all parties to the agreement.' I am of the opinion, therefore, that the award can be summoned by the Court from the arbitrator suo motu under Section 15(2) if by any means the fact of making of an award comes to the Court's notice and the making of an application under Section 14(2) containing a prayer for summoning the award is not a condition precedent or a necessary condition to the exercise of such a power by the Court.

The award may be produced before the Court by the arbitrator also suo motu without either any party to the agreement making a request or without the award being summoned by the Court. In either case, whether the award is filed before the Court on being summoned on an application by a party under Section 14(2) or on the award being filed by the arbitrator suo motu or on the award being summoned by the Court suo motu, the Court must proceed to give notice of filing of the award to the parties and act under Section 17. The Court must pass a decree in terms of the award when it sees no cause to remit or set aside the award. In : AIR1963All602 it was observed:

'Section 14 of the Arbitration Act provides for the methods by which an award can come on the record of the Court as a preliminary step to giving the Court jurisdiction to make a decree on the basis of that award. The award can, as the provisions of Section 14 indicate, come on the record on an application by a party to have the arbitrator file the award along with the necessary enclosures to the award on the direction of the Court. The award can also come to the Court on the arbitrator taking action in respect of the filing of the award suo motu.'

In the case of R.L. Sondhi v. Accountant General of Punjab also the Court recognised the possibility of the award being filed before the Court by the arbitrator suo motu or upon a direction given by the Court. There is no limitation provided for filing of the award in Court by the arbitrator either suo motu or upon direction of the Court. It follows, therefore, that once the award has been filed in Court the Court acquires jurisdiction to pass a decree in terms of the award under Section 17 and it does not matter under what circumstances the award comes before the Court, that is to say, whether the award has been filed by the arbitrator personally or through an authorised agent suo motu or upon the Court's direction. In the present case, the Court had received information about making of the award from the petitioner's application of 5-7-1961 and actually summoned the award from the arbitrator by order dated 3-1-1962. In doing so, the Court appears to have treated the original application of 5-7-1961 as one under Section 14, as it expressly purported to be, or as a source of information to the Court of making of the award.

In either case it is clear that the Court summoned the award from the arbitrator in exercise of its power under Section 14(2) of the Act. Let us at present postpone considerations of the question whether the application of 5-7-1961 could be treated as one filed under Section 14(2) of the Act and whether the application was maintainable in the absence of a prayer for summoning the award and in the absence of the award being before the Court already. The question arises whether the Court could refuse to act under Section 17 and pass a decree in terms of the award when the award had been filed before it by the arbitrator in the above circumstances. Apart from every other aspect of the matter it is clear that the award having come before the Court; the parties having been given intimation of its filing, the Court became vested with jurisdiction to proceed to pass a decree in terms of the award under Section 17 of the Act and from that aspect of the matter alone it is clear that the Civil Judge was in error in taking the view that a decree in terms of the award could not be passed when an application as required by Section 14(2) had not been filed in time. The making of an application under Section 14(2) for summoning the award is not a condition precedent to the exercise of jurisdiction under Section 17 nor is it a fact which confers jurisdiction on Court to act under Section 17.

No doubt the Court has no occasion to, nor can it possibly exercise jurisdiction under Section 17 for so long as the award is not filed before it. A party to the arbitration agreement or a person claiming under such party may adopt the process of moving the Court by an application under Section 14(2) with a prayer for summoning the award. A motion by such an application is only one of the processes^ by which the filing of an award can be secured. The alternative processes, as indicated above consist of summoning of the award by the Court suo motu or its production by the arbitrators sou motu. Therefore, the exercise of power by the Court under Section 17 is not dependent on filing of an application under Section 14(2) and the Court can exercise power under Section 17 and proceed to pass a decree in terms of the award if the award has been produced before it notwithstanding the fact that an application under Section 14(2) had never been moved by a party to the arbitration agreement or a person claiming under such party. Of course, if the award has not been produced before the Court and no application has been filed under Section 14 praying for summoning of the award the Court cannot exercise power under Section 17 and a decree cannot be passed in terms of the award for the simple reason that the Court is not in a position to know in what terms the award has been made.

It is in this sense that observations made in the case of Amod Kumar Varma : AIR1958All720 to the effect that 'the provisions of Section 17 can be applied only in a proceeding started on an application under Section 14 and where no proceeding started under Section 14 is pending, no decree can be passed and the only order that can be passed is one refusing to set aside the award' should be understood. In that case the award was not filed before the Court by the arbitrator. It was produced in another suit by a commissioner who had been directed to seize it from the arbitrator. In the peculiar circumstances their Lordships held that the award had not been produced and because no application praying for summoning of the award had been moved under Section 14(2) they made the above general observations. It is clear that when these observations were made they were not considering the situation where an award may have been filed in Court. The above observations in the case of Amod Kumar Verma : AIR1958All720 therefore, do not apply to the present case. On the other hand, it is noteworthy that in the concluding portion of para 7 of the leading judgment of Desai, J. the following observations were made which support the view which I have expressed:

'Once the award has been filed in Court the law will take its course and a decree will be passed if the award is found to be in order.'

In para 8 of the report again Desai, J. observed :

'It follows that a decree can be passed under Section 17 only in a case starting with the filing of the award or with an application for the filing of the award under Section 14.'

6. In the case of Rahmatulla v. Vidya Bhusan : AIR1963All602 an award had come before the Court, having been filed by the plaintiff with a prayer that it may be made rule of the Court. The award had neither been filed by the arbitrator nor by one of the parties to the arbitration agreement nor was an application made in accordance with Section 14(2) of the Act. The question arose whether it was open to the Court before which the award was filed to act on the award under Section 17 and pass a decree on its basis where the award had not been filed as a result of proceeding started under Section 14 of the Act. The question was answered in the affirmative holding that the Court could pass a decree in terms of the award under Section 17 when the award had come before it and it was not necessary that the award should have come before it as a result of specific proceedings, as provided by Section 14, being taken. The situation in the present case is similar. There is nothing in terms of Section 14 of the Act which can preclude the Court from taking into consideration the award for the purpose of exercising jurisdiction conferred on it by Section 17. From. this point of view the Civil Judge was in error in refusing to exercise jurisdiction under Section 17 of the Act.

The award having been produced before it and the parties having been given notice he possessed jurisdiction to pass a decree in terms of the award if he saw no cause for setting aside or remittance of the award. The order of the lower Court was erroneous also from another angle. This application of 5-7-1961 was expressly described as one under Section 14 of the Act. The application contained a prayer for passing a decree in terms of the award but no prayer for summoning of the award in accordance with Sub-section (2) of Section 14, but this was only a formal defect. The application purported to be and indeed was expressed to be under Section 14, should have been treated as such and jurisdiction exercised under Section 17.

Indeed the lower Court appears to have actually treated the application of 5-7-1961 as one under Section 14 when it actually summoned the award by order of 3-1-1962. If the lower Court was of the view that the application dated 5-7-1961 was not strictly an application under Section 14(2) of the Act in the absence of a prayer for summoning the award, it could have permitted amendment of that application so as to add such a prayer and should have proceeded under Section 17 on such amendment.

Against such a course the submission of learned counsel for the opposite party was that an amendment, which took away a right vested in his clients by lapse of time, should not be permitted. No doubt, amendment should not be allowed when limitation for making an application under Section 14 has expired as such an amendment may cause manifest prejudice to the other side. But no such consideration could have arisen in the present case for it is not shown that the application of 5-7-1961 was filed beyond the period of limitation. Such an application, therefore, could be permitted to be amended to remove a formal defect. Similar view was taken in : AIR1957All106 . It is not necessary in the present case, however, to pass an order of remand for necessary amendment of the application under Section 14 dated 5-7-1961 because the award had already been filed before the lower Court and for reasons above stated the Court is competent to act under Section 17.

7. There remains now to say a few words on a submission on behalf of the opposite party to the effect that the award had been filed by the arbitrator beyond the limitation of 90 days provided under Article 178 of the Indian Limitation Act and the Court could not pass a decree on the basis of such an award under Section 17. I find no force in this argument. There is no limitation provided for filing of an award on the suo motu order of the Court or for the arbitrator to file the award suo motu. Article 178 of the Indian Limitation Act provided the limitation of 90 days for the filing in Court of an award from the date of service of the notice of the making of the award. It follows, therefore, from column 3 against Article 178 that the limitation of 90 days for filing the award is confined only to those cases in which the award is filed by the arbitrator at the request of a party to the arbitration agreement after the arbitrator or umpire has given notice in writing to the parties of the making and signing of the award. But Article 178 will not govern an award which is filed by the arbitrator either suo motu or on the suo motu direction of the Court in the absence of an application under Section 14 of the Act. In the present case the award was summoned by the Court on 3-1-1962 and was produced on 7-2-1962.

Support is derived by learned counsel for the opposite party for his argument from a Patna case : Rambilas v. Durga Bijai Prasad Singh : AIR1965Pat239 . It was held in that case that 'the act of filing the award in Court after the expiry of the period of limitation, though ostensibly the act of the arbitrators or the umpire, is in reality the act of one, the other or both parties to the arbitration agreement, that is to say, that the award has been filed on behalf of the one or both the parties. Therefore, the award cannot remain effective or binding upon the parties if no steps are taken to file it in Court within the time allowed for the purpose by the law and the rights of the parties cannot be affected by an award which has not been filed by the arbitrators in Court for several years after it has been made and notice has been given by the arbitrators to the parties of making and signing thereof.' I am in respectful disagreement with this view if it is intended to be of general application to cover also cases where the award has been filed by the arbitrator in Court suo motu, or where it is filed by the arbitrator on being summoned by the Court suo motu, without reference to an application under Section 14(2) of the Act.

If the arbitrator has given to the parties notice of the making of the award under Section 14(1) and is requested by a party to file it in Court the arbitrator must file it in Court within 90 days of the date of notice of the making of the award as prescribed by Article 178 of the Indian Limitation Act. But there may be cases where the arbitrator gives no notice of the making of the award to the parties as required by Section 14(1) of the Act; there is no request to the arbitrator by the parties to file the award in Court, and yet the arbitrator may file the award suo motu in Court. It is plain that Article 178 of the Indian Limitation Act would not govern such a case. In fact there is no limitation provided to cover such a case.

In the same way Article 178 will not be attracted if the award is summoned by the Court suo motu in the absence of an application as required by Section 14(2) and the award is filed by the arbitrator on being summoned by the Court under such circumstances. When the award has been filed by the arbitrator suo motu or upon the Court's summon in the absence of an application under Section 14(2), it would be manifestly unjust and would lead to miscarriage of justice if the Court were to hold that an award filed by the arbitrator under such circumstances would not be binding or lose its effectiveness. There appears to be no reason in the present case not to take the view that the award was summoned by the Court from the arbitrator in exercise of its suo motu powers when the application of 5-7-1961 did not in terms contain a prayer for summoning the award under Section 14(2). In that view of the matter there would be no question of limitation. In this view of the matter, which I take, I do not consider it necessary to enter into the question whether the petitioner had in fact received notice of the making of the award -- a fact which is not free from ............ (sic).

8. On the foregoing reasons and considerations I hold that the Civil Judge was in error in holding that the application of 5-7-1961 was not maintainable and that he was incompetent to pass a decree in terms of the award under Section 17 of the Act. The learned Civil Judge decided issues 2, 3 and 4 against the opposite party and dismissed the suit only on the ground that the application of 5-7-1961 was not maintainable. This was, for reasons already stated, an erroneous view. He was also in error in ignoring the fact that he was competent to exercise power under Section 17 in view of the fact that the award had actually been produced before him. In the circumstances the revision is entitled to succeed and should, in my opinion, be allowed.

9. I would, therefore, allow the revision, set aside the judgment of the lower Court dated 30-7-1962 and decree the suit for making the award rule of the Court and direct the making of a decree in terms of the award with costs of this Court and lower Court against the defendant-opposite party.

K.B. Srivastava, J.

10. I have bad the advantage of reading the judgments prepared by my brothers O.P. Trivedi and Jagmohan Lal. In view, however, of certain observations made by brother Jagmohan Lal, I would like to add a few words of my own.

11. The revision concerns a matter under the Arbitration Act, hereinafter referred to as the Act. The petitioner Federation entered into a contract with the opposite party Ram Samujh Tewari on February 9, 1959. When certain disputes arose, under Clause (15) of the contract, the Federation referred it on March 13, 1960 to the arbitration of the Deputy Commissioner, Pratapgarh, who was the sole agreed arbitrator. The Deputy Commissioner made and signed his award on March 7, 1961 under which he decreed a sum of Rs. 13667.29 as payable by Ram Samujh Tewari to the Federation. The parties are alleged to have been made aware of the award on March 8, 1961; on which date, Ram Samujh Tewari signed it in person and his counsel Shri Rajeshwari Prasad Tripathi and the Federation's counsel Shri Manohar Prasad signed it as witnesses. There were some clerical mistakes in the award which were corrected by the arbitrator on June 17, 1961. The award was registered on June 19, 1961. The petitioner moved an application before the Civil Judge, Pratapgarh on July 5, 1961, styled as an application under Section 14 of the Act, wherein it was alleged that in spite of the award, the opposite party Ram Samujh Tewari had not made any payment towards the decretal amount awarded and, therefore, judgment be pronounced according to the award.

No prayer, however, was made for the issue of any direction by the Court requiring the arbitrator to file his award and the connected documents in Court, as contemplated by Section 14(2) of the Act. Notice was issued to Ram Samujh Tewari who filed an objection purporting to be one under Section 33 of the Act challenging the award on various grounds; but not pleading either that the application was not maintainable in the absence of a prayer for the issue- of the direction for the filing of the award or that it was barred by limitation. The federation filed a replication on December 9, 1961. It also moved an application under Order XIII, Rule 1, Code of Civil Procedure on January 3, 1962 for summoning the award and its connected papers. The Deputy Commissioner caused the award to be filed on February 7, 1962. Ram Samujh Tewari filed a fresh objection on March 1, 1962. He again challenged the award on merits bat took a further plea that the award was 'being filed beyond time' and was 'illegal and invalid'. The maintainability of the application as an application under Section 14 of the Act was not challenged on this occasion also. This was done by another application which was moved on March 12, 1962 and it was pleaded therein that the Court had no jurisdiction to pronounce any judgment inasmuch as the application had not been made in accordance with the provisions laid down in Section 14 and was 'not maintainable in law'.

12. The learned Civil Judge held that the application was not maintainable for the reasons that there was no prayer for the issue of a direction by the Court for the filing of the award, that such a prayer was made for the first time on January 3, 1962 but that was beyond the period of limitation which had commenced on March 8, 1961 when either the parties or the counsel had signed the award; and in such circumstances, there being no compliance with the provisions contained in Section 14(2) of the Act, the application itself was not maintainable.

13. The Federation filed a revision against this order in this Court. It was heard by the Chief Justice who referred it to this Full Bench because of apparent conflict between two Division Bench decisions reported in : AIR1957All106 and : AIR1963All602 .

14. The first argument of the learned counsel for the petitioner is that limitation has still not started running and, therefore, his application dated January 3, 1962 praying for the issue of a direction by the Court requiring the arbitrator to file the award in Court, or for that matter an application that he may choose to make even at the time of arguments, could not be beyond limitation, when the terminus a quo was still not in the picture. Article 178, Indian Limitation Act, 1908, is applicable to the instant case, Under this article, an application under the Arbitration Act, 1940 for the filing in Court of an award has to be made within 90 days 'from the date of service of the notice of the making of the award'. There can be no two opinions that the phrase 'the notice of the making of the award' can have reference only to Section 14(1) of the Act. That section says that 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 the signing thereof and the amount of fees and charges payable in respect of the arbitration and award. When under column 0) of Article 178, Indian Limitation Act, 1908, the Legislature refers to applications 'under the Arbitration Act 1940', the notice of the making of the award, referred to in column 3 of that article, can have reference only to the giving of notice in writing mentioned in. Section 14(1) of the Act.

15. The next question is whether or not the arbitrator gave any notice to the parties to the dispute. It is the admitted case of the parties that no such formal notice was given. However, the contention of the learned counsel for Ram Samujh Tewari is that the signing of the award on March 8, 1961 by Ram Samujh Tewari in person and by Shri Manohar Prasad, counsel for the Federation, amounts to notice both under Article 178, Indian Limitation Act, 1908 and also under Section 14(2) of the Act. Reliance has been placed on Ganga Ram v. Radha Kishan . In that case both parties had signed the award. Khosla, J. took the view that the period of limitation would commence from the date on which the parties had signed the award because they came to know of the existence of the award from that date and that knowledge on their part would amount to notice. This ex parte decision by Khosla, J. was overruled after restoration, by a Division Bench of the Punjab High Court in Ganga Ram v. Radha Kishan . The Division Bench observed that the mere fact that the parties had signed the award will not 'bring the case within Section 14(1) of the Act.'

In Misri Lal v. Bhagwati Prasad : AIR1955All573 , the view taken was that the date of the award, or the knowledge of the award, would not be the starting point of limitation and instead the starting point would be the date of the service of the notice. It was further observed that if a party does not receive a notice of the award, as prescribed by law, he would evidently be within his right to wait for the receipt of such a notice and if he finds after some time that no notice has been received by him, it would be open to him to make an application for the filing of the award even if no notice has been received, but in all such cases, the application would not become barred by time unless it is presented more than 90 days after the receipt of a written notice of the award.

To the same effect is the decision of the Patna High Court in Jagadish Mahton v. Sundar Mahton, (AIR 1949 Pat 393) which says that time will not run against an applicant till a written notice has been served upon him as required by Section 14(1) of the Act. In P. Ramulu v. N. Appalaswami,' (AIR 1957 Andh Pra 11), the Andhra Pradesh High Court held that the terminus a quo is the service of the notice of the making and the signing of the award; and the mere fact that the award came to the knowledge of the parties would not dispense with the necessity of service of notice in order to invoke the penalty of dismissal under Article 178, Limitation Act. In Ratnawa v. Gurushiddappa (AIR 1962 Mys 135) also, the award had been read out to the parties and their signatures obtained. But no notice of the making and signing the award as such had been issued to them. In such circumstances, it was held that time will not begin to run until the parties had been notified by means of a notice in writing as contemplated under Section 14(1) of the Act

16. I have mentioned elsewhere that Section 14(1) of the Act requires that after the arbitrators or umpire have made their award, and after they have signed it, they have to 'give notice in writing to the parties of the making and signing thereof.' Section 42 of the Act says that any notice required by it to be served by a party to an arbitration agreement or by an arbitrator or umpire shall be served in the manner provided in the arbitration agreement, or if there is no such provision, either (a) by delivering to the person on whom it is to be served, or (b) by sending it by post in a letter addressed to that person at his usual or last known place of abode or business in India and registered under Chapter VI of Indian Post Office Act, 1898. The notice under Section 14(1) is a notice required by the Act to be served by the arbitrators or the umpire.

That being so, service must be made primarily in accordance with the mode of service agreed to between the parties in their arbitration agreement, and if there be no such provision in the arbitration agreement, then in either of the two manners prescribed by the statute itself. It is not disputed that the notice was not sent by post. Nor is it disputed that no mode of service is stipulated, in the agreement. The contest is that it was1 served in the manner mentioned in clause (a) of Section 12, I am afraid compliance with Clause (a) was also not made. When the statute prescribed the mode in which a thing is to be done, it must be done in that manner, and cannot be done in any other manner. The words used in Section 14(1) are 'shall give notice in writing' and the words used in Section 42 are 'shall be served'. The mode of service in Clause (a) is by delivering to the person on whom tbe notice is to be served. To my mind, the verbs 'serve' or 'deliver' imply a written notice to start with, and which notice should be physically handed over to the affected parties.

The word 'give' cannot imply 'take'. In the instant case, no notice was given, no notice was served, no notice was delivered, and what was done was the mere obtaining of the signature of Shri Manohar Prasad, counsel for the Federation, and that also in his capacity as a witness. Let me assume that the Federation's counsel came to have knowledge on March 8, 1961, and through him, it must be taken that the Federation also acquired knowledge of the making and the signing of the award on that date. Limitation under Article 178, however, does not start from the date of knowledge but from 'the date of service of the notice of the making of the award.' Knowledge will not be the terminus a quo. The starting point of limitation will be the date of service of the notice in writing. It is quite true that what will be considered a sufficient notice in writing of the making and the signing of the award will be a question of fact in each case. In Parasramka Commercial Co. Ltd. v. Union of India : [1970]2SCR136 , their Lordships of the Supreme Court observed thus:

'Reading the word 'notice' as we generally do, it denotes merely an intimation to the party concerned of a particular fact. It seems to us that we cannot limit the words 'notice in writing' to only a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed. In the present case, a copy of the award signed by the arbitrator was sent to the company. It appears to us that the company had sufficient notice that the award had been made and signed .................. A written notice clearly intimating the parties concerned that the award had been made and signed, in our opinion, certainly starts limitation.'

17. No such notice, as observed earlier, was ever sent to anybody.

18. To sum up, I am in agreement with brother Jagmohan Lal that no notice was sent as required by Section 14(1) of the Act and consequently, there could be no question of limitation starting running or having run out. In that view of the matter, the application dated January 3, 1962 must be taken to be within the period of limitation as no notice had been served even by that date.

19. The second point pressed by the learned counsel for the petitioner is that once the award was filed by the arbitrator on February 7, 1962, the learned Civil Judge had no option left but to proceed to give notice of the filing of the award and then either to modify or correct the award under Section 15, or to remit it under Section 16 or to set it aside under Section 33, read with Section 30, or to pass judgment in term of the award under Section 17 of the Act. Once the award is filed by the arbitrators or the umpire, it cannot be ignored or brushed aside. There can be no question of limitation when the award is filed by the arbitrators or the umpire suo motu. Article 178 applies to an application for the filing of the award and not to the act of filing of the award. Likewise, limitation can have relevance against a party to the litigation and not to an arbitrator or umpire who is not a party thereto. Article 178 has no application where the award is filed by the arbitrator or umpire or where the Court itself; summons it.

I need not cite many authorities as only a few will suffice. See Mohammad Yusuf v. Mohammad Hussain, (AIR 1964 Mad 1) (FB); Nathuram Girwarchand v. Baijnath Mangakhan Lal : AIR1959MP422 and Champalal v. Mt. Samrath Bai : [1960]2SCR810 . In : [1970]2SCR136 (supra), the award was made on April 26, 1950, the application under Section 14(2) was made on March 30, 1951 for making the award rule of the Court. The arbitrator sent the original award to the Court on July 3, 1951. The application under Section 14 was held as barred by limitation. Nevertheless their Lordships of the Supreme Court observed that the award could not be ignored. They summarised the position thus:

'But we make it clear that the other part of the case, namely, what is to happen to the award sent by the Arbitrator himself to the Court has yet to be determined and what we say here will not affect the determination of that question. Obviously enough that matter arises under the second Sub-section of Section 14 and will have to be considered quite apart from the application made by the company to have the award made into rule of Court.'

In view of what I have said on these two points, which by themselves are sufficient for the disposal of the revision, I need not enter into the other controversies raised at the Bar.

20. The learned Civil Judge was, therefore, in error in holding that the application was not maintainable. The result is that I agree with my learned brothers with regard to the order proposed by them,

Jagmohan Lal, J.

21. I had the benefit of going through the judgment prepared by my learned brother O.P. Trivedi, J. I agree with him that this revision should be allowed and a decree be passed in favour of the petitioner in accordance with the award, along with costs in the lower Court as well as in this Court.

22. I, however, feel it necessary that a few more material facts of this case should be noticed besides those recorded by brother Trivedi in his judgment I am also unable to agree with him in respect of certain observations made by him as to the scope of Article 178 of the Limitation Act, 1908. I, therefore, propose to record my self-contained judgment.

23. The facts of this case are that the petitioner District Co-operative Development Federation Ltd., Pratapgarh, and the opposite party Ram Samujh Tewari entered in a transaction, the terms of which were reduced to writing in the form of an agreement which contained an arbitration clause that if any dispute arose between the parties in relation to that transaction the same shall be referred to the Deputy Commissioner Pratapgarh for his arbitration. Some dispute having arisen, the same was referred to the said arbitrator who after hearing the counsel for the parties made and signed his award on 7-3-1961. The counsel for the parties also subscribed their signatures to this award on 8-3-1961. On 16-6-1961 another document was executed by the arbitrator correcting some clerical mistakes in the award. Both the documents were then presented before the Sub-Registrar on 19-6-1961 and they were duly registered under the Registration Act. Under the award a sum of Rs. 13,667.29 was payable by the opposite party to the petitioner.

24. On 5-7-1961 the petitioner submitted an application captioned as under Section 14 of the Arbitration Act to the Civil Judge, Pratapgarh. The application was made on a Court-fee Stamp of Rs. 200/-as prescribed by Article 18 of the Schedule II to the Court-fees Act as amended in its application to this State. This application which was presented on the re-opening day of the Courts after Civil Court vacation was also within 90 days' rule of limitation prescribed by Article 178 of the Limitation Act, 1908. This period has been cut down to 30 days under Article 119 of the new Limitation Act, 1962. But, since this case is governed by the old Limitation Act the reference in this judgment has been made only to that Act. The relief that was prayed for in this application was that the award made by the Deputy Commissioner Pratapgarh be made rule of the Court and a decree for the amount, awarded by the arbitrator, be passed against the opposite party along with costs.

25. This petition was registered as Regular Suit No. 6 of 1961 under Section 14(2) of the Arbitration Act, as required under the General Rules (Civil). Notice was issued to the opposite party who filed an objection on 4-11-1961 attacking the award on merits, but without raising any objection to the maintainability of that application in which there was no specific prayer for the filing of the award. The petitioner filed a replication against it on 9-12-1961 and then 16-1-1962 was fixed for issues. In the meantime on 3-1-1962 the petitioner made a routine application for summoning of witnesses in which it was prayed that the award and other connected papers be summoned from the Deputy Commissioner, Pratapgarh. This application was allowed on the same day and on 4-1-1962 a summons was issued to the Deputy Commissioner to file the award and other papers. The award and the connected papers were filed by the Deputy Commissioner through some clerk of his office on 7-2-1962. The parties were informed of the filing of the award and they were required to file objections, if any, within a month.

26. On 7-3-1962 the opposite party filed his objections attacking the award on merits and also alleging that the award was filed beyond time and was illegal and invalid. He prayed that the award may be set aside. But, even at that time there was no specific plea that the application dated 5-7-1961 made by the petitioner was not maintainable. On 12-3-1962 the opposite party filed another application in which it was alleged for the first time that the petitioner's application dated 5-7-1961 was not maintainable inasmuch as it was not in accordance with the provisions of Section 14 of the Arbitration Act (to be hereinafter referred as the Act). It was also pleaded that the Court had no jurisdiction to pass a decree on the basis of this application and it was prayed that a preliminary issue about the maintainability of that application be framed and decided as a preliminary point.

27. The Court framed issues covering this preliminary point as well as the other pleas raised by the opposite party attacking the award. All the issues were then decided by the Civil Judge under his judgment dated 30-7-1962. He overruled the pleas of the opposite party attacking the award on merits. But, on the preliminary point ho recorded a finding against the petitioner. He was of the opinion that the application dated 5-7-1961 by itself, though presented within the time prescribed by Article 178 of the Limitation Act, was defective in as much as no prayer for issue of a direction to the arbitrator to file the award had been made in it and such a prayer was made by the petitioner only in his subsequent routine application dated 3-1-1962. The two applications taken together fulfilled the requirement of law, but by the time the subsequent application was made the limitation prescribed by Article 178 of the Limitation Act had run out. The learned Civil Judge was, therefore, of the opinion that the direction issued by him on this application dated 3-1-1962 to the arbitrator to file the award was without jurisdiction and the subsequent proceedings, including filing of the award by the arbitrator in compliance with this direction, were also irregular and invalid. He accordingly dismissed the petitioner's application dated 5-7-1961 for making the award a rule of the Court. It is against this order that the revision has been filed.

28. The procedure for arbitration without intervention of a Court is given in Chapter II of the Act. After an award has been made and signed, the arbitrator has to give notice in writing to the parties of making and signing of the award as required by Section 14(1) of the Act. A party who wants to have the award set aside has to make an application to the competent Court under Section 14(2) of the Act praying for the filing of the award if the award has not already been filed upto that time by the arbitrator either of his own accord or at the request of any party to the arbitration. Such an application has to be made within 90 days of the service of notice on that party of the making of the award as required by Article 178. The court-fee payable on that application is on a graded scale according to the value of the award subject to a maximum of Rs. 200/- when the value exceeds Rs. 10,000/-as prescribed by Article 18 of Schedule II to the Court-fees Act. After the award has been filed the Court has to give a notice to the parties as provided in Section 14(2) of the Act. Within 30 days from the receipt of this notice the party who wants to challenge the award and get it set aside has to make another application under Section 33 of the Act. The prescribed court-fees for such an application is also the same as for an application for filing of the award.

29. If a party in his application for filing of the award also combines a prayer for setting aside the award, stating the grounds mentioned in Section 30 of the Act on which he wants the award to be set aside, there can possibly be no legal objection to it subject to the application being within time and payment of the prescribed court-fees by the applicant. In such a case, it is not necessary for the party to make another application under Section 33 of the Act after receiving the notice about the filing of the award, though it is permissible for him to do so even at that stage.

30. If, however, he makes only an application under Section 33 of the Act for setting aside the award (which has not so far been filed in Court) without making any prayer for filing of the award, such an application is premature and liable to be rejected as was held by the Bombay High Court in Ratanji Virpal & Co. v. Dhirajlal Manilal, (AIR 1942 Bom 101) and by the Calcutta High Court in Bengal Jute Mills v. Jewraj Heeralal : AIR1944Cal304 .

31. Now, a person who relies on the award and wants it to be made a rule of the Court has to follow the same procedure with a slight difference. All that he is required to do is to make an application under Section 14 of the Act for the filing of the award within the time prescribed by Article 178 and bearing the court-fees as provided in Article 18 of Schedule II to the Court-fees Act. After the award has been filed and the objections, if any, filed by the other side against the award have been rejected, the Court shall proceed to pronounce judgment according to the award and pass a decree making the award a rule of the Court as required by Section 17 of the Act even without that party making any application to that effect. It was held by the Madhya Pradesh H. C. in Sheoramprasad Ram Narayan Lal v. Gopal prasad Parmeshwardayal Shukla : AIR1959MP102 that the Court may suo motu pass a decree under Section 17 of the Act even though no application has been filed by either party for the purpose. There is, however, no legal bar to that party making a specific prayer for passing a decree in terms of the award either in his original application made under Section 14 of the Act for the filing of the award or at a subsequent stage, though such a prayer on his part is not mandatory as it is with regard to a party who wants to avoid the award.

32. There may be a case in which a party simply prays that the award, which has not been filed in Court uptill then, be made a rule of the Court without making a specific prayer that the arbitrator be directed to file the award. Strictly speaking, such an application can be rejected by the Court unless it deems fit to allow the applicant to amend his application by Incorporating in it that prayer. If, however, such an application is not rejected by the Court in limine and it is entertained and proceedings are started on its basis and in the meantime the award is filed in Court by the arbitrator, the occasion for dismissing that application does not arise. The award has to be disposed of according to the provisions contained in Chapter II independently of such application. It may be stated that there is no limitation prescribed for the filing of the award by the arbitrator either of his own accord or at the request of any party and the time prescribed by Article 178 of the Limitation Act does not apply to it. There are numerous decisions of the various High Courts including this Court, to support this proposition. Reference may be made only to a Division Bench decision of this Court in Dwarka Das v. Pearay Lal : AIR1949All234 in which it was held that where the arbitrator himself files an award, though at the request of a party, he need not make any application and he can simply file the award and Article 178 of the Limitation Act will have no application to it.

The Supreme Court has also ruled in : [1960]2SCR810 that Article 178 of the Limitation Act does not apply to the filing of the award by the arbitrators. The contrary opinion expressed by a bench of Patna High Court in : AIR1965Pat239 which was dissented from in a subsequent decision by another Bench of the same High Court in Mohammad Hasan v. Mohammed Anwar Ahmad : AIR1968Pat82 cannot be deemed to lay down correct law in view of the above Supreme Court decision. In fact the very language of Article 178 shows that it applies to an 'application' for filing of the award.

The application contemplated by this Article is the application made by a party containing a prayer under Section 14(2) that the arbitrator be directed to file the award. So far as the arbitrator is concerned he may simply send the award or produce it before the Court without making any application.

33. Likewise this limitation also does not apply to the issue of a direction by the Court to the arbitrator to file the award. Such a direction can be issued by the Court even after the expiry of 90 days from the service of notice of making and signing of the award. If a party makes his application under Section 14(2) on the last day of limitation prescribed by Article 178, the direction has necessarily to issue after this limitation of 90 days and the award can be filed still later. So it is not correct to say that an arbitrator can file an award on the request of a party only within 90 days rule of limitation prescribed by Article 178, though of his own accord he can do so even after period.

34. In (AIR 1970 SC 1654) the party which relied on an arbitration award made an application to the Court under Section 14(2) read with Section 17 of the Act for making the award a rule of the Court, but on the date on which this application was made it was barred by limitation prescribed by Article 178 of the Limitation Act. While the application was pending the arbitrator sent the original award to the Court. The application was ultimately rejected as time-barred. When the matter was taken in appeal to the Supreme Court that Court also agreed with the trial Court and the High Court that the application under Section 14 of the Act was time-barred and hence it had been rightly rejected, but at the same time it was held that the award which had been sent by the arbitrator himself to the Court had still to be disposed of independently of this application according to the procedure prescribed by Chapter II of the Act. For that purpose, the case was sent back to the trial Court without expressing any opinion whether fresh objections court be raised by the other party in answer to the award filed by the arbitrator.

35. Lastly, we come to a case like the present one in which the application made by a party contains only a prayer for making the award a rule of the Court without making a specific prayer for a direction being issued to the arbitrator to file the award, and such application is entertained by the Court and on its basis direction is issued to the arbitrator. If the arbitrator files his award in compliance with such direction, the award cannot but be deemed to have been validly filed within the meaning of Section 14(2) of the Act. Ordinarily, the Court shall issue such direction on the application of a party. But there is no bar to the Court issuing such direction suo motu. Section (4 (2) does not in terms provide that the Court shall direct an arbitrator to file his award only on an application made to this effect by a party and cannot do so suo motu.

36. So far as the jurisdiction of the Court is concerned, once a party invokes the jurisdiction of the competent Court by making a prayer that an award be made the rule of the Court or it be set aside, the Court has full jurisdiction to pass any order including the issue of a direction to the arbitrator to file the award, for disposing of that prayer, if it does not choose to reject that application in limine. It is the settled law that under Order 7, Rule 7 of the Code of Civil Procedure which is applicable to arbitration proceedings also by virtue of Section 41 of the Act, the Court has a discretion to mould the relief prayed for by a suitor suitably according to the requirements of the case and to grant any other relief in lieu of or in addition to the relief prayed for.

37. In (AIR 1952 Punj 350) an application purporting to be under Section 17 was treated in substance as one under Section 14(2). But since it was made beyond the time prescribed by Article 178, it was dismissed as time-barred.

38. In Lackshmi Prasad v. Gobardhan Das, (AIR 1948 Pat 171) an application purporting to be under Section 33 was treated as one under Section 14(2) and notice was issued to the arbitrators who in response to that notice produced in Court the entire proceedings including the award. After that the applicant sought for and was allowed to withdraw himself from this application. The other party then requested the Court to make the award a rule of the Court which was objected to by the first party. The trial Court refused this prayer on the ground that the award had not been filed in the manner laid down in Section 14(2). But in appeal the High Court of Patna held that the application of the other party under Section 33 was not tenable until the award had been filed, but since the award had come before the Court in compliance with a notice issued by it, it should have been disposed of according to law.

39. Learned counsel for the opposite party relies on a Bench decision of this Court in : AIR1958All720 in which it was observed at page 724 of the report that when a definite procedure from the filing of an award upto the making of a decree is laid down in the chapter dealing with arbitration without intervention of a Court and it contains no provision expressly allowing a decree to be passed in any other manner, it follows that a decree can be passed under Section 17 only in a case starting with the filing of the award or with an application for the filing of the award under Section 14.

40. I am in respectful agreement with this observation in so far as it is the correct procedure which should ordinarily be followed by a party which relies on an award. The facts of this case were very peculiar. An award was made by the arbitrator on 21-9-1946, of which notice was given to the parties on 23-9-1946. On 22-11-1946 one of the parties to the agreement filed a suit praying for decree on the basis of the award and oil his motion the Court appointed a commissioner to seize the award from the arbitrator. A lawyer who was appointed a commissioner went to the arbitrator and seized the award from his possession. That suit was afterwards dismissed in default and nobody applied for restoration of that case or for any other action being taken on the basis of the award in that suit. Thereafter, another suit was filed by another party on 16-12-1946 praying that the award may be made a rule of the Court. In this suit also all the interested parties were impleaded.

Later on the counsel for the plaintiff made a statement that since the award had already been filed in the previous suit, the purpose of the suit had been achieved and the relief of making the award a rule of the Court had become superfluous and nothing remained to be done in that suit. The Court then held that the award which had been filed in another case could not be made a rule of the Court in the second suit and besides that the plaintiff did not want it to be made a rule of the Court and so nothing remained to be done in that suit which was accordingly dismissed. In the meantime, two other parties to the agreement filed two separate suits for setting aside the award under Section 33 of the Act. These suits were resisted by the party who had filed the previous suits for making the award a rule of the Court. The award which was still on the record of the first suit was requisitioned from the record room. The trial Court refused to set aside the award and passed an order that a decree be passed in terms of the award. On an appeal filed against that decree, this Court partly allowed the appeal and set aside the order of the trial Court in so far as the award was made a rule of the Court.

It was observed in this case that the law contemplates that a decree will be passed on the basis of the award in the ordinary course unless it is set aside or remitted. Once an award has been filed in Court, the law will take its course and a decree will be passed if the award is found to be in order. But, in that case the award had not been filed in any of the modes contemplated by Section 14(2) of the Act. It was not clear whether the arbitrator voluntarily handed over the award to the commissioner or the same was attached from his possession. If the commissioner seized it and then filed it in Court, it cannot possibly be held that the arbitrator caused it to be filed. Even in the second suit it had been held that the award had not been filed for the purposes of that suit as contemplated by Section 14(2) of the Act. So in that third suit, it could not be held by any stretch of imagination that the award had been filed in the manner provided in Section 14(2) of the Act on the basis of which a decree could be passed under Section 17 of the Act.

41. In (AIR 1957 All 106) a party who relied on an award made on 15-11-1946 filed a suit on 12-2-1949 for passing a decree in terms of the award. During the pendency of the suit, the award was filed in Court by one of the arbitrators on 2-12-1949. The trial Court held that the award had been duly made and there was no flaw in it. The suit was accordingly decreed and a decree in terms of the award was passed on 9-12-1949.

42. When the other party went in appeal a Bench of this Court held that in view of Section 32, a suit was not maintainable and the party who desired a decree to be passed in terms of an award ought to have filed an application under Section 14 containing a prayer that the arbitrators be asked to file the award. It was, however, observed that if the appellant had taken an objection in the Court below that the suit was not competent because an application should have been made under Section 14 of the Act, the objection could have been met by means of a simple application asking for an amendment of the plaint and treating it as an application under Section 14. Such amendment would have been allowed since the plaint was filed within the time prescribed by Article 178. The Bench further observed that had this been the only irregularity in the proceedings of the Court below, it would not have interfered with the order passed by that Court. But there was another irregularity noticed by the Bench which was that the decree was passed by the trial Court on 9-12-1949 while the award was filed on 2-12-1949 and so 30 days' time was not allowed to the other party for filing objection and making an application under Section 33 for setting aside the award.

On this ground the decree of the Court below was set aside, but the case was remanded with the direction that the trial Court shall allow the appellant to file an application within 30 days to set aside the award. The Court will then consider this application of the appellant and treating the plaint of the respondent as an application under Section 14 of the Act, decide the matter according to law. This decision which on its facts is quite correct, if I may say so with all respects, also supports the above proposition that the Court has a discretion to treat an application (plaint in that case) purporting to be under Section 17 as an application under Section 14 and proceed accordingly, provided that application has been made within the limitation prescribed by Article 178.

43. In : AIR1963All602 an award was made on 17-1-1955. One of the parties to the arbitration agreement, who relied on the award, filed tbe award in the proper Court on 22-3-1956 and prayed that the award may be made rule of the Court. No objection was raised by the opposite party that the award had not been properly filed by the plaintiff in the Court nor was it suggested that, when the plaintiff filed the award, he filed it surreptitiously and that there was no authority by the arbitrator that the plaintiff should file the award. Under these circumstances, it was held that the plaintiff filed the award under the authority of the arbitrator and as no time limit was prescribed during which the arbitrator could file or cause it to be filed in the court, the filing of the award could not be said to be beyond time. The application made by the plaintiff praying that the award be made the rule of the Court was in substance an application under Section 17 of the Act though wrongly purporting to be under Section 14(2) of the Act. Neither the Limitation Act nor the Arbitration Act prescribed any specific period of limitation for such an application under Section 17 of the Act and so no question of limitation could arise in respect of that application unless it was held that it was governed by Article 181 which was applicable, the application made by the plaintiff on 22-3-1956 was well within time, the award having been made on 17-1-1955.

44. I am in respectful agreement with this decision on the facts of that case. The point which is relevant for the purposes of the present case is that in this case also it was held that it was open to the court to treat an application purporting to be under Section 14(2) of the Act to be one under Section 17 of the Act, if no direction of the court was necessary calling upon the arbitrator to file the award. Since in that case it was found that the plaintiff had filed the award under the authority of the arbitrator a direction as contemplated under Section 14(2) of the Act was not called for. All that the plaintiff could do was to pray for the passing of a decree on the basis of the award. Such a decree would have been passed in due course of law even in the absence of a specific application to this effect by the plaintiff.

45. From the above discussion it is evident that there is actually no conflict in the aforesaid decisions : AIR1957All106 and : AIR1963All602 . Each of these decisions has been made correctly, and I say so with all respects, on the facts of that case. But none of these decisions is of much help for the decision of the present case except to support the proposition that the court has a discretion to treat an application purporting to be under Section 17 as one under Section 14(2) and vice versa if the circumstances of the case so require and no question of limitation is involved.

46. Now coming to the facts of the present case, it is clear that the application made by the petitioner on 5-7-1961 was cap-tioned as one under Section 14 of the Act.

The court-fee that was paid by him was the proper court-fee prescribed for such an application under Article 18 of Schedule II to the Court Fees Act. The application was within the time prescribed by Article 178, assuming that time had started running under this Article from the date on which the counsel for the petitioner subscribed his signature to the award. It did not contain a specific prayer for issue of a direction to the arbitrator to file the award and only contained a prayer for making the award a rule of the Court which was the ultimate stage of the disposal of the award after it had been filed. This ultimate prayer implied in it a prayer for issue of a direction for filing of the award. The application was neither rejected in limine nor any objection taken by the other party to its competency. The Court issued a direction to the arbitrator and in obedience thereto he sent the award and the proceedings to the Court. This direction, even though not strictly in accordance with the procedure contemplated by Chapter II, cannot be said to be without jurisdiction. In this view of the matter, even if we altogether put out of consideration the routine application dated 3-1-1962 made by the petitioner, it can be presumed that the court of its own accord thought fit to issue a direction on 4-1-1962 to the arbitrator to file the award. It had the jurisdiction as well as the discretion to issue such a direction and the award filed in pursuance of such direction cannot but be deemed to have been validly filed within the meaning of Section 14(2) of the Act.

47. Tf. on the other hand, we think that this direction was issued by the court in pursuance of the routine application dated 3-1-1962. made by the petitioner for summoning the award and other connected papers from the arbitrator, this application has to be treated as a part of the original application dated 5-7-1961. In this routine application the petitioner had made explicit what was already implicit in his original application which was admittedly within time prescribed for making an application under Section 14(2).

48. Lastly, it has been argued bv the learned counsel for the petitioner that even if this routine application dated 3-1-1962 is taken in isolation divorced from the original application dated 5-7-1961, that too cannot be said to be barred by limitation on the date on which it was made. It is pointed out that in this case no notice in writing was ever sent by the arbitrator to the parties as contemplated by Section 14(1) of the Act and as such limitation under Article 178 did not start running. As stated earlier in this judgment, what happened in this case was that after the award had been made and signed by the arbitrator on 7-3-1961, it was attested by the counsel for the parties on 8-3-1961 as witnesses Nos. 1 and 2. The learned counsel for the opposite party contended mat the showing of the original award to the counsel for the parties and their subscribing their signatures to it on 8-3-1961 was sufficient compliance of the requirement of giving a notice in writing as contained in Section 14(1) of the Act.

In support of his contention he relied on a decision of the Supreme Court in : [1970]2SCR136 in which it was held that what will be considered a sufficient notice in writing of the making and signing of the award is a question of fact. It was further observed by their Lordships of the Supreme Court that the words 'notice in writing' cannot be limited to only a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed. In that case a copy of the award signed by the arbitrator was sent to the party concerned and it was held as sufficient notice in writing within the meaning of Section 14(1) of the Act. The learned counsel for the petitioner argued that even in this decision it had been held that something in writing should be given to the parties to constitute 'a notice in writing' within the meaning of Section 14(1) of the Act though it is immaterial in what form that writing is. In that case copies of the award were sent to the parties while in the present case nothing in writing was given to them, the emphasis being on the word 'given' within the meaning of Section 14(1) read with Section 42 of the Act.

If the award had been executed in triplicate and one copy had been given to each of the parties on 8-3-1961 when the counsel for the parties were required to subscribe their signatures to the original award as attesting witnesses, the requirement of Section 14(1) of the Act would have been fulfilled in view of the above decision of the Supreme Court, but without the physical delivery of anything in writing to the parties or their counsel, the mere subscription of the signatures of the counsel for the parties to the award does not fulfil the requirement of Section 14(1) of the Act so as to allow the time under Article 178 of the Limitation Act to run from that date.

49. In : AIR1955All573 it was held by a Division Bench of this Court vide head note (b) of the report at page 574:--

'The starting point of limitation under Article 178 as amended in 1940 is the date of the service of notice and not the date of the award, or the knowledge of the award.

If a party does not receive a notice of the award as prescribed by law (Section 14(2), Arbitration Act) he would evidently be within his rights to wait for the receipt of such a notice and if he finds after some time that no notice has been received by him, it would be open to him to make an application for the filing of the award even if no notice has been received, but in all such cases the application would not become barred by time unless it is presented more than 90 days after the receipt of a written notice of the award.'

50. Similar view was expressed by a Bench of the Nagpur High Court in Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajjee Poddar, AIR 1955 Nag 126. The head note (d) of this report runs as follows: --

'Under Article 178 time begins to run from the date of the service of the notice of the making of the award. The notice contemplated by Arbitration Act has to be served as required by Section 42 of the Act. Section 14 has to be complied with strictly and any other compliance thereof would not make limitation run under Article 178.' In that case arbitrators sent a notice to the parties that the award would be pronounced on 13-6-1944. The award was made on that date and signed in the presence of the parties who were asked to sign the order sheet in token of their knowledge. One of the parties applied on 13-11-1944 to the Court for directing the award to be filed and to pass a decree in terms of the award. On an objection by the other party that the application was time-barred it was held that though the award was made on 13-6-1944 in the presence of all the parties concerned, there was no notice in writing of the making and signing of the award and the signatures on the order sheets in token of their presence before the arbitrators, could not take the place of the notice contemplated by the Arbitration Act. Therefore time did not begin to run against the plaintiff and the application was not barred by time.

51. It may be stated that this decision was given by Hidayatullah, Actg. C. I. (as his Lordship then was) speaking for the Division Bench and the decision in : [1970]2SCR136 (Supra) was also given by him speaking for the Bench of the Supreme Court.

52. In this view of the matter, limitation cannot be said to have started running under Article 178 and as such even the routine application dated 3-1-1962 in which a specific prayer was made by the petitioner for summoning the award and other connected papers from the arbitrator, cannot be said to be barred by limitation. The view taken by the Learned Civil Judge is erroneous. He was not justified in rejecting the prayer of the petitioner that the award may be made a rule of the Court under Section 17 of the Act, which he was bound to do as a matter of course, after he had taken the prescribed steps on the award filed by the arbitrator in compliance with the direction issued by him, and had overruled the objections against the award filed by the opposite party.

53. It may also be stated that if thelearned Civil Judge had rejected the petitioner's application at the initial stage without summoning the award from the arbitrator, on the technical ground that it did not contain a prayer that the arbitrator be directed to file the award, the petitioner had an alternative remedy open to him. Assuming that a fresh application containing this specific prayer was barred by limitation, under Article 178 of the Limitation Act, all that he need have done was to persuade the arbitrator to file the award and if the arbitrator had filed the award, it would have been made a rule of the Court in due course after the objections of the other side had been overruled by the learned Civil Judge. By rejecting the prayer of the petitioner, at that late stage, after the award had already been filed by the arbitrator in obedience to the summons issued by the court for that purpose, the learned Civil Judge deprived the petitioner of that course also. So the order passed by him is manifestly unjust.

54. The revision, should, therefore, succeed.

BY COURT

55. We allow the revision, set aside the order of the lower court dated 30-7-1962 and grant a decree in favour of the petitioner in terms of the award, which will be made rule of the Court, with costs in the lower court and in this Court against the opposite party.


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