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L. Ganga Ram Vs. L. Radha Kishan - Court Judgment

LegalCrystal Citation
SubjectArbitration;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 2 of 1952
Judge
Reported inAIR1955P& H145
ActsArbitration Act, 1940 - Sections 14, 14(1), 14(2), 17, 38 and 44; Arbitration Rules - Rules 3 and 10; ;Limitation Act, 1908 - Schedule - Articles 120 and 178
AppellantL. Ganga Ram
RespondentL. Radha Kishan
Appellant Advocate N.L. Salooja, Adv.
Respondent Advocate D.R. Manchanda, Adv.
DispositionAppeal dismissed
Cases ReferredValchand Dipchand v. Gulab Laxman
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harnam singh, j.1. in order to appreciate the points that arise fox decision in first appeal from order no. 2 of 1959 the facts of the case may be set out in some detail.2. on 20-1-1943 ganga ram appellant and radha kishan respondent referred the dispute between them to the arbitration of shri girdhari lal by agreement, exhibit p. 1. on the following day shri girdhari lal made the award, exhibit p. 2, which was signed by both parties and presented for registration. in the office of the sub registrar radha kishan paid rs. 250/- to ganga ram in accordance with the conditions of the award, ex, p. 2. no further action seems to have been taken by the parties till 23-6-1944, when radha kishan instituted civil suit no. 313 of 1944 for declaration that by the award, exhibit p. 2, he had become.....
Judgment:

Harnam Singh, J.

1. In order to appreciate the points that arise fox decision in First Appeal from order No. 2 of 1959 the facts of the case may be set out in some detail.

2. On 20-1-1943 Ganga Ram appellant and Radha Kishan respondent referred the dispute between them to the arbitration of Shri Girdhari Lal by agreement, Exhibit P. 1. On the following day Shri Girdhari Lal made the award, Exhibit P. 2, which was signed by both parties and presented for registration. In the office of the Sub Registrar Radha Kishan paid Rs. 250/- to Ganga Ram in accordance with the conditions of the award, Ex, P. 2. No further action seems to have been taken by the parties till 23-6-1944, when Radha Kishan instituted Civil Suit No. 313 of 1944 for declaration that by the award, Exhibit P. 2, he had become owner of the property subject to a charge of the dafendant to the extent of Rs. 3,000/-. That suit was decreed by the Sub-Judge on 18-1-1947. On appeal from the decree passed in Civil Suit No. 319 of 1944 the Senior Sub-Judge dismissed the suit; leaving the parties to bear their own costs. In Regular Second Appeal No, 122 of 1948 the decision given by the Senior Sub-Judge was upheld on 30-5-1951.

3. During the pendency of Regular Second Appeal No. 122 of 1948 Radha Kishan made application under Section 17, Arbitration Act, 1940, hereinafter referred to as the Act, for decree in accordance with the award, Exhibit P. 2. In resisting that application Ganga Ram pleaded 'inter alia'

(1) that no application under Section 17 of the Act was competent;

(2) that the application was barred by time;

(3) that the application was barred by Section 11, Civil P.C. and

(4) that the agreement, Exhibit P. 1 was againstpublic policy and unenforceable.

4. on the pleadings of the parties the Court fixed tile following issues:

'1. Whether the application for filing the award as framed is incompetent?

2. Whether the agreement of reference is void and illegal on the basis of the objection taken by the respondent in the written statement.

3. Whether the award, Exhibit P. 2, is unenforceable in view of the grounds mentioned in the written statement?

4. How does the decision of the appellate Court, Exhibit P. 3, affect the present suit, the previous proceedings having taken place between the parties to this litigation?

5. Whether the application in question is tune-barred?

6. Relief.

7. Whether the objections against the award filed by the respondent were time-barred; if so, how does it affect the present petition?'

5. On issues Nos. 1 and 5 the Court has found the application under Section 17 of the Act to be competent and within time. On issues Nos. 2 and 3 the Court has found the agreement of reference Exhibit P. 1, to be legal and the award, Exhibit P. 2, to be enforceable. In deciding the case the Court has found that the judgment, Exhibit P. 3, does not in any way affect the application under Section 17 of the Act and that the objections to the validity of the award were within time. In the result, the Sub-Judge has made the award the rule of the Court ordering Ganga Ram respondent to pay the costs of the proceedings.

6. From the order passed by the Sub-Judge Ganga Ram has appealed under Section 39(1)(vi) of the Act.

7. In the memorandum of appeal it is said that in case it is held from the order passed by the Sub-Judge an appeal is not competent the memorandum of appeal may he treated as a petition for revision. In these proceedings it is common ground that the order under appeal is an Order refusing to set aside the award falling within Section 39(1)(vi) of the Act.

8. On 10-12-1953 First Appeal from Order No. 2 of 1952 was placed before me for disposal, when counsel for the parties suggested that inasmuch as from a judgment that might be given by one Judge of the Court in F. A. O. No, 2 of 1952 Letters Patent Appeal would be permitted as a matter of right the case should be put up before a Division Bench of the Court to avoid delay in the final disposal of the matter. Identical questions arose for decision in F. A. O. Nos. 33 and 38 of 1953.

9. In these proceedings the correctness of the findings given by the Court of first instance on issues Nos. 2, 3 and 7 cannot be seriously challenged. Neither particulars of undue influence and fraud were given in the written statement nor was evidence given to support the plea of undue influence and fraud. Ganga Ram accepted the award, Exhibit P. 2, on 21-1-1943 and pursuant to that award Ganga Ram was paid Rs. 250/- on the last mentioned date. In these circumstances I confirm the order under Appeal so far as that order deals with issues Nos. 2. 3, 4 and 7.

10. In arguments it was said that the Act does not empower a party to the arbitration to file the award, Rule 10 made under Section 44 of the Act being 'ultra vires', and that the application was, in any case, barred by time.

11. In referring the case to a Division Bench of the Court I indicated the questions specified here under to be the questions that arose in the case:

(1) Whether Rules framed by the High Court under Section 44 of the Act are inconsistent with the provisions of the Act?

(2) Whether Article 178, Limitation Act, 1908, provides periods of limitation for applications made by parties to the reference?

12. In order to decide the question of the competency of the application reference may be made to Rule 10 of the Rules made by the High Court under Section 44 of the Act. Rule 10 made by the High Court under section 44 of the Act provides:

'10 Filing of award--(a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the manner prescribed in Rule No. 3.

(b) When the award is filed by the arbitrator or umpire, he shall, together with the award, send to the Court any depositions and documents which have been taken and proved before him, and the opinion pronounced by the Court on the special case submitted by him, if any, in accordance with Section 14 of the Act, by forwarding the same under a sealed cover addressed to the Court. He shall also send together with the award a copy of the notice given to the parties concerned and affidavit of service of such notice and of attestation of his signature on the award,

(c) When the award is filed by any of the parties to the arbitration under Clause (a), the party may move the Court for directing the arbitrator to produce in Court such of the documents as were produced before him together with the record of the arbitration'.

Plainly, Rule 10(a) read with Rule 10(c) contemplates. that in fit cases parties to the arbitration may file the award in Court.

13. But it is said that Rule 10 made by the High Court within Section 44 of the Act is ultra vires.

14. Section 44 of the Act provides: '44.The High Court may make rules consistent with this Act as to--

(a) the filing of awards and all proceedings con-requent thereon or incidental thereto:

(b)..... .... .... ......... ......... .....

(c) .... ..... ...... ..... ............. .......

(d) .... .... ..... .:..... ...... .............

(e) generally, all proceedings in Court under is Act'.

From a perusal of Section 38 of the Act it is plain that a party to the arbitration agreement has a right to obtain possession of the award through the assistance of the Court under that section. Plainly, la person who has obtained possession of the award (through the assistance of the Court under Section 38 ' must have the right to file it in Court for otherwise he will have sought the assistance of the Court to no practical purpose whatever and the Court will have made an order which affords the applicant no material relief.' in this connection -- 'John B. Paes v. Soomar Umer', AIR 1943 Sind 33 (A), may be seen.

15. In 'Jai Kishen v. Ram Lal Gupta', AIR 1944 398 (B), Abdur Rahman J. found that Section 14, nation Act was not exhaustive and that an '--fication by a party for the enforcement of the award could be made in the absence of a clear provision in the Act to the contrary.

16. In 'Radha Kishen v. Madho Krishna', AIR -52 All 856 (C), Madho Kishan, who was one of parties to the agreement or reference, made anpplication under Section 17 for judgment in accordance b the conditions of the award. In those pro-dings the Civil Judge pronounced judgment in 'cordance with the award granting Madho Kishan tee for Rs. 8,018/8/-. In appeal the objection sed was that the application made by Madhoshan was barred by Article 178, Limitation Act. in dealing with the matter Bind Basni Prasad J. (Sankar Saran J. concurring) said:

'That is an Article which applies to applications made under Section 14 of the Act and not to those 'Under Section 17. The distinction between these two sections is that under Section 14 the arbitrator is called upon to file the award while under Section 17 the prayer is that the award may be made a rule of ' the Court and a judgment and decree may be pronounced accordingly. In the present case there is evidence to show that a copy of the award was given by the arbitrator to Madho Kishan. Indeed, it was filed by Madho Kishan along with his application under Section 17 read with Section 28 of the Act. The case reported in. AIR 1944 Lah 398 (B), is on all fours with the present case. Article 178 is not applicable to the present case.'

17. Finding as I do, that Section 38 of the Act given ' light to any of the parties to the arbitration to ob- possession of the award through the assistance the Court, I have no doubt that that party must are the right to file the award in Court. That (sic) the position of matters, Rule 10 made under (sic) 44 of the Act is not inconsistent with the pro-visions of the Act.

18. Mr. Nand Lal Salooja basing himself upon Article 178, Limitation Act, 1908, urges that the application by Radha Kishan was barred by time.

19. Articles 158 and 178, Limitation Act, 1908, provide periods of limitation for applications under tile Act.

20. Article 158 provides limitation for an application under the Act to set aside an award or to get an award remitted for reconsideration. That Article does not govern an application for the filing in Court of an award.

21. Article 178, Limitation Act, 1908 provides:

'178. Under the Arbi- Ninety days. The date of servicetraction Act, 1940, of the notice of for the filing in the making of Court of an award. an award.'

22. Section 14(1) of the Act provides 'inter aha* that when the arbitrators have made their award they shall sign it and give 'notice in writing to the parties of the making of the award'.

23. Section 14(2) of the Act provides 'inter alia' that the arbitrator shall at the request of any pary to the arbitration agreement or if so directed by the Court cause the award to be filed in Court.

24. From an examination of Article 178, Limitation Act, 1908, it is plain that that Article governs cases falling within S, 14(1) of the Act where 'notice in writing of the making of the award is to be given'. In the present case notice in writing to the parties of the making of the award was not given. That the parties signed the award does not bring the case within Section 14(1) of the Act.

25. In a case falling within Section 14(2) of the Act the arbitrator is called upon to file the award while in a case falling within Rule 10 the award may be filed by any of the parties to the arbitration in the manner prescribed in Rule 3.

26. In AIR 1952 All 856 (C) Bind Basni Prasad J. (Shankar Saran J. concurring) found that Article 178, Limitation Act, does not govern period of limitation for an application for decree in accordance with the award when the party to the award files the award in Court with that application.

27. From the preamble to the Indian Limitation Act, 1908, it is clear that the Act does not provide periods of limitation for all applications. That being so, the present application may be an application for which no period of limitation is prescribed. If it he so, then it is for others than the Court to remedy the defect.

28. In -- 'Sha Mulchand and Co., Ltd. v. Jawa-har Mills Ltd.', Salem, AIR 1953 SC 98 (D), the question that came up for consideration was the period of limitation for applications under Section 38, Companies Act, 1913. In delivering the judgment of their Lordships of the Supreme Court Das J. said 'If Article 181 does not apply then the only Article that can apply by analogy is Article 120 and the application is also within time.'

29. In my judgment, Article 178, Limitation Act, has no application to applications for the enforcement of the award made by the parties to the arbi-tration agreement and there being no period o limitation prescribed for such an application, the application made by Radha Kishan must be regarded to be within time.

30. For the foregoing reasons First Appeal from Order No. 2 of 1952 fails and is dismissed.

31. No orders as to costs in appeal. KAPUR J.:

32. This is an appeal brought by the original Respondent Ganga Ram against an order passed by a learned Subordinate Judge of Amritsar passing a judgment in accordance with an award made by Girdhari Lal in favour of Radha Kishan, the original applicant.

33. One Ram Chand died in 1941 and a curator of his property was appointed by the District Judge, and amongst his property was found a will in favour of Ganga Ham. The question of the validity of the will was agitated in the Probate Court and ultimately taken to the High Court of Lahore where a Letters Patent Bench decided in favour of Ganga Ram on 30-5-1944.

34. Ganga Ram first entered into an agreement with one Kanahaya Lal to finance the litigation arising out of the will and when that fell through he entered into a similar agreement with one Madan Lal and as that also fell through an agreement was entered into with Radha Kishan by which Radha Kishan was to finance litigation and was to get a seven-anna share out of the property and Ganga Ram was to have the other nine-anna share.

35. Some dispute arose in regard to this agreement and a reference to arbitration was made to Girdhari Lal on 20-1-1943 and an award given by this arbitrator on 21-1-1943 to which both the parties agreed. Ganga Ram signed it in Urdu stating that he read the award. It was on the same day registered and in pursuance of the award Rs. 250/- were paid to Ganga Ram in the presence of the Registrar. In order to enforce this award Radha Kishan brought a suit on 23-6-1944 which was decreed, but the decree was reversed on appeal and this Court on 30-5-1951 upheld the decree of the appellate Court and this is reported as Radha Kishan v. Ganga Ram', AIR 1951 Punj 121 (E).

36. In the meanwhile on 2-2-1946 Radha Kishan filed an application under Section 17, Arbitration Act, 'for making the award the rule of the Court and passing a decree in accordance therewith.'

37. The defence was that the respondent Ganga Ram did not execute the agreement to refer 'under a free will and was extortionate, unconscionable, illegal, champartous, unenforceable and against public policy': that the arbitrator was guilty of misconduct: that there was no dispute between the parties and the reference to arbitration and the award were merely a sham transaction: that the application was barred by time. In his additional pleas it was pleaded that Radha Kishan took advantage of the position in which Ganga Ram was and paid Rs. 250/-and got a 'bogus agreement' executed and that the arbitration agreement and the award were written On the same day. Following issues were framed.

'1. Whether the application for filing the award as framed is incompetent?

2. Whether the agreement of reference is void and illegal on account of the basis of the objections taken by the respondent in the written statement?

3. Whether the award Exhibit P. 2, is unenforceable in view of the grounds mentioned in the written statement?

4. How does the decision of the appellate Court Exhibit P. 3, affect the present suit, the previous proceedings having taken place between the parties to this litigation?

5. Whether the application in question is time barred?

6. Relief.'

38. The trial Court on all the issues held that the application was not under Section 14, Arbitration Act, (sic) under Section 17 and was, therefore, competent, and (sic) it was not barred by limitation, and he rej the pleas of the original respondent against the legality of the arbitration agreement and against the enforceability and legality of the award, Ganga Ram, the unsuccessful party, came in appeal to this Court and the case was heard 'ex parte' by Khosla J., who held that the application was under Section 14 and that, therefore, Article 178, Limitation Act, was applicabler and it was consequently barred by time, and he, therefore, set aside the order of the trial Court and dismissed the application of Radha Kishan. This is -- 'Ganga Ram v. Radha Kishan', AIR 1952 Punj 350 (F).

39. Radha Kishan then made an application for setting aside the ex parte order which was set aside on 16-6-1953 by Khosla J. The matter was then placed before Harnam Singh J. who has referred this case to a Division Bench by his order (sic) 10-12-1953. He was of the opinion that amongst others the following two questions arise for decission:

'1. Whether the rules framed by the High Court under Section 44, Arbitration Act, 1940, are uncomment with the provisions of the Act? And

2. Whether Article 178, Limitation Act, 1908, ifvides period of limitation for applications madeby parties to the reference?'

40. In order to decide as to whether the application is competent or not reference may be made' to certain sections of the Arbitration Act. Section 14' deals with the signing and filing of the awards and it runs as follows:

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

(2) The Arbitrators or umpire shall, at the request of any party to the arbitration agreementor any person claiming under such party or if sodirected by the Court and upon payment of thefees and charges due in respect of the arbitrationand award and of the costs and charges of film',the award, cause the award or a signed copy of ittogether with any depositions and documentwinch may have been taken and proved beforethem, to be filed in Court, and the Court shaftthereupon give notice to the parties of the filingof the award.

(3) .... ..... .... ..... ..... .....'.

41. Section 17 provides that when a Court does not see any reason to set aside the award or' remit it and the time for making an application to set aside the award has expired or the application has been refused, the Court shall proceed to pronounce judgment according to the award and f decree shall thereupon follow :

42. As I read Section 14 the first sub-section pro, vides that after the arbitrator has made his awar he shall sign it and shall give a notice in writing of the parties of the making of the award and of the amount of fees to be paid in respect of the arbitration and award. Thus, this is a step which the arbitrator takes after he has made and signed the ward, and in such a case the notice given by him to be in writing.

43. Section 14(2) provides that the arbitrator I either at the request of one of the parties to the arbitration agreement or on the direction given by the Court and after payment of fees etc., shall cause the award together with other documents to be filed in Court. This is a second step which arises after notice has been given by the arbitrator to the parties of the making and signing of the award and it is then for the parties to get the award filed in Court by requesting the arbitrator to do so or by getting the Court to make such an order.

44. Section 17 by itself does not contemplate any application being made.

45. Under Section 32 no suit can be brought to challenge the existence, effect or validity of an arbitration agreement or an award. Section 33 of the Act provides for contesting the existence or validity of an arbitration agreement or an award but it makes no provision for enforcing an award.

46. Under Section 41, Arbitration' Act, the provisions of the Code of Civil Procedure are made applicable subject to the provisions of the Act and of the Rules made thereunder. Section 44 of the Act gives to the High Court the power to make rules in regard to certain matters--

'(a) the filing of awards and all proceedings consequent thereon or incidental thereto.'

47. Under Section 44 rules have been made by this Court. Rule 3 deals with the mode of application and provides that applications shall be made to the proper Court and shall be made by petition and presented in the manner provided for plaints .......Rule 10 is a provision for filing of the awards and is as under--

'10. Filing of award-- (a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the-manner prescribed in Rule 3.

(b) When the award is filed by the arbitrator 'or umpire, he shall, together with the award, send to the Court any depositions and documents which have been taken and proved before him, and the opinion pronounced by the Court on the special case submitted by him, if any, in accordance with Section 14 of the Act, by forwarding the same under a sealed cover addressed to the Court. He shall also send together with the award a copy of the notice given to the parties concerned and affidavit of service of such notice and of attestation of his signature on the award.

(c) When the award is filed by any of the parties to the arbitration under Clause (a), the party may move the Court for directing the arbitrator to produce in original such of the documents as were produced before him together with the record of the arbitration.'

Rule 12 is--

'12. 'Limitation for application for Judgment on Award' -- An application for judgment in terms of an award shall not be made until after the ex-piration of 30 days from the date of service of the notice of filing the award.'

48. It was contended by the appellant that the only method by which under the Arbitration Act an application can be made for the enforcement of the award is Section 14 and that there is no other method which is available to any party for the purpose of getting a judgment and decree in accordance with the award, and reliance was placed on -- 'Kumbha Mawji v. Dominion of India', AIR 1953 SC 313 (G). In that case two awards were made by the umpire who made over the two awards in original to each of the parties and the respondent filed an application under Section 14(2), Arbitration Act, in the Subordinate Judge's Court at Gauhati in Assam praying that the umpire be directed to file both the awards in Court. On this a notice was issued to the umpire who sent a letter to the Subordinate Judge along with the copies of the awards. The respondent then filed the awards which had been handed over to him by the umpire and the matter was proceeded with in the Court of the Subordinate Judge by issue of further notices and filing of objections.

49. A week after the filing of the application by the respondent in the Gauhati Court the appellant made an application to the Calcutta High Court for filing of the awards of the umpire along with the original awards duly stamped which had been handed over to them by the umpire. In the Calcutta High Court it was held that there had been no due filing of the awards under Section 14(2), Arbitration Act, inasmuch as the awards which were claimed to have been duty filed were in fact not filed by the umpire, nor was it shown that they were filed under his authority, and when the matter was taken to the Supreme Court it was held that Section 14(2) implies that when an award is in fact filed in Court by a party he should have the authority of the umpire for doing so, and where awards are handed over to a party it cannot be assumed that the mere handing over of the awards necessarily implies the authority of the umpire to file the same in Court on his behalf. That authority has to be specifically alleged and proved. It was also held that the actual filing by an arbitrator or an umpire is not essential. It is sufficient if he forwards the award to the Court by post.

50. Now this case dealt with applications under Section 14(2), Arbitration Act, which specifically provides for the filing of the award by the arbitrator either at the instance of a party or under the directions of the Court. It is not a section which deals with the right of a party to file an application for the enforcement of an award. It cannot be said that where the award is handed over to a party he cannot make an application 'dehors' Section 14 and that is obvious from a perusal of the other sections of the Arbitration Act. Under Section 33 a suit on an award does not lie. Under Section 33 an application can b' made for challenging the existence of an arbitration agreement or an award, and under Rule 10 of the Rules made by this Court which I have quoted above a party as also an arbitrator or an umpire can cause an award to be filed in Court in the manner prescribed in Rule 3.

51. There are decided cases which have dealt with the filing of an application by a party for the enforcement of an award.

52. In AIR 1943 Sind 33 (A), three distinct ways of filing an award in Court were indicated-- (1) by an arbitrator under Section 14(2) at the request of a party; (2) by an arbitrator directed by the Court to cause an award to be filed in Court; and the third manner was gathered by the Court from the provisions of Section 38 of the Act. Dealing with this Lobo J. said at p. 34--

'Now it follows that a person who has obtained possession of an award through the assistance of the Court under Section 38 must have the right to file it in Court, Otherwise, he will have sought the assistance of the Court to no practical purpose whatever and the Court will have made an order which affords the applicant no material relief'

and to such an application it was held that Article 178 is not applicable.

53. Abdur Hahman J., in AIR 1944 Lab 398 (B), held that Section 14, Arbitration Act, is not exhaustive and that an application by a party for enforcement of the award could DC made in the absence of a clear provision in the Act to the contrary, and the learned Judge was also of the opinion that the petitioner had asked for the award to be made a rule of the Court or. in other words for a judgment and a decree to be passed in accordance with die award, and that was provided in Section 17, Arbitration Act. It is not necessary for me to say anything in regard to Section 17, Arbitration Act. In Allahabad the opinion of the Lahore High Court was accepted by a Bench decision in AIR 1952 All 856 (C), and it was said--

'The distinction between these two sections is that under Section 14 the arbitrator is called upon to file the award while under Section 17 the prayer is that the award may be made a rule of the Court and a judgment and decree may be pronounced accordingly'.

54. A review of these cases shows that applications for enforcement of the awards are not confined to Section 14 alone but such applications are possible even outside that section, because Section 14 deals with filing of the awards by an arbitrator or an umpire and this section does not cover an application made by a party for the enforcement of the award.

55. Reference may now be made to -- 'Gulam- ali Abdul Hussein & Co. v, Vishwambharlal Ruiya', AIR 1949 Rom 158 (II), and it was there held that as under Section 32 all suits with regard to the existence, effect or validity of an arbitration agreement arebarred and the Legislature cannot conceivably deal with all possible applications that may arise with regard to matters which are barred under Section 32, the right to make an application to establish the existence or validity o an arbitration agreement, suit with regard to which is barred under Section 32, can be entertained by the Court under the Arbitration Act. Chagla C. J.observed at p. 160-

'It is perfectly clear that when the Legislature enacted Section 32 and barred all suits with regard to the existence, effect or validity of an arbitration agreement the object of the Legislature was that all questions with regard to these matters should be dealt with under the arbitration Act and not by substantive suits'.

Thus, the sections of the Arbitration Act and the decided cases show that:

(1) when an award is to be filed by an arbitrator at the instance of the party or on the direction of the Court Section 14(2) will be applicable; and

(2) when an award is sought to be enforced by a party Section 14(2) is not applicable and the this section is not exhaustive and the Act (sic) contemplate applications outside Section 14(2).

I would, therefore, respectfully disagreeing with the view taken by Khosla J. in AIR 1952 Punj 350 (F), hold that the application which was made by Radha Kishan on 2-2-1948 is not barred by Section 14(2) and is competent under the provisions of the Arbitration Act read with the rules made by this Court.

56. The question then arises as to what Article of the Indian Limitation Act would be applicable to such applications. Article 178 as amended by Act 10 of 1940 is as follows--

'178. Under the Arbi- Ninety days. The date of service tration Act, 1940, of the notice to-

for the filing in the making of

Court of an award. the award.'

Now, this provides the period of limitation forthe filing in Court of an award for which the periodis ninety days from the date of notice of making theaward. This Article in my opinion refers to Section 14(1)because it is under that section that a notice is required to be given to the parties of the makingof the award, and under that section it has to bein writing, In the present case there was no noticein writing of the making of the award. Therefore,the strict provisions of this Article cannot be appli-cable.

57. It was submitted by Mr. Salooja that in the-present case there was something more than the notice of making the award in writing, because the parties signed the awards and got them registered. Whatever might have happened in this case, it is still not covered by the 'terminus a quo' as given' in Article 178, Limitation Act, and in my opinion that Article is not applicable. Reliance was placed by Mr. Salooja on a Bench decision of this Court in --'Had Chand v. Lachman Das', AIR 1948 EP 11 (I), but that was a case under Section 14(2) where no notice., in writing is necessary and the Court had to give-notice to the parties. The same was the Case in --'Imam Din V. Allah Rakha', AIR 1942 Lah 190 (J). It will be noticed that in applications which come under Section 14(2) notice is to be given by the Court for the purpose of inviting objections, if any, and to these Article 158, Limitation Act, is applicable where the 'terminus a quo' is the date of service of notice of filing of the award. It is not necessary to deal with the other two cases relied upon by Mr. Salooja, -- 'Saroj Bala Bose v. Jatindra Nath Bose', AIR 1927 Cal 619 (K), which again deals with the notice nf filing of the award, and -- 'Valchand Dipchand v. Gulab Laxman', AIR 1926 Bom 319 (L), which are cases under Sch II, Civil P. C., which has not been repealed and are not applicable to cases of written notice by the arbitrator. In my opinion, therefore, Article 178, Limitation Act, is not applicable,

58. The question then arises which is the Article which was applicable' to a case of this kind. The preamble to the Indian Arbitration Act shows that the Act applies to suits, apoeals and certain applications & not to all applications. It may be that thisis a case where no period of limitation is prescribed, and there is no provision in the Limitation Act, or it may be covered by the rule laid down by the Supreme Court in AIR 1953 SG 98 (D), where it was held that Article 181 applies to applications under the Code of Civil Procedure, and if an application under the Companies Act is not governed by Article 181 then Article 120 would he applicable. Although this Article applies to suits the Supreme Court has applied it to applications under the Companies Act and it would by analogy be applicable to the present case. I am, therefore, of the opinion that the application made by Radha Kishan was notbarred by time when it was made.

59. The next submission raised by the learned Advocate was that the arbitration agreement was as a result of undue influence and fraud and the appellant was not a free agent when he signed it. But no particulars of this undue influence or of fraud as required by Order 6, Rule 4, Civil P. C., were given in the objections raised by Ganga Ram excepting that he was unable to raise money for the fighting of his litigation and had to go to Radha Kishan for the purpose. Apart from the fact that no particulars are given, I cannot find any evidence to support the plea of undue influence or fraud.

60. The next question raised as to the validity of the award and its enforceability. This award was accepted and signed by the appellant after reading it. No explanation has been given as to why he accepted the award and there is nothing indicated in the evidence to show that the arbitrator was guilty of any kind of misconduct, nor is it shownas to why the award is unenforceable. I am or'the opinion, therefore, that the Court below hasrightly held that the appellant has not been ableto show that the award is either illegal or unen-forceable. The appeal of Ganga Ram is thereforedismissed.


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