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Chhotu Khan and anr. Vs. Jeewan Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 203/1974
Judge
Reported inAIR1984Raj110
ActsArbitration Act, 1940 - Sections 14(1); Limitation Act, 1963 - Schedule - Article 119
AppellantChhotu Khan and anr.
RespondentJeewan Khan and ors.
Appellant Advocate Babulal Purohit, Adv.
Respondent Advocate Dalpat Rai, Adv.
DispositionAppeal allowed
Cases ReferredRatnawa v. Gurushiddappa
Excerpt:
.....of the appellants about the making of the award but the mere knowledge does not amount to a notice in writing as envisaged by section 14(1) of the arbitration act. i am, therefore, clearly of the opinion that the learned district judge did not take the correct view of the law and had not properly applied the authorities relied upon by him. which as stated above, are clearly distinguishable from the present case. 7. i would like to mention here that section 14(1) speaks of giving a notice in writing. when something is to be given in writing, it clearly means that the writing is to be handed over to the party concerned. i shall do no better than referring to the district cooperative development federation ltd. it must, to be sufficient, be in writing and must intimate quite clearly..........let me quote the words of the hon'ble supreme court itself '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. in fact the two letters of may 5 and may 16 to which we have referred quite clearly show that the company knew full well that the arbitrator had riven the award, made it and signed it. in these circumstances to insist upon a letter which perhaps was also sent (though there is some doubt about it) is to refine the law beyond the legitimate requirements.' therefore, it is clear that the giving of the copy of the award to the parties was considered to be a notice in writing, and this was further corroborated by certain letters of the party.....
Judgment:

K.S. Lodha, J.

1. The dispute in this case lies in a very narrow compass. The parties had referred their dispute to the arbitrators. The arbitrators after hearing the parties, made their award, pronounced and signed it in the presence of the partres on 11-2-1973 and also obtained the signatures of the parties on the award. Thereafter a notice of the making and signing of the award Under Section 14(1) of the Arbitration Act was issued by the arbitrators on 19-5-1973 and it was received by Chhptu Khan and others, the present appellants on 25-5-1973. On 2-7-1973. Chhotu Khan and others filed an application before the court of the learned District Judge. Bikaner praying that the arbitrators may be directed' to file the award and a decree in terms of the award may be passed with costs. This application was opposed by the respondents-non-applicants Jeewan Khan and others on the ground that it was barred by time under Article 119 of the Limitation Act. The learned District Judge after hearing the parties, accepted this objection and rejected the appellants' application as being barred by time by his order dated 22-7-1974. It is against this order that the present appeal has ' been filed by Chhotu Khan and others.

2. I have heard the learned counsel for the parties and have gone through the record.

3. There is no dispute about the facts. The only question in dispute is the starting point of limitation. According to the learned counsel for the appellants, the starting point of limitation under Article 119 of the Indian Arbitration Act was the date of the service of the notice Under Section 14(1) of the Arbitration Act i.e. 25-5-73. If this contention is accepted, the application is admittedly in time. On the other hand, the contention of the learned counsel for the respondents is that the starting point of limitation was 11-2-1973 itself when the award was signed by the parties after it had been made and signed by the arbitrators and it amounted to a notice contemplated by Section 14(1) of the Arbitration Act. If this contention is accepted, then the application was admittedly barred by time.

4. I have given my careful consideration to the rival contentions. In arriving at the finding that the application is barred by time. The, learned District Judge has placed reliance upon Nilkantha v. Kashinath (AIR 1962 SC 666). Parasramka Commercial Co. Ltd. v. Union of India (AIR 1970 SC 1654) and K. Moinuddin v. U. Veeraiah (AIR 1971 Andh Pra 318V Therefore, let me first examine the question whether according to these authorities, the starting point of limitation in the present case would have been 11-2-1973 as held bv the learned District Judge- Before I deal with these authorities, it may be mentioned that Article 119 of the Limitation Act provides thirty days time from the date of the service of the notice of the making of the award for the filing in the court for an awardi The notice of making of the award clearly refers to the notice envisaged by Section 14(1) of the Indian Arbitration Act. That section reads '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.' (The underlining is mine.) Therefore, according to this section, the notice must be in writing. The authorities relied upon by the learned District Judge also have found that the notice has to be in writing. The relevant observations of their Lordships of the Supreme Court in Parasramka Commercial Co. Ltd.'s case (AIR 1970 SC 1654) (supra) are as under (at p. 1656):

'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.'

4-A. Therefore, even according to the the Hon'ble Supreme Court, the notice Under Section 4(1) has to be in writing. Of course, what would amount to a notice in writing may differ from case to case. In the caw before their Lordships. the parties were given a ropy of the award made and signed by the arbitrators and this giving of the copy of the award was deemed to be a notice in writing. To be specific, let me quote the words of the Hon'ble Supreme Court itself '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. In fact the two letters of May 5 and May 16 to which we have referred quite clearly show that the company knew full well that the arbitrator had Riven the award, made it and signed it. In these circumstances to insist upon a letter which perhaps was also sent (though there is some doubt about it) is to refine the law beyond the legitimate requirements.' Therefore, it is clear that the giving of the copy of the award to the parties was considered to be a notice in writing, and this was further corroborated by certain letters of the party concerned. The learned District Judge while relying upon this authority probably failed to notice this significant aspect of the matter. In the present case, the copy of the award had not been handed over to the parties, merely their signatures were obtained after the award was made. This at the best can amount to knowledge of the appellants about the making of the award but the mere knowledge does not amount to a notice in writing as envisaged by Section 14(1) of the Arbitration Act.

5. K. Moinuddin's case (AIR 1971 Andh Pra 3181 (suora) relied upon by the learned District Judge is again a case where copy of the award had been given to the parties at the time the award was made and signed by the arbitrators and, therefore, this also is quite distinguishable from the present case.

6. Nilkantha's case (AIR 1962 SC 6661 (supra) is not a case Under Section 14(1) olfthe Arbitration Act but is a case Under Section 14(2) of that Act. It may be worthwhile to mention here that whereas Section 14(1) speaks of a notice in writing, Section 14(2) only speaks of a notice and not a notice in writing. I am, therefore, clearly of the opinion that the learned District Judge did not take the correct view of the law and had not properly applied the authorities relied upon by him. which as stated above, are clearly distinguishable from the present case.

7. I would like to mention here that Section 14(1) speaks of giving a notice in writing. When something is to be given in writing, it clearly means that the writing is to be handed over to the party concerned. Therefore, the mere signing by the party on the award without a copy being delivered to him cannot amount to the giving of a notice in writing.

In this connection. I shall do no better than referring to The District Cooperative Development Federation Ltd. v. Ram Samuih fAIR 1973 All 476), which is a decision by a Full Bench of that Court. In this case. Parasramka Commercial Co. Ltd.'s case (AIR 1970 SC 1654) (supra) had been referred to. One of the three Judges, namely. Shri K. B. Srivastava J. observed as under (at PP. 482-83):--

'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 the, 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 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, (AIR 1970 SC 1654) 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.'

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

8. Then the other learned Judge Shri Jagmohan Lal J. referring to the aforesaid Supreme Court case observed as under:--

'In that case, copies of the award were cent 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.'

He further referred to a decision of the Nagpur High Court in Chouthmal 'Jivraiiee Poddar v. Ramchandra Jivraj-' jce Poddar (AIR 1955 Nag 126) by Honable Hidayatullah, Acting C. J., as he then was, and observed as under :--

'The award was made on that date find signed in the presence of the parties who were asked to sign the order sheet in taken 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.'

He also pointed out that the Supreme Court decision in parasmmka Commercial Co. Ltd's case (AIR 1970 SC 1654) (supra) has also been given by Honble Justice Hidayatullah himself. He probably meant to say that reading the two decisions of the same Hon'ble Judge, together the distinction in the two cases can clearly be brought out. I am . in complete respectful agreement with the view of the Full Bench of the Allahabad High Court. It would be unnecessary for me in these circumstances to refer to the earlier decisions of the other High Courts, namely, P. Ramulu v. N. Appalaswami (AIR 1957 Andh Pra 11), Ratnawa v. Gurushiddappa (AIR 1962 Mys 135) etc. in detail.

9. From what has been stated above, the inevitable conclusion is that the mere signing by the parties on the award after it has been made and signed by the arbitrator does not amount to a notice in writing envisaged by Section 14(1) of the Arbitration Act and the limitation Under Section 119 of the Limitation Act would not start running from the date of the signing of the award in this manner but would run only when a notice in writing is served upon the party as contemplated by Section 14(1) of the Arbitration Act. may be by delivery of the copy of the award. In the present case, such a notice was served on 25-5-1973 and, from, that date, as already stated above, the application for the filing of the award in court, was within time. The learned District Judge was, therefore, wrong in rejecting that application as barred by time.

10. I therefore, allow this appeal, set aside the order of the learned District Judge, Bikaner, dated 22-7-1974 and send the case back to that court for being proceeded with further in accordance with law. In the facts and circumstances of the case, I shall not make any order as to coats. The parties are directed to appear before that court on 27-9-1083.


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