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The State of West Bengal Vs. L.M. Das - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 336 of 1970
Judge
Reported inAIR1976Cal406
ActsArbitration Act, 1940 - Sections 14(2) and 30; ;Limitation Act, 1963 - Schedule - Article 119; ;Constitution of India - Article 141
AppellantThe State of West Bengal
RespondentL.M. Das
Appellant AdvocateGopal Chakraborty and ;Pratibha Banerjee, Advs.
Respondent AdvocateM.N. Banerjee, ;A.C. Bhabra and ;P.K. Sen, Advs.
DispositionAppeal dismissed
Cases ReferredFirm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd.
Excerpt:
- .....the arbitrator. after taking into consideration all materials on the record as stated in the award, the arbitrator awarded only rs. 1,63,000/- in favour of the respondent. it is true that no rate has been specified by the arbitrator, but it is not the law that the arbitrator is bound to specify the rate at which he has awarded damages. hence, there is no merits in this contention of mr. chakraborty. 12. on rs. 5,000/- the contention of mr. chakraborty was that this amount was awarded on the ground of failure on the part of the appellant to hand over the site free from any hindrance to the respondent. but that it is not so is crystal clear from the award itself. this amount was awarded for extra cost incurred by the respondent for working during rainy season due to less outturn and.....
Judgment:

Deb, J.

1. This appeal is directedagainst the judgment and order dated June 5, 1970 dismissing the application made by the appellant under Section 30 of the Arbitration Act, 1940 for setting aside of the award dated December 24, 1968, mentioned in the petition.

2. The respondent executed certain constructional work for the appellant under and in relation to the contract between them. Thereafter, disputes and differences arose between them regarding payment. Those disputes and differences were referred to the arbitrator in terms of the arbitration clause contained in the said agreement.

3. The application was dismissed by the learned trial Judge on three fold grounds: (i), the application was barred by limitation; (ii), there was no error on the face of the award; and (iii), there was no merits in the charge of bias and legal misconduct levelled against the arbitrator.

4. The argument before us was solely confined to Rs. 1,63,000/- and Rs. 5,000/- awarded in favour of the respondent, apart from the question of limitation. The facts relating to limitation are as follows: On June 16, 1969, the appellant received a copy of a letter dated June 5, 1969, written by the Registrar, Original Side of this Court, informing the parties that the award had been filed in court on June 5, 1969; thereafter, on July 14, 1969, the notice under Section 14(2) of the Act was served on the appellant; and on August 12, 1969, the appellant took out the notice of motion for setting aside the award.

5. On limitation, Mr. Gopal Chakraborty, the learned counsel for the appellant, has argued before us that the application was not barred under Section 119 of the Limitation Act, 1963, inasmuch as the letter dated June 5, 1969, was not a notice at all, for it was not in accordance with the form, of notice prescribed by this court under the Arbitration Act andtherefore the time did not begin to run from June 16, 1969, on which date the said letter was received by the appellant He also argued that since the notice under Section 14(2) of the Act was served on the appellant on July 14, 1969, and the notice of motion was taken out on August 12, 1969, the application was not time barred.

6. On merits, Mr. Chakrabortty contended as follows: The award was bad on its face inasmuch as the arbitrator has awarded Rs. 1,63,000/- as damages without specifying the rate; the award for Rs. 5,000/- was also bad on its face because, according to Mr. Chakrabartty, the arbitrator has rejected the respondents case on it; the arbitrator has imputed personal knowledge in awarding Rs. 1,63,000/- and therefore he was guilty of legal misconduct; and the arbitrator was also biased inasmuch as he has made a lump sum award of Rs. 1,63,000/-without specifying the rate.

7. We are, however, not impressed by his contentions. The question of limitation is fully covered by the decision of the Supreme Court in the case of Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Nigashetti, reported in : [1962]2SCR551 , and followed by late Mr. Justice Arun Kumar Mukherjea in his judgment dated February 11, 1965, in Award Case No. 263 of 1962 intituled Jamunalal Janakilal v. Budge Budge Jute Mills Limited, of this Court. It is a 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 the petitioner is 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.

8. It has also been contended by Mr. Chakraborty that in that case the Supreme Court did not consider the rules of this court framed under the Arbitration Act regarding the form and service of notice under Section 14(2) of the Act and therefore that decision could not apply in the facts and circumstances of the instant case before us. He has also argued that the said case relates to an award made in an arbitration in the suit, whereas the instant award before us was made in an arbitration without the intervention of the court and therefore the said decision of the Supreme Court had no application to the facts and circumstances of the case. But there is no merits in these contentions.

9. The law laid down by the Supreme Court in that case is binding on this Court even if certain aspects of the matter were not considered by their Lordships of the Supreme Court; vide, Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur, : AIR1970SC1002 . Further, the procedure after the publication of all awards is the same under the Arbitration Act and therefore the purported distinction made by Mr. Chakrabarty does not make any difference whatsoever.

10. The award was filed on June 5, 1969, in this Court and ' the appellant came to know of it on June 16, 1969. Hence, it must be held that the application is time-barred under Section 119 of the Limitation Act, 1963 and it has been rightly dismissed.

11. Now as to merits. The respondent claimed Rs. 4,57,307/- for doing extra work due to heavy percolation of water etc. The parties adduced evidence, both documentary and oral, before the arbitrator. After taking into consideration all materials on the record as stated in the award, the arbitrator awarded only Rs. 1,63,000/- in favour of the respondent. It is true that no rate has been specified by the arbitrator, but it is not the law that the arbitrator is bound to specify the rate at which he has awarded damages. Hence, there is no merits in this contention of Mr. Chakraborty.

12. On Rs. 5,000/- the contention of Mr. Chakraborty was that this amount was awarded on the ground of failure on the part of the appellant to hand over the site free from any hindrance to the respondent. But that it is not so is crystal clear from the award itself. This amount was awarded for extra cost incurred by the respondent for working during rainy season due to less outturn and not on account of the failure on the part of the appellant to hand over the site free from any hindrance. Hence, there is no substance in the contention of Mr. Chakraborty.

13. There is also no merit in his contention relating to the alleged legal misconduct and the bias of the arbitrator. There is no allegation in the petition that the arbitrator has imported his personal knowledge in awarding Rupees 1,63,000/-. There is also nothing in the award even to lend any support to this unmeritorious contention. That apart, these grounds were not at all taken in the petition and therefore Mr. Chakraborty is not entitled to argue it. The contentions of Mr. Chakraborty that the arbitrator was biased inasmuch as he has made a lump sum award of Rs. 1,63,000/- without specifying the rate or its basis, has no substance. The arbitrator is not bound to give any reason for making the award. He is also entitled to make a lump sum award; vide. Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, : [1967]1SCR105 .

14. Having disposed of all thecontentions of Mr. Chakraborty we would like to record here that, as this appeal is bound to fail, it is unnecessary for us to express any opinion on the contention of Mr. Bhabra that the petition on its face was demurrable in the absence of particulars relating to allegation of misconduct and bias of the arbitrator including the facts showing the invalidity of the award.

15. The appeal is dismissed. The interim orders are also vacated. Each party shall pay and bear its own costs. Certified for two Counsel.

Dipak Kumar Sen, J.

I agree.


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