1. This is an appeal against the judgment of Das J. granting the respondents' application to set aside an award made by Ameer Ali J. as umpire in an arbitration under two agreements, both dated 17th March 1941, made between the parties, by which they referred to arbitration three suits instituted in this Court. Each agreement, in Clause 6, provides as follows:
That if there is any difference between the arbitrators such difference and if any matter is not decided by the arbitrators such matter shall be decided by His Lordship Mr. Justice Ameer Ali.
2. On behalf of the appellant, the Bengal Silk Mills Co. Ltd., it is contended that (a) Ameer Ali J. was not appointed an umpire by the two arbitration agreements, (b) he did not dispose of the matters which 'came before him in the capacity of an umpire, but as a Judge of this Court acting extra cursum curiae with the agreement and consent of all parties, and (c) if his disposal was as umpire the application to set aside the award was incompetent as it was made before the award has been filed in Court.
3. In January 1937 one Golam Hossain Cassim Ariff died leaving a will by which he appointed his widow, Aisha, and his two sons, Ibrahim and Ismail, as his executrix and executors, to whom probate was granted in August 1989. On 2lst December 1939, Aisha and Ismail the executrix and one executor, the other executor Ibrahim, not joining as a plaintiff, instituted Suit No. 2261 of 1939 against the Bengal Silk Mills Co. Ltd., claiming Rs. 2,77,010 alleged to have been lent by the testator to the company. On 2nd January 1940, the company instituted Suit No. 1 of 1940 against the executrix and the two executors, as representing the testator's estate to recover a sum of Rs. 6,00,000 alleged to have been wrongly withdrawn and misappropriated by the testator from the company. On 2nd January 1940, Aisha, the executrix, and Ismail, one executor, the other executor not joining, instituted Suit No. 4 of 1940 against a number of relations as mutwallis of a wakf, created by the testator, claiming Rs. 19,093, money alleged to have been lent to the wakf by the testator. The company had obtained a decree against Aisha, in her personal capacity, for rent at the rate of Rs. 350 per month, in respect of some premises belonging to the company. Against this decree Aisha preferred Appeal No. 484 of 1940, which was pending. The testator's son, and one of his executors, Ibrahim, died in October 1940, and his widow instituted an administration Suit No. 213 of 1941, against the heirs of the testator and against his estate. On 2nd December, 1941, by a preliminary decree in the administration suit Mr. S.K. Sawday was appointed Receiver in that suit with the usual powers.
4. Prior to the preliminary decree in Suit No. 213 of 1941, the parties to Suits Nos. 2261 of 1939 and 1 of 1940 made an agreement dated 17th March 1941, by which they referred all matters therein arising to Mr. J.N. Basu and Haji Mahomed Ismail Ariff as arbitrators. The agreement contains the clause, set out above, regarding Ameer Ali J. On the same day, a similar agreement was made by the parties to Suit No. 4 of 1940. Two separate orders of Court, one in respect of each agreement, were made on 18th March 1941, referring the matters in dispute to arbitration in accordance with the terms of each agreement. Neither order mentions the clause in each agreement relating to Ameer Ali J. On account of illness, Mr. J.N. Basu was unable to act as arbitrator and by a further order of Court, dated 5th March 1942, Sir Khawaja Nazimuddin was appointed an arbitrator in his place and stead in the three referred suits. Time for the arbitrators to make their awards was extended from time to time, but it had expired when the awards were made.
5. On 5th August 1942, the Haji Saheb made an award stating that the arbitrators had disagreed and that in his opinion the claims in Suits Nos. 2261 of 1939 and 1 of 1940 should be dismissed and the claim in Suit No. 4 of 1940 should not be allowed, as the amount claimed exceeded the income of the wakf estate, and the parties had agreed that that suit should be dismissed. The Haji Saheb did not make a separate award in respect of each arbitration.
6. About a year later, on 17-7-1943, Sir Khawaja Nazimuddin made an award by which he reported that the arbitrators had differed. In his opinion the company should pay to the testator's estate a sum of Rs. 2,00,000, with interest at 6 per cent, in respect of the claims in suits Nos. 2261 of 1939 and 1 of 1940. He did not mention Suit No. 4 of 1940, and made no separate award with regard to that suit.
7. On 2-8-1944, the three suits appeared in Ameer Ali J.'s daily cause list. On that day the Court minutes record that counsel appeared for the company and Mr. Sawday appeared as Receiver to the testator's estate. The learned Judge directed the three suits to be at the top of his list on 4th August. They do not seen to have been taken up until the 8th' August. On that day the Court's minutes record:
Counsel for the parties appear as before. The Ct : dictates a comprehensive judgment and decree covering all the four matters.
Mr. Sawday's name and appearance are not mentioned. The 'four' matters were the three suits which had been referred to arbitration, and appeal No. 484 of 1940, which did not appear that day or any other day in the learned Judge's daily list. On 8-8-1944, Ameer Ali J. dictated, what has been called, his 'judgment'. It commences:
This matter has been left to me by the parties appearing for my final decision as a Judge as it was originally left to me as Umpire.
It then proceeds to refer to the awards by Sir Khawaja Nazimuddin and Haji Saheb Mohammed Ismail. Later it states as follows:
It is notorious that Judges when asked to umpire or to decide finally, questions of this kind are apt to disregard technicalities in favour of what they consider substantial justice...to decide the claim in favour of the estate on a purely legal basis. In other words, it seems to me that the result arrived at by the Haji Saheb and based upon data and reasons which he has set out is proper and it is also my conclusion:
(1) In the first two suits (Suit 2261 of 1939 and Suit 1 of 1940) the final decision is that neither party in either suit will have any claim against the other.
(2) Suit No. 4 of 1940 is dismissed and there should be no claim between the parties.
(3) In the suit Bengal Silk Mills v. Aisha Bibi and others (Appeal No. 484 of 1940) I make an order for three years' rent at Rs. 300 in favour of the Silk Mills. Eent will continue until possession is made over to the Mills.
(4) All matters of furniture and moveables will be finally decided by Haji Abdul Razzak of 32Bzra Street.
After this order no party concerned in any of these proceedings will have any claim against any of the others.
This 'judgment' is signed : 'Ameer Ali, 3-9-1944'-no designation being given.
8. As previously stated, appeal No. 484 of 1940 was not included in either of the arbitration agreements, and was not in the learned Judge's daily list. It was a pending appeal in this Court at the date of the agreements; it had never been withdrawn and was still pending when Ameer Ali J., disposed of that and with the three suits, which had been referred.
9. On the same day as the learned Judge signed the 'judgment', namely, 3-9-1944, he also signed, what, I will call, a 'proceedings', in which his conclusions are recorded. This document is headed : 'In the Matter of Arbitration Act, 1940' and 'In the matter of...', which is repeated four times; under each is written the serial number of one of the three suits referred to arbitration, and the appeal, and below each suit and the appeal the names of the parties are given. The 'proceeding' recites that in pursuance of the agreement in writing executed in March 1941 and the order of reference made by the Court on 18-3-1941 all matters in dispute between the above parties in the above mentioned suits and the appeal were referred to the arbitration of two named arbitrators, and that if there was any difference between the arbitrators such difference and any matter not decided by them were to be decided by-'myself as Umpire'. The order substituting Sir Khawaja Nazimuddin as arbitrator in place of Mr. J.N. Basu is mentioned. The extension of time by the Court to file the award is referred to. It continues, the two arbitrators had differed and had both made separate reports setting out their findings; as a result of the difference
I have been called upon to give my award as Umpire. And whereas - the parties reiterated their eon-sent and readiness to accept my decision on all points and after hearing the representatives of the parties and on perusal of the records I publish my award as follows:
Thereafter five findings are expressed; four of them are to be found in the judgment and the fifth is that, in all the four suits, each party would pay its own costs and no party would, have any claim against any other in respect of any matter-the subject of the arbitration. Each of the five findings is preceded by the words; 'I adjudge and award.' This document is signed at the foot: 'Ameer Ali, 3-9-44, Umpire.
10. On 22-11-1944, the respondent issued a notice of motion intimating her intention to make an application on 29th November to set aside the award of Ameer Ali J. On the date the notice of motion was issued the award was in fact in Court where it had been ever since the date it was signed on 3-9-1944. The respondent deposited the necessary sum to stamp the award, but stamping did not take place until 25th November, upon which date the award was filed.
11. Learned Counsel for the appellants described the signed 'proceeding' as the decree in the suit and appeal. The way in which the conclusions are expressed by the words 'I adjudge and award', and the use of the word 'arbitration' in the document and the description of the signatory as umpire, indicate that this document, in every respect as to form, expression and substance has the appearance of an award by an umpire upon reference to him in an agreement between the parties to refer the matters in dispute to arbitration. It was not contended in the course of argument that, if Ameer Ali J. was acting as an umpire, his award should not have been set aside by Das J. The contentions in support of the appeal are confined to the three grounds, which I have previously stated.
12. It was argued that Ameer Ali J. did not act as umpire but as a Judge of this Court acting extra cursum curia when he gave his decision the grounds of this being (a) the effect of the provision of Clause 6 of the arbitration agreements was to refer the matters mentioned to him as Judge and not as umpire; (b) the parties agreed that he should peremptorily decide all matters as a Judge acting extra cursum curies, and he had done so pursuant to such agreement.
13. The first contention on behalf of the appellant was this : Since Ameer Ali J. is not described as 'umpire' in Clause 6 of the arbitration agreements, he was not appointed as such; but it was agreed that any difference between the arbitrators and any matter left undecided by them should be decided by Ameer Ali J. as a Judge of this Court. That is to say, that the matters of difference between the arbitrators and the undetermined matters were to be the subject of trial in this Court in the ordinary way of disposal of suits; in support of this argument it was pointed out that the orders of reference, made upon the agreements, do not refer to and do not appoint the learned Judge as umpire.
14. The language used in each of the agreements is unambiguous, it unequivocably referred all matters in dispute in the suits to arbitration. There was nothing in any suit left for determination by the Court. When an agreement for arbitration by an even number of arbitrators provides for a any difference between them to be decided by a named person, even if the word, 'umpire' is not used in connection with that, person, he can act only in that capacity. The1 absence in the orders of any mention of Ameer Ali J., by whom matters of difference or non-decision were to be decided, in my view, is an omission of form and not of substance; each order directs that the suits be determined by the arbitrators in the manner mentioned in the agreement annexed to the petition ('a copy whereof is set out in the schedule hereunder') and a copy of the agreement is contained in the schedule in which Clause 6 is included. Neither in the orders nor in the agreements is there any provision that the matters of difference or which were not determined, were to be dealt with by Ameer Ali J. as a Judge of this Court acting extra cursum curia or otherwise. Parties cannot choose a Judge of a Court by whom they wish their cause to be decided, and even if it had been the intention in the agreements for the matters to be decided by the Court, assuming that course could legally have been adopted, any such provision in the agreements would have had to be by reference to the Court and not to a named Judge of it.
15. After an order is made under Section 23, Sub-section (1), Arbitration Act, referring matters in dispute in a suit to arbitration, the Court no longer has seisin of the matter - vide Ganesh Prasad v. Damodar Das ('12) 16 I.C. 177; Dooly Chand v. Mohanlal] : AIR1924Cal722 ; and Prafulla Chandra Karmakar v. Panchanan Karmakar ('46) 33 A.I.R. 1946 Cal. 427. Thereafter the Court, pursuant to Section 23 Sub-section (2), can exercise only such powers in relation to the arbitration as are expressly given by the several sections of the Arbitration Act, which powers do not include hearing and disposing of matters of difference between arbitrators, or matters which they do not decide.
16. It is clear, from the provisions of Sections 19 and 25, Arbitration Act, before a Court can take up a referred suit it must make an order of supersession with respect to the reference to arbitration.' No such order was made prior to Ameer Ali J., disposing of the matters, and therefore he had no jurisdiction to deal with any of them in his position as a Judge of this Court. It is not without interest to point out that in every respect, as I have mentioned earlier, the document is in the form of an award, and the learned Judge described himself as an umpire in an arbitration when he signed it.
17. The next question is whether Ameer Ali J., was acting extra cursum curies as a Judge by agreement between the parties. It was argued that a Judge cannot be appointed an arbitrator or an umpire in arbitration, and when parties to a suit purport to do so they merely confer upon him authority to act extra cursum curies so as to decide questions and issues as he may think fit without having to try the suit in the ordinary way. Chinna Venkatasami Naicken v. Venkatasami Naicken ('20) 7 A.I.R. 1920 Mad. 800; Madan Mohan v. Munna Lal : AIR1928All497 ; Naushad Ali v. Mohammad Ishaq and K.P. Dalai v. R.S. Jamadar ('45) 32 A.I.R. 1945 Bom. 478 were cited in support of this proposition. In the last mentioned authority, it would appear, an opinion is expressed that, by reference to several provisions in the Arbitration Act, a Judge before whom a cause comes for trial cannot be appointed an arbitrator. In the course of argument in this case, it was sought to carry it further and to the extent that a Judge in no circumstances can be made an arbitrator or an umpire. In this connection some relevant observations are to be found at p. 34 in Russell on Arbitration, 13th Edn., where the following appears:
The subject-matter of an action may be referred to a Judge as arbitrator. The Judge in such a case is merely an arbitrator and has no special powers by virtue of the fact that he is a Judge and his award is not subject to appeal.
In Dalal's case ('45) 32 A.I.R. 1945 Bom. 478 the facts were quite simple. It was a suit for possession or ejectment, and the parties agreed before the learned Judge that following an inspection by him of the locus in quo, and a promise by the plaintiff to provide some alternative accommodation for the defendant, the decision of the Judge would be accepted, and he need not try the suit in the ordinary course. That is a typical example of a Judge acting extra cursum curies. It is well settled that the parties to a suit, which is properly before the Court, can agree that the Judge should decide all matters in issue in the way he considers proper and after, for instance, an inspection of the locus in quo and without calling evidence, or at any rate without fully hearing the evidence. When this course is adopted a Judge acts extra cursum curies and his decision is final and conclusive between the parties.
18. I can find nothing in the Arbitration Act or in any other statute, or provision of law, which prevents a Judge acting as arbitrator or umpire. In none of-the several authorities cited on behalf of the appellants was there, as there is in this case, a formal reference to Arbitration followed by an order of Court referring the matters in dispute to arbitration. In each of the cited authorities there was the informality of a statement before a Judge in Court, before whom a case came for decision, to the effect that the parties would accept his decision and he could express it after, for instance, an inspection of the premises or other locus in quo. Here, the requirements of the Arbitration Act have been carried out, regarding a formal written agreement being made between the parties in which all matters in dispute are agreed to be referred to arbitration of two arbitrators, and an additional provision, which is frequently found when an even number of arbitrators are to have cognizance of the matter, for the appointment of a third person to decide matters of difference or non-disposal - there are the orders of Court referring the suit to arbitration. I am unable to accept the contention that in every instance when there is a reference to a Judge for his disposal of a matter, and when the word 'arbitrator' or 'umpire' is used in connection with his appointment, he is not an arbitrator, or umpire under the Arbitration Act and he is authorized solely as a Judge of the Court to act extra cursum curies. That cannot be the position when, as in the present case, there are the formalities of reference of disputes to arbitration and the Judge is the named arbitrator or umpire, as the case may be.
19. Learned Counsel for the appellants drew attention to, and emphasised, the opening words of Ameer Ali J.'s 'judgment' that the matter had been left by the parties to him for his final decision as a Judge as it was originally left to him as umpire. It was argued that a Judge's statement as to a fact regarding an occurrence taking place before him must be accepted without demur; and that from the above words it is apparent the decision was not given as an umpire but as a Judge acting extra cursum curies with the concurrence of all parties to the proceedings.
20. Firstly, Ameer Ali J., himself evidently did not consider that he was acting other than as an umpire in an arbitration; secondly, whilst the proposition regarding the acceptance of a Judge's statement as to a fact, in the circumstances mentioned was not controverted in any way, that does not apply to a statement made with respect to the construction of a document. If the statement relates to the meaning of Clause (6) of the arbitration agreements, that is not what the clause says and it is not how the learned Judge, interpreted its meaning; since he made an award as umpire and he did not pass a decree. Thirdly, the statement does not say 'all parties,' but 'the parties appearing.' The Court minutes show that the three suits came before Ameer Ali J., on two days, but the company alone, which was one party in two of the three suits, was represented and no other party appeared either in person or by counsel or solicitor. Mr. Sawday, the Receiver in another and entirely separate suit, appeared on the first occasion but he could not, and had no authority to, represent the other parties. The consent of all parties, therefore, could not have been given on either of the two days the suits appeared in the list-on the 2nd and 8th August.
21. In para. 14 of the affidavit, affirmed by a director of the appellant company, in opposition to the application to set aside the award, there is a reference to a note made by Mr. Sawday for the consideration of the umpire (which is clearly intended as meaning Ameer Ali J.) and that Mr. Sawday had notified the parties in the three referred suits to appear before the umpire on the 20th at 10 A.M. This document is not printed in the paper book, but being amongst the documents in Court we sent for and examined it. This document is undated, it expresses the writer's views regarding the awards by the two arbitrators and concludes that the parties had been notified to appear on the 20th at 11 A.M. no month or year being stated. There is nothing in evidence or on record to show whether the parties appeared or what transpired, if they did so-appear, in connection with the notice said to have been given, according to the note. Nevertheless, it was argued for the appellants that it should be inferred that all parties appeared upon some unknown date before Ameer Ali J., and agreed to the suits being dealt with by him acting extra cursum curice as a Judge. It is impossible to do this. Moreover, the appellants' own affidavit refers to an 'umpire,' and nowhere states that the parties met and agreed to the course, which it is urged should be inferred. Towards the conclusion of his argument learned Counsel for the appellants (moved?) for this appeal to be adjourned in order that the evidence of Ameer Ali J., should be obtained with regard to the matters which took place in his presence and before him. The learned Judge retired from the Bench of this Court in 1944 and is now residing in England. If his evidence was considered necessary, steps to obtain it should have been taken prior to the hearing before Das J. It is too late now for that course to be adopted and clearly the application was an afterthought. In my view Ameer Ali J., was not acting extra cursum curia as a Judge when he disposed of the matters of the three suits referred to arbitration, but was acting as an umpire in the arbitration and as such,, he made his award.
22. With regard to the appeal, which is included in the award, this was not and could not have been referred to arbitration, since judgment has been pronounced in the suit out of which the appeal arose and a reference of it to arbitration would offend Section 21 of the Act. In any event it was a pending appeal and could not receive disposal by a single Judge. This is not a matter of importance in the present appeal, but its purported disposal might be a ground to set aside the award. Comment was made that the arbitrators and Ameer Ali J., made their awards long after the expiration of the extended time whilst this also may be a ground to set aside the umpire's award, upon which I express no opinion, it is not a happening which, in any way, affects the matters arising in this appeal.
23. It was next contended that the award was not filed in Court before the application was made to set it aside; consequently the application was incompetent. In support of this proposition, Ratanji Virpal & Co. v. Dhirajlal Manilal ('42) 29 A.I.R. 1942 Bom. 101, and Bengal Jute Mills Co. Ltd. v. Jewraj Heeralal : AIR1944Cal304 were cited. In each of those cases no award was in fact ever filed at all. It is desirable to recapitulate the particular facts of these applications. On 22-11-1944, the respondent issued a notice of motion intimating that an application would be made on the 29th November to set aside the umpire's award; the award had been in Court since it was signed on 3-9-1944 and it was, in fact, formally filed on the 25th November; the application to set aside the award was made on the 29th November. In Shree Chand Daga v. Sohanlal Daga : AIR1943Cal257 it was held that the taking out of a notice of motion is not the making of an application but is a warning of the intention to do so on the date mentioned in the notice, and that an application is made on the specified day when it comes before the Court. On the 29th November, when the application to set aside the award was made, the award had been filed. In that respect the application conforms with all requirements. But one further matter arises for consideration. On the 23rd November, one day after the issue of the notice of motion and two days before the award was filed, the respondent made a separate application for an interim injunction with respect to the award, which was granted. On this account it was argued that an application to set aside the award was made on the earlier date and before it had been filed. I am unable to accept this contention. Whilst the separate application made on the 23rd November was with respect to the award and might have been in aid of the application to set it aside, it was not an application for that purpose. Setting aside the award was the subject of another application made on the 29th November. When that application was made, the award had been filed and in those circumstances it was maintainable and competent.
24. Reliance was sought to be placed upon the acts and conduct of the respondent, or her attorneys, with regard to the 'judgment.' On 14-8-1944, the respondent's attorneys put in a requisition for drawing up a decree; on 11th November a draft decree was issued by the Court; on 18th November the attorneys returned the draft with alterations together with a note to the effect that there was no hearing, the award had not been filed, there was no judgment upon the award and the question was whether a decree could be drawn up; on 22nd November, the same day as the notice of motion was issued, the attorneys appeared before the learned Master, who adjourned the matter sine die, noting that the attorneys who gave the requisition for drawing up the decree said that they were misled and in their view no decree was made and they did not wait and did not want a decree to be drawn up. I am entirely unable to see how those circumstances in any way affect the questions which arise for decision in this appeal. I mention them because apparently some importance was placed upon them.
25. The above conclusions are sufficient to dispose of this appeal; but, considerable argument was directed to the question whether a Court can set aside an award in the absence of it being filed, and I feel it desirable to express my views upon that question. The Arbitration Act of 1899 dealt solely with arbitrations outside the Court. Schedule 2, Civil P.C., 1908, provided for arbitrations in Courts, that is to say, of reference of suits to arbitration. There are one or two provisions in the Schedule relating to extra judicial arbitrations to which reference is not required. The Arbitration Act of 1899 and Schedule 2 of the Code were both repealed by the Arbitration Act of 1940, to which statute it is necessary to look now in order to ascertain the power of the Court and the rights of the parties with respect to setting aside an award in an arbitration concerning matters in a suit referred by agreement of the parties to arbitrators or to an umpire. Section 22(1) provides that the Court shall refer to the arbitrator the matters in difference which he is required to determine. Sub-section (2) provides that where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in the Act, deal with any matter relating to the suit. Other provisions in the Act, particularly Section 41, enables the Court to make orders in some instances, enumerated in Schedule 2 to the Act, during the pendency of an arbitration of matters in a suit referred to by an order of the Court. Section 14 requires the arbitrators or umpire to make their award, to sign it and to give notice thereof to the parties, and, further, that upon being paid their fees and the charges of filing, the arbitrators or the umpire must file the award in Court when so requested by a party; upon its being filed, the Court shall then give notice to the parties of the filing. The statute therefore, provides the way by which the Court is to be apprised of the result of an arbitration with respect to a referred suit. Section 15 enables the Court to modify or correct the award in the circumstances therein specified. By Section 16 the Court can remit the award to arbitrators or umpire in the circumstances therein set out when it considers it right and proper to do so. Then comes Section 17 which provides as follows:
Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award.
Section 30 supplies the grounds upon which an award can be set aside including misconduct of the arbitrators and the umpire, and the award being invalid.
26. It was conceded by learned Counsel for the respondents that the Court cannot pronounce judgment on the award, under Section 17 of the Act, unless and until the award is filed in Court; but it was contended that the Court can modify or correct, or remit the award for further disposal by the arbitrators and set aside the award, without the award having been filed.
27. After making an order of reference of the matters in suit to arbitration the Court, except wherein it is so provided in the Act, cannot thereafter deal with any matter relating to the suit. If the Court has to deal with such matters, then it must first make an order for supersession of the arbitration. But it can act with respect to the arbitration in accordance with the provisions in the statute. Firstly, it can pronounce judgment on the award, but only after the award has been filed in Court. The filing of the award in Court is the method by which the Court is given cognizance of it and apprised of its contents. Since the original award is in the hands of the arbitrators or the umpire, no party has the original; he may have what is, or what purports to be, a copy. Unless the award is in Court, I cannot see how the Court, under Section 16, can remit the award back to the arbitrator or the umpire. 'Remit' means send back, and if the award is not in Court, there is not an award for it to send back. In the same way unless the award is in Court, and by the award I mean the original award and not a copy supplied by a party, how can the Court modify or correct the award, under Section 15? In my view, in both instances of remitting and modifying or correcting the award must have been filed before a Court can entertain an application for one of those purposes.
28. Then we come to Section 17 which provides that the Court, where it sees no cause to remit the award or to set it aside, or if an application to set it aside has been made and refused, the Court shall proceed to pronounce judgment according to the award. There are three things in Section 17 which the Court can do. (1) Remit the award, (2) pronounce judgment on the award, both of which require the award to be filed before those things can be done), and (3) set aside the award. I can see nothing in that section by which the Court is entitled to act upon a different set of circumstances in regard to setting aside the award. In many instances in order to see whether an award should be set aside, it is necessary to examine the award to find its effect and contents. Unless the award is filed and the Court has the award before it, it cannot act upon the contents of the award; it cannot act upon what purports to be a copy supplied by the applicant or any other party to an application.
29. Considerable reliance was placed upon Section 31, which is described as the jurisdiction section. Sub-section (1) provides that an award may be filed in any Court having jurisdiction in the matter to which the reference relates. This confers jurisdiction, with regard to an arbitration, upon the Court which would have jurisdiction had a suit been filed or a suit proceeded with. By Sub-section (2), omitting unnecessary wording, it is provided that all questions regarding the validity, effect or existence of an award or an arbitration agreement, shall be decided by the Court in which the award under the agreement has been, or may be, filed and by no other Court. It was argued that the words 'may be filed' qualify the previous provision of the sub-section 'has been filed,' and it was urged that 'may be' shows that the filing of an award is not required in an application to set it aside. The sub-section provides for decisions regarding questions relating to the validity, effect or existence of an award. It is quite clear, if there is an application questioning the existence of an award, no award will be filed, inasmuch as the nature of the application presupposes that no award exists. The other two matters are as to validity and effect. The effect of the award might raise the question whether the award requires modifying or correcting, or whether it should be remitted to arbitrators to dispose of some undetermined matter, in which instance the award must be filed.
30. In my opinion the words 'may be' in Sub-section (2) merely relate to, and bear the same meaning as, the like words in sub Section (1) of Section 31 and those words are in no way providing for futurity. It is often probable, in an arbitration outside Court, that two Courts might conceivably have jurisdiction, and jurisdiction is given to one of those Courts at the choice of one or other of the parties by providing that the award may be filed in any Court having jurisdiction. As long as no award has been filed either Court might have jurisdiction but as soon as it is filed in a Court, that Court is the one which has jurisdiction. In my opinion, Section 31 does not advance the argument on behalf of the respondent that an award need not be filed before an application is made to set it aside.
31. It was contended that, prior to the 1910 Arbitration Act, a party to an arbitration could make an application to the Court to have an award set aside and there was no need for it to be filed before such an application was made. We invited an authority to support that proposition. None was forthcoming but one case was cited, viz., Jai Narain Babulal v. Narain Das Jaini Mal ('22) 9 A.I.R. 1922 Lah. 369, to which I will presently refer. I do not think that that authority supports the proposition. The Arbitration Act of 1899 provided solely with respect to arbitrations outside the Court and, by Section 15 of that Act, upon filing an award in Court, it was enforceable in the same way as a decree. Since that Act has now been repealed, that provision is no longer in force. The provisions of the Arbitration Act of 1940, which more particularly now arise, are those which relate to an arbitration when a suit is referred to arbitrators; and, with some alterations, the repealed provisions of Schedule 2. Civil P.C., are re-enacted in it. The provisions of Schedule 2, so far as material, were the following : Paragraph 10, corresponding to the present Section 11, required the arbitrators to sign the award, cause it to be filed in Court, and to give notice of the filing to the parties. Now, notice is given by the Court. Paragraph 12, corresponding to Section 15, enabled the Court to modify or correct the award. Paragraph 14, corresponding to Section 16, enabled the Court to remit an award to arbitrators or an umpire for further determination. Paragraph 16, corresponding to the present Section 17, enabled the Court, to set aside the award and to pronounce judgment upon it. The scheme, as I see it of Schedule 2, was this-upon the filing of an award in Court, the Court took cognizance of the matter and then entertained an application to modify or correct, remit, set aside or pronounce judgment upon it. As mentioned above, no authority has been cited by which it has been held that, when the provisions of Schedule 2, were in force, an application to set aside an award could be entertained in the absence of the award being filed. Before the passing of the 1940 Act, a party could institute a suit, pursuant to Section 39, Specific Belief Act, to have an award set aside; when such proceedings were taken it was unnecessary for the award to be filed in Court; all questions relating to it were dealt with in the suit. Section 32 of the 1940 Act expressly prohibits a suit to set aside an award, that relief can now be obtained solely by means of an application.
32. Jai Narain Babu Lal's case ('22) 9 A.I.R. 1922 Lah. 369, to which I have previously referred, was cited as an authority for the proposition that, under the Arbitration Act, 1899, and Schedule 2, Civil P.C., an award could be set aside by means of an application to the Court without the award being filed. That case was a suit to set aside an award. In the judgment of Shadi Lal C.J., reference is made, at p. 317, to an argument that the plaintiff should have waited until the award had been filed in the appropriate Court and to contest it by making an application to that Court under Section 14 of the 1899 Act to set it aside instead of instituting a suit for that relief. The learned Chief Justice nowhere says an application to set aside an award could have been made in the absence of it being filed; on the contrary he appears to recognise and accept that it would have to be filed before an application to set it aside could be made.
33. In my view, the scheme of the present Arbitration Act, 1940, is the same as the scheme of the repealed Schedule 2. When a Court refers a suit to arbitration, save in respect of such matters as are expressly provided by the Act, the Court no longer has seisin of the matters in suit. It obtains seisin again by one or two methods; (1) by passing an order superseding toe arbitration; in which event the matters in suit return to the Court for trial in the ordinary course, and (2) by the award being filed, when the Court can take up matters arising out of the award. In Bengal Jute Mill's case : AIR1944Cal304 , quoted above McNair J. held that an application to set aside au award does not lie until the award is filed in Court, which is in conformity with the scheme of the Arbitration Act. With respect I agree with his decision. I am not able to subscribe fully to the opinion expressed by Chagla J. in Ratanji Virpal's case ('42) 29 A.I.R. 1942 Bom. 101. At p. 455 of the report, the learned Judge observed that the Legislature contemplated that an application for setting aside an award could only be made after the date of service of the notice of filing of the award. In arriving at this conclusion, Chagla J. relied upon Article 158, Limitation Act, as amended by the Arbitration Act of 1940. That Article prescribes a limitation period of thirty days from the date of service of the notice of filing an award in which to make an application to get the award set aside. It is well settled that the Articles of the Limitation Act do not found a cause of action but give the starting point from which the period of limitation is to be counted. In other words, the Articles of the Limitation Act destroy, but do not create, a cause of action.
34. In my opinion an application to set aside an award cannot be made in the absence of an award being filed in Court; but directly the award is filed, irrespective whether or not notice has been received of its filing, such application is competent. The conclusion which previously I expressed, that the application in the present instance was correctly and perfectly made, renders it unnecessary to deal with the question whether an application can be made to set aside the award in the absence of the award being filed. I have dealt, however, with this matter at some length out of respect for the able arguments of learned Counsel for each party in regard to that matter. In my opinion and for the reasons given the decision of Das J. is correct and this appeal should be dismissed with costs. Certified for two Counsel.
35. The facts in this matter have been stated by my learned brother and I need not go over them again. One main line of argument only has been pursued before us at the hearing of this appeal by learned Counsel for the appellants in order to resist the order of Das J. who granted the application and set aside the award; that is, to seek to establish that the directions given by the learned Acting Chief Justice and embodied in the two documents printed at pages 68 and 71 of the paper book both signed by the learned Judge on the same date, that is, 3-9-1944, were not orders made in any arbitration or as award but were an order or orders and a decree or decrees made by him as a Judge in Court.
36. To establish that, Counsel has to show both (a) if there had been a reference to arbitration and arbitration had commenced and existed, which it is conceded here, was the case, that the arbitration had been terminated and superseded, otherwise this Court would have had no jurisdiction pending the existence of the arbitration proceedings and (b) that there had been, in fact, an agreement by the parties to submit all the matters covered by those orders at pages 68 and 71 to the individual learned Judge to decide them as a Judge but acting under a procedure other than according to the ordinary rules of law and procedure and acting in his discretion and in such manner as he thought fit, taking such evidence, if any, or not as he thought fit, in a capacity which has been throughout the argument, for brevity and convenience, referred to as that of a Judge acting extra cur sum curia.
37. Assuming the matters concerned were decided by him as a Judge in Court and not as an umpire in arbitration proceedings, it is common case that they were not heard and decided in this Court as suits or as an appeal respectively after hearing evidence in the manner which for an ordinary hearing of a suit or an appeal the Code of Civil Procedure makes obligatory on a Court.
38. The matters covered by the direction to which I have referred are : Suit No. 2261 of 1939 being a suit by the executors and executrix of Golam Hossain Cassim Ariff's estate against The Bengal Silk Mills Co. Ltd. for Rs. 2,77,000 and odd for monies claimed to have been lent to the company by the deceased. This suit was filed on 21st December 1939. The plaintiffs in the suit were, in fact, Ismaif Ariff and Ayesha Ariff the present appellants, two of the executors, the third executor not having joined as a plaintiff had been made a defendant. Suit No. 1 of 1940, a suit by the company against the executors as representing the estate, for 6 lacs of rupees, filed on 2nd January 1940. Suit No. 4 of 1940 by the same two persons as executor and executrix of the estate against Solaman Cassim Ariff and Yusuf Cassim Ariff as mutwallis of a wakf for Rs. 19,093 on a claim for monies lent and advanced to the wakf. Appeal No. 484 of 1940. This was an appeal in a litigation which began in the form of a rent suit by the company against Ayesha Ariff the appellant and others filed in the Court of the Subordinate Judge, 24-Perganas which came up to this Court on appeal. I should mention here that there was also on 12th February 1941 a suit, viz, Suit No. 213 of 1941 which is not referred to in the directions printed at pp. 68 and 71, in which one Dorothy Jane Ariff the widow of Ibrahim Golam Hossain Ariff then deceased filed an administration suit against the heirs of her late husband and of Golam Hossain Cassim Ariff for the administration of their two estates. It will be seen that the claims and cross-claims in the cross suits and in the appeal affected the estate of the late Golam Hossain Cassim Ariff but various different parties were concerned in different capacities.
39. I now turn to the main question 'Was there an agreement by the parties to refer all or any of these matters to the decision of the learned Judge for him to deal with them extra cursum curies'. The principle that where the parties so agree there is nothing illegal in them inviting and accepting a course by which the Judge hearing a suit will decide it extra cursum curies without the usual formalities, normally made obligatory by law, has been accepted in this Court. In fact, in a recent appeal we, sitting as this same Bench, gave a decision basing our judgment on this principle. In that case we held that it had been established that the parties had, in fact, agreed to refer the matter to the Judge to deal with it extra cursum curies. Certain cases concerning this principle have been referred to by Das J. at p. 36 of the paper book; the ease generally considered as the leading case being Burgees v. Morton (1896) 1896 A.C. 136. Since the principle of law is not in dispute I need make no further reference to this matter.
40. The position as to the evidence or materials in the present case on which we were invited to come to a finding that such an agreement was in fact entered into for reference to the Judge to decide extra cursum curia is noteworthy. The petition to set aside the award (which is the petition on which the judgment of Das J. was eventually made) proceeds on the simple basis that there was an arbitration and a purported award, which in the submission of the petitioner was bad. The affidavit in opposition at p. 13 of the paper book proceeds on precisely the same basis, that there was an arbitration and an award, but the contention is that the award is good. There is no suggestion from beginning to end of that affidavit that in fact, the directions given by the learned Judge (which to identify them I refer to as printed at pp. 68 and 71) were made otherwise than in an arbitration. The first occasion when such a suggestion was made was when the application came to be heard before Das J. in argument. Then there was a fresh case made in argument put forward apparently on the basis of an alternative case. Even at that stage, no application was made before the learned Judge to file any fresh affidavit putting before the Court any fact or circumstances on which the Court would be invited to find, as fact, that there had been an agreement to refer to the Judge to decide extra cursum curia. It has never been suggested before us that any statement was made from the Bar before the learned Judge (Das J.) in lieu of evidence by Counsel appearing before the learned Acting Chief Justice or that leave was ever asked to put forward such a statement by Counsel. No leave was asked to file any affidavit either by Mr. Sawday, who had been appointed Receiver in the Administration suit, or by any party or other person present in Court. No such affidavit was filed in the hearing before Das J. Before us the matter stands (with one exception to which I will refer in a moment) on precisely the same footing. A faint suggestion was made that this Court should, of its own motion, take steps when the appeal was half way through its hearing to obtain the evidence of the learned Acting Chief Justice himself who is now in the United Kingdom. When we specifically asked Counsel appearing for the appellant whether he wished to apply for an adjournment for that purpose, any application for an adjournment for that purpose was opposed by the respondent, and we did not grant it. The only single matter beyond the documents printed in the paper book on which counsel for the appellant sought to rely before us was a document which he referred to as 'the report of Mr. Sawday' or alternatively Mr. Sawday's 'note.' This document is referred to in para. 14(c) of the affidavit in opposition at page 17 of the paper book. Mr. J.C. Gupta intimated that he wished to rely on this document as affording evidence that there had been an agreement by the parties to refer the matter to the learned Judge for decision extra cursum curies. When he made this intimation, Mr. Chatterji for the respondents objected to its production. In spite of this, however, when after discussion it appeared that this paper was in fact, at the present time in the office downstairs of this Court we allowed it to be produced and looked at it. The material portion of it is as follows:
I would like to suggest that in this case the first point is to take the full consent of both parties to the exception of any decision given by Mr. Justice Ameer Ali and it would be agreed that all minor points are covered by his decision.
(A copy of this document should be placed with the records).
41. When the document is persued it will be seen, in fact, that it records no agreement having been made by the parties even assuming that Mr. Sawday as Receiver could 'be regarded in any capacity as binding the parties for tins purpose. All that it does contain is a recommendation by Mr. Sawday as Receiver that one of the things that should be done is that parties should agree.
42. Two points are at once noticeable-from the note referred to above. Firstly that even if the recommendation had been carried out, it is not stated in such a way as to show clearly that what was contemplated was an agreement to refer the suits and the appeal for decision by the Judge extra cursum curiae, and is not inconsistent with an agreement to refer all matters to him as an umpire. Secondly, and even more important, there is nothing in the note to show that this course recommended was, in fact, ever carried out or that any agreement by the parties was ever obtained. So much for the note.
43. Summing the matter up as to the evidence and materials before us no mention in any of the affidavits or other proceedings before us prior to the document at page 68 contains any reference to any such agreement. Counsel for the appellants then seeks to take his stand on this document at page 68 and in particular on the following words:
This matter has been left to me by the parties appearing for my final decision as a Judge as it was originally left to me as Umpire.
It was argued that since this is a statement by the learned Judge dealing with the matters concerned, we, sitting here in this Court, are bound to accept it as correct. I, for myself, would willingly and with greatest respect accept any statement of a learned Judge as to what had occurred during proceedings before him if made in unambiguous terms and in circumstances which, on the face of them, did not contain conflicting statements and in so far as a statement made by him is a question of fact. In so far, however, as the statement of the learned Judge amounts to no more than an interpretation by him of the construction of some documents or proceeding or order before him then with the greatest respect, as I see the position, not only are we not bound to accept that statement as necessarily correct but it is our duty as a Court of appeal sitting here to put our own construction on the document concerned. What is the position here? Is it a statement of fact or is it an interpretation of the construction of a document? I have already at some length discussed what evidence or materials other than the actual words in the proceedings we have before us on which we were invited, to arrive at a decision that the learned -Judge was asked to come to a decision as a Judge acting extra cursum curies. Giving the matter the best consideration I can find, no evidence or materials on which to arrive at such a conclusion or on which to hold that the statement by the learned Judge had been founded. The only material before us touching the point would appear to be the two orders of reference to arbitration, printed at pages 52 and onwards and 57 and onwards. The first order at page 52 is the order for reference to arbitration in the two Suits No. 2261 of 1939 and No. 1 of 1940 and the second order at page 57 is the order for reference to arbitration in Suit No. 4 of 1940. The only clause or phrase in that order, so far as I am aware, which has any bearing on the present point is Clause 6 which is identical in both orders and is worded as follows:
That if there is any difference between the Arbitrators such difference and if any matter is not decided by the Arbitrators such matter shall be decided by his Lordship Ameer Ali J.
Those orders of reference were both made on 18th March 1941. We have nothing beyond this on the record in connection with what happened at the time of reference to arbitration. And we have nothing at all on the record in connection with what happened when the suits-eventually same into the list in August 1944.
44. Now it seems to be of some importance to me to note that this case differs from the ordinary class of cases such as Burgees v. Morton (1896) 1896 A.C. 136 quoted above in various respects. In those cases of the nature of Burgees v Morton (1896) 1896 A.C. 136 there has been a suit or other proceeding before the Court coming up to be decided by a Judge and the parties have then agreed in order to dispense with expensive formalities, and for other reasons to refer the matter to the Judge before whom the suit is up for hearing for his decision in his discretion acting extra cursum curies. In the present case, no such situation has occurred. Before the suits came up for hearing they were referred to arbitration. It is common case that there was a reference to arbitration and that there was an arbitration by two arbitrators. Therefore the present case is not the simple case where a suit is referred from a stage, when it is being heard in a Court before a certain Judge, to that Judge for decision extra cursum curies; but where a suit which has not been heard and has been submitted to arbitration is, it is contended, then brought back to a Judge for his disposal as a Judge extra cursum curies. I cannot read into that order of reference any such meaning as to bring the matters referred to arbitration back to the Court for decision by a learned Judge acting extra cursum curies.
45. In regard to what happened at the later stage in August 1944 there is another difficulty. In the first place, there are no minutes supporting the statement in the sense that it amounts to an agreement by the parties to refer the matter to the Judge for decision in his discretion extra cursum curies. Even assuming however that the non-recording of any minutes on such an important point occurred merely by error or oversight and that the statement of the learned Judge is correct and does, in fact, refer to some agreement by the parties made before him in August in Court when the matter came into his List, even then there is this further difficulty. The statement merely says 'The matter has been left to me by the parties appearing.' As to what parties appeared no suggestion has been made before us that the minutes are inaccurate or incomplete. The Court, minutes have been referred to by Das J. at page 33 of the paper book. It is there stated as follows:
Mr. J.C. Gupta with Mr. M.S. Salehji appears for the Bengal Silk Mills. Mr. S.K. Sawday appears as the Receiver to the estate of G.H.C. Ariff.
That is on 2nd August 1944. In regard to 8th August 1944, the minutes state:
Counsel for the parties appear as before.
Therefore, it is quite clear that the respondent was not represented either in person or by counsel. It may be noted in regard to Mr. Sawday's position that he had been appointed Receiver in a suit which is not covered by the reference to arbitration or by the directions given by the learned judge printed at page 68 or 71 Further-more, even had it been possible to stretch a point and suggest that he was present even for the purposes of those other suits in which he had not been appointed Receiver in the capacity o receiver representing the estate even so I can see no legal foundation for any suggestion that he was authorised on behalf of the respondent or the executors or the other parties to enter into such an agreement which has to be established.
46. For these considerations I have no option therefore but to hold that there was no agreement such as is contended for by Counsel for the appellant binding on the respondents or the other parties concerned to refer the matter to the decision of the learned Judge in his discretion extra cursum curies.
47. I have now to consider the allied, question : has the arbitration been brought into existence, which was admittedly subsisting, on 8th August and on 3rd September Section 23(2), Arbitration Act, 1940, provides as follows:
Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this Act, deal with such matter in the suit.
The matters covered by the two orders of reference to which I have referred having been referred to the two arbitrators the Court could not regain jurisdiction, in my view, for any purpose other than those specified under the Arbitration Act. The contention that the Court had regained seisin of the matter by 8th August and 3rd September has been put forward, as I understand the argument of Counsel for the appellants, on two footings. The first is that the original orders of reference were conditional references to arbitration only : with this effect that, if the arbitrators differed, the matter, from a proper construction of the words of reference, would then come back to the Court for being dealt with as a suit. In this respect Mr. Hazra referred us to Section 5, Arbitration Act, which provides as follows:
The authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitral ion agreement.
My learned brother has already dealt with this aspect of the matter in some detail. On the construction which 1 take, as already explained, of the words of reference I cannot see how a meaning can be read into them to suggest that the arbitration was for a limited time, and for a limited purpose only and that the authority of the arbitrators was to be revoked on their disagreement.
48. The other footing on which it is contend, ed that the Court had renamed seisin of the matter by 8th August or 3rd September is this : It is argued that when a person is appointed an arbitrator or an umpire who is, in fact, a Judge of a Court, it is impossible for him to act as an arbitrator or umpire under the Arbitration Act, and the conclusion which must inevitably be arrived at, is that he can only act as a Judge of the Court sitting in the Court but acting extra cursum curia. In support of this argument the case of ('45) 32 A.I.R. 1945 Bom. 478 was relied on by Counsel for the appellants Prom the facts of that cape, it will be seen that here was no doubt a definite agreement as was held by the Court that the learned Judge before whom the suit was being disposed of was to decide it in his discretion. In expressing the agreement the words used were that he was to decide it 'as arbitrator.' The learned Divatia J. held in effect that in spite of the words 'as arbitrator' the learned Judge in that case was not acting as an arbitrator so as to be bound by the Arbitration Act but could only, in fact, be treated as acting extra cursum curies.
49. In so far as the decision rests, there I fully and respectfully agree with it. The sail was before the Court and it is clear from the nature of the agreement and the circumstances in which it was made that the parties intended that the learned Judge should deal with the matter as a Judge in Court in spite of using the words loosely 'as arbitrator.'
50. The material question in each ease will be whether the parties, in fact, intended the individual to decide the matter as a Judge in Court, even though free from certain formalities or technicalities or restrictions of normal procedure, or whether the parties, in fact, intended the individual to deal with the matter as are arbitrator or an umpire under the Arbitration Act. One can only look to the facts of the particular case in order to spell out the particular agreement. In the present case, as I have already mentioned, I cannot see that the agreement can mean anything other than that Ameer Ali J. being fully and formally described,, as you would expect in a formal order drawn up as an order of this Court, but for the purpose of identification only, as his Lordship Ameer Ali J., was to decide the matter as an umpire in terms of the usual law of arbitration.
51. Then Counsel for the appellant seeks to rely further on the case as an authority for the proposition that adjudge can never be appointed, an arbitrator, and on the same reasoning that a Judge can never be appointed an umpire. If the decision in the case is intended to go to that length, with the greatest respect, I find that I myself am unable to agree in this. In that case and in the Madras case in which the judgment, of Sadasiva Aiyar J. was relied on, Changalloya, Chetti v. Raghava Ramanuja Doss ('19) 6 A.I.R. 1919 Mad. 150, the difficulty suggested is.that a Judge could not also be an arbitrator because the Court would have to give directions to the arbitrator and it would be impracticable and against the course of justice for one individual sitting as a Judge to be regulating himself sitting as an arbitrator. I would merely point out that no such difficulty would have been arising in the present case-, since applications concerning the pending arbitration proceedings either during the time they were before the two arbitrators' or during the time they were before the umpire Ameer Ali J., would not have had to come to Ameer Ali J. but according to the ordinary arrangement and practice of this Court would have gone before the learned Judge dealing with interlocutory matters. I am unable to find on either of these grounds put forward that the arbitration proceedings had ceased or that the Court had regained seisin of the matter. It may be of some importance also to point out that there was no order at any time superseding the arbitration.
52. I should propose to make one brief observation in regard to the further point raised on behalf of appellants that even if we are to find that the arbitration was subsisting and that the directions given by the learned Acting Chief Justice (Ameer Ali J.) printed at pp. 68 and 71 were orders or awards in the arbitration yet the petitioners before Das J., were incompetent to move the application because it was premature on the ground that the application was taken out before the award had been filed. This point has been fully dealt with by my learned brother. I fully agree with his observations and have nothing further to add.
53. Before leaving this appeal, I should have stated earlier that I fully appreciate that the learned Judge in seeking to deal with the matter as he did was actuated solely by the highest motives in the hope of doing substantial justice to the parties and in the hope of putting an end to what otherwise he might have feared would be a voluminous litigation and so as to save the parties' time and costs. In the view I take of the matter, however, as explained above we have no alternative but to set aside the award made by him as printed at pp. 68 and 71 of the paper book.
54. I should say one word more in regard to the appellants' contention that the application to set aside the award was premature. Das J., has dealt with this matter in some detail as also has my learned brother. In the first place, I respectfully agree as is to my mind clear effect of : AIR1943Cal257 that the material time to be considered as the time when an application for setting aside an award is made to the Court is the date on which the application is actually moved and not the date of the notice of motion. I may remark in passing that it is no doubt an appreciation of this position which permits the practice which is a common everyday occurrence for counsel to come before the Court with applications which are liable to lie time-barred and ask that the application may be noted as being made 'to-day.' There will certainly be no necessity for this practice at all if the time for making the application was treated as the date when the notice of motion was served. Therefore, I respectfully agree that on the facts of the present case we can hold that the application was made to set aside the award duly after the award had been filed.
55. If this finding on this point is correct there is no need further to consider the question whether the application to set aside an award has to be made after the award is filed or may be made before the award is filed. It was urged in argument before us that under the Act of 1899 it was recognised that an application to set aside an award could be made before the award was filed. The Act of 1899 deals only with arbitrations not in pending suits. Arbitrations in pending suits were of course covered by Schedule II, Civil P.C. Since the wording of the material provisions in Schedule 2 were substantially similar to the wording of Section 31, of the present Arbitration Act of 1940 we invited counsel to place before us any decision where it had been held under the old Act and the old schedule existing prior to the Arbitration Act of 1940 that an application to set aside an award could be made before the award was filed. The only case placed before us was that of Jai Narain Babu Lal v. Narain Das Jaini Mal ('22) 9 A.I.R. 1922 Lah. 369. That case no doubt illustrates, what was then accepted as being the position, that a suit under Section 39, Specific Belief Act to set aside an award could be instituted before the award was filed. Under the present Act however such suits are abolished. Consideration whether such suits could be instituted before an award was filed would have depended naturally on the terms of Section 39, Specific Belief Act and are, in my view, not now relevant for the present position. A perusal of that case cited however shows, in my view, on the question of the right of a party to make an application under the old Arbitration Act (as distinct from a suit under the Specific Belief Act) to set aside an award before the award is filed, that the Court in that case proceeded on the assumption that it would be necessary, for a party wishing to make such an application to set aside an award to wait until the award is filed. Though this matter is not dealt with at any length the following sentence at p. 317 appears to me only capable of this interpretation.
The only question is whether they should have waited till the filing of the award in the Karachi Court and contested it by making an application under Section 14, Arbitration Act.
56. Having therefore nothing before us in the way of an authority for the proposition either under the old Act or under the old Schedule that an application to set aside the award could be made to the Court before the award was filed we have to decide the matter on an interpretation of the current Act of 1940. On this point there is a decision of this Court by McNair J. In that case he followed and relied on the previous decision of Chagla J., in the Bombay High Courtr My learned brother has already dealt in detail with the judgment of Chagla J. I respectfully agree that the terms of Article 156, Limitation Act should not be taken as in any way a test of when the right to make an application to set aside an award arises. Both McNair and Chagla JJ., however based their, decision on the further ground that the scheme of the present 1940 Act was such as to make it proper for a Court to hold that the application to set aside an award could not be made until the award is filed. Though there is no express provision to this effect in the Act of 1940 I respectfully agree with my learned brother and with McNair J., that on general grounds, since seisin of the matter is removed from the Court while the arbitration is pending, the proper event and point of time to be taken as that on which the Court regains seisin of the matter is, where an award has been made, the filing of the award. I desire however to put this conclusion only on general grounds and. not on any reading of the language of Section 31 such as was suggested in the judgment of Chagla J. For so far as the grammer of Sub-section 2 of Section 31 goes it is evident that the double alternative 'has been' or 'may be' is equally applicable to an 'award' and to the question referred to in the section regarding the 'validity, effect or existence of an award' as it is to an 'arbitration agreement.' The language of the section can be read as being equally correct if the legal position is, that an application to set aside an award can be made before its filing, as if it is, that it cannot. This therefore has to be decided on other reasons unconnected with the wording of this section. For myself I would also prefer to take the cautious course of leaving it open (for decision, in a case for the disposal of which such a decision i3 necessary) whether the words 'may be' in Sub-section 1 and the words 'may be' in Sub-section 2 are restricted to a meaning appertaining to jurisdiction, or whether the words 'may be' in either or in both of the sub-sections may not also have the colour of futurity.