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State of West Bengal Vs. Mondal and Co. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberAward Case No. 190 of 1982
Judge
Reported inAIR1984Cal14
ActsArbitration Act, 1940 - Sections 14(2) and 33; ;Limitation Act, 1963 - Schedule - Article 119
AppellantState of West Bengal
RespondentMondal and Co.
Appellant AdvocateMoitra, Adv.
Respondent AdvocatePinaki Ghose, Adv.
DispositionApplication dismissed
Excerpt:
- .....the supreme court will apply in full force where the petitioner had knowledge of the filing of the award informally or constructively from any other source as well. if the legislature intended that the notice must come from court, it would have said so explicitly. the word 'court' does not find any place in this article. the law is very simple on this point where the petitioner has a notice under section 14(2) of the arbitration act from court then time will start running from the date of receipt of such notice. but if the applicant has informal or constructive notice of filing of the award from any other source prior to the receipt of section 14(2) notice or without receipt of notice under the arbitration act, then limitation will start from the date of such informal notice.8. in the.....
Judgment:
ORDER

Pratibha Bonnerjea, J.

1. This is an application by the State of West Bengal for setting aside the award dated 22-4-32. In the petition it is alleged that the petitioner received the notice under Section 14(2) of the Arbitration Act on 13-8-82 informing the petitioner that the award had been filed on 16-7-80. In para. 12 of the Affidavit-in--Opposition the respondent alleged that the petitioner had notice of filing of the award by respondent's letter dated 16-7-82 which was received by the petitioner's Executive Engineer on 17-7-82. In reply dated 30-7-82 the petitioner informed the respondent , that the petitioner was taking steps for making payment under the award. According to the respondent the present application was taken out on 13-9-82, clearly beyond 30 days from 17-7-82 and the application was barred by limitation. In the Affidavit-in-reply the petitioner did not dispute the receipt of the respondent's letter dated 16-7-82 on 17-7-82. This letter dated 16-7-82 and the petitioner's reply dated 30-7-82 are Annexures 'C' and 'D' to the Affidavit-in-Opposition.

2. The counsel for the petitioner submits that under Section 14(2) of the Arbitration Act it is the duty of the Court to give notice of filing of the award. He, however, concedes that for the purpose of limitation it is not necessary that a formal notice under Section 14(2) of the Arbitration Act has to be served. Any informal notice, even an oral notice of filing of the award is sufficient for attracting Article 119 of the Limitation Act as held in : [1962]2SCR551 . But he contends that this informal or oral notice must be by the court, as under Section 14(2) of the Arbitration Act notice must be given by court. In support of his contention, he relies on AIR 1978 J and K 85 where it has been expressly held that knowledge of the filing of the award must be one which directly or indirectly emanates from the court in which the award has been filed. Knowledge from any other source if permitted to be treated as equivalent to knowledge acquired in or from the court, it would destroy the very purpose of Section 14(2) of the Act. According to the petitioner's counsel, petitioner's know-ledge of filing of the award from the respondent's letter dated 16-7-82 is no notice at ail under Article 119 of Limitation Act. The time will not run from 17-7-82. The application is perfectly within time.

3. The respondent's counsel on theother hand submits that in : [1962]2SCR551 it was not held that the informal notice should emanate from court. : [1962]2SCR551 has been considered by this court repeatedly but it was never held that the informal notice must directly or indirectly emanate from court In support of his contention he relied on : AIR1976Cal406 and : AIR1980Cal28 as also on : AIR1969Pat114 . In : AIR1976Cal406 it was held (at p. 407) :--

'It is settled law that the service of a notice under Section 14(2) of the Arbitration Act as prescribed by the rules of this Court is not essential for the purpose of making an application for setting aside of the award and that the application will be time barred if it is made after 30 days from the date of the petitioner orally informed about the filing of the award in Court, for there is no distinction between a formal and informal notice in this behalf under the Limitation Act as laid down by the Supreme Court in the above case.'

4. In this case, the petitioner was informed by a letter about the filing of the award in court. Of course, from the judgment, it is not clear as to who wrote this letter. But this court did not hold that the informal notice must emanate from court. In : AIR1980Cal28 , the petitioner came to know about the filing of the award in court on 26-6-78 from the report dated 29-6-78 submitted by one G. K. Dutt, the Administrator appointed by court. In that case it was urged on behalf of the respondent that the application was barred by limitation as the same was made beyond 30 days from 29-6-78. The court, thereupon held :--

'I am inclined to think that the application, in view of the facts noted above is barred by limitation.'

5. In : AIR1969Pat114 it was also held that Article 153 of the Limitation Act contemplates a 'notice' only and time will run from the date of informal notice. The notice in that case did not come from court. All these aforesaid three decisions are based on AIR 1962 SC 665 but none of the decisions held that theinformal or the constructive notice must emanate from, court. It is true that the decision in : AIR1980Cal28 is not based on the question of limitation but still the observation of this court on the point of limitation is very clear. The provision of Article 119 of the Limitation Act which is set out below for the sake of convenience, will show that this Article does not contemplate any notice from Court.

Article 119

(a)....... ..... .....

(b) for setting as an award or getting an award remitted for reconsideration.

Thirty days

The date of service of the notice of the filingof the award.

6. In : [1962]2SCR551 , the court was construing Article 158 of the Limitation Art which is Article 119 of the present Limitation Act of 1963 (at p. 669): --

'We see no ground to construe the expression 'date of service of notice' in Cot. 3 of Article 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the legislature used the word 'notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly it must be deemed to have in mind the fact that service of a notice would in-elude constructive or informal notice. If its intention was to exclude the latter sense of the words 'notice' and 'service' it would have said so explicitly. It has no! done so here. Moreover to construe the expression as meaning only a written notice served formally on the party to be affected, will have the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award has not even accrued. Such a result would stultify the whole object which underlies the process of arbitration -- the speedy decision of a dispute by a tribunal chosen by the parties.'

7. It should be noted that while propounding the theory of informal or constructive notice, the Supreme Court has out said that the same should emanate from court. In my opinion this decisionof the Supreme Court will apply in full force where the petitioner had knowledge of the filing of the award informally or constructively from any other source as well. If the legislature intended that the notice must come from court, it would have said so explicitly. The word 'Court' does not find any place in this Article. The law is very simple on this point where the petitioner has a notice under Section 14(2) of the Arbitration Act from court then time will start running from the date of receipt of such notice. But if the applicant has informal or constructive notice of filing of the award from any other source prior to the receipt of Section 14(2) notice or without receipt of notice under the Arbitration Act, then limitation will start from the date of such informal notice.

8. In the present case, the petitioner had informal notice of filing of the award on 17-7-82 and the present application was taken out beyond 30 days from the date of knowledge. This application is, therefore, dismissed with cost.


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