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G. Chokkappa Chetty Vs. M. Santhubava Rowther - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad926; (1940)2MLJ481
AppellantG. Chokkappa Chetty
RespondentM. Santhubava Rowther
Cases ReferredHarbhajan Singh v. Mewa Singh A.I.R.
Excerpt:
- - 300 was any longer good law......to arbitration. the award was not made on the date prescribed, but extensions were asked for from time to time. the award was actually written on 26th august, 1936; but the order of court allowing the last extension of time was not passed until 27th august, 1936, although the application had been filed in court some days before the award' was made. the principal question argued in this court and in the court below was whether the court became functus officio-in this matter on the day the award was made and was income petent to pass the order on 27th august, 1936, extending the time.2. it seems to me that the order passed by a court on an application must refer back to the date on which the application is put in; for it is the state of affairs on that date that the court has to consider.....
Judgment:

Horwill, J.

1. The dispute between the petitioner and the respondent was referred to arbitration. The award was not made on the date prescribed, but extensions were asked for from time to time. The award was actually written on 26th August, 1936; but the order of Court allowing the last extension of time was not passed until 27th August, 1936, although the application had been filed in Court some days before the award' was made. The principal question argued in this Court and in the Court below was whether the Court became functus officio-in this matter on the day the award was made and was income petent to pass the order on 27th August, 1936, extending the time.

2. It seems to me that the order passed by a Court on an application must refer back to the date on which the application is put in; for it is the state of affairs on that date that the Court has to consider in making an order. If on the date of the application the Court had jurisdiction to extend the time, I cannot see how it lost jurisdiction because in the interval between the filing of the petition and the passing of orders the award is actually made. There is nothing in Schedule II of the Code of Civil Procedure which says so, and no decision has been pointed out to me in which a Court has gone so far as to say that a Court loses jurisdiction to extend the time when once the award has been made. Raja Har Narain Singh v. Chaudrain Bhagwant Kuar (1891) 18 I.A. 55 : I.L.R. 13 All. 300 is a Privy Council decision upon which much reliance has been placed by the earned Counsel for the petitioner. The facts of that case do not resemble those of the present nor was an order there made under the same provision of law as here; but Mr. Sampath Aiyanga'r relies on a few words contained in that judgment without reference to the facts of> that particular case. There, the award was actually made at a time beyond the period to which the date had been extended, and their Lordships remarked that when once an award was made and delivered, the power of the Court under Section 514 was spent. The reason they gave was that

that contention (that the award is not valid) has to support it the express statutory enactment that no award shall be valid unless made within the period allowed by the Court.

3. Section 521 of the old Code did in fact say:

No award shall be valid unless made within the period allowed by Court.

4. There is no such clause in the present Act and,< as has already been remarked, in the case before their Lordships the award was not made even within the extended time. In Annamalai Chettiar v. Annamalai Chettiar : AIR1933Mad697 , Curgenven, J., doubted whether Raja Har Narain Singh v. Chaudrain Bhagwant Kuar (1891) 18 I.A. 55 : I.L.R. 13 All. 300 was any longer good law. In Gopalji Kallianji v. Chhaganlal Vithalji I.L.R.(1920)Bom. 1071, where an application was put in by consent for extending the time for making the award, it was held that the date of the application must be referred back to the date when it was filed in the office of the Prothonotary and not to the date when it was signed by him. That case is not similar to the present one; but it lays down the principle that an application dates back to the day of its presentation which has, I think, a wide application. Moreover, if the contention of the earned Counsel for the petitioner is correct, then the arbitrators were functus officio on the date on which they should have made the award expired, and they had no power to continue the arbitration proceedings while the application was pending. If that were so, then there was no valid award made at all. It would also follow from this proposition that applications for extension would become largely fruitless because the applicants could do nothing before the applications were granted and so proceedings would drag on indefinitely. Needless to say, there is no authority, either for the 'original contention of Mr. Sampath Aiyangar or for any of the principles that have been deducted from it. It seems to me that the arbitrators had jurisdiction to continue the arbitration subject to the result of their application to extend the time.

5. It has been argued on behalf of the respondent, on the authority of Annamalai Chettiar v. Annamalai Chettiar : AIR1933Mad697 , that a revisional Court has no jurisdiction to interfere with an award passed in these circumstances; but I do not find that Annamalai Chettiar v. Annamalai Chettiar : AIR1933Mad697 , goes so far. 'There were special circumstances there which led the learned Judge to hold that the order of the lower Court filing the award was right and could not be interfered with in revision, and that the only remedy of the aggrieved person was to take separate proceedings, to have the award set aside.

6. Jetha Lal Laxmi Chand Shah v. Amrita Lal Ojha I.L.R. (1938) 2 Cal. 482 is a very important decision on the present paragraph 8 of Schedule XI; for it holds that the section is so widely worded that an application for extension of time put in even after the award is made can be granted; and that if it is granted the award can be filed. The wording of paragraph 8 is certainly wide enough to carry this meaning and with due respect I agree. I find no reason in the present provisions relating to arbitration for supposing that once an award is made the Court ceases to have jurisdiction to extend the time. The old Code did contain such a provision; but that is absent in the present Act.

7. The learned District Munsif has supported his finding on another ground; and that was that one must not suppose that because the award was written on 26th August, 1936, it was necessarily made on that day. Arumugam Chetti v. Arunachalam Chetti I.L.R.(1898)Mad. 22, pointed out that filing is not making - filing being a mere administrative act; but it was held in Harbhajan Singh v. Mewa Singh A.I.R. 1982 Lah. 753, that an award has to be pronounced before it can be said to be made and that filing it in the Court is one of the ways of pronouncing it and that if the pronouncing of the award did not take place until the award 'was filed into Court, then the date of the making of the award was the date of the filing of it. It is unnecessary for me to consider whether this decision is correct; but it does seem to be true that the mere writing of an award would not amount to the making of the award. There can be no finality in the writing of an award and if the arbitrators choose to tear it up and write another, I can see no reason why they should not do so. It may however be argued that the signing of the award gives legal' effect to it, and if so, then the award was made on the 26th, the date of writing it.

8. The petition fails and is dismissed with costs.


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