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Sova Chand Bhutoria Vs. Hurry Bux Deora and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.46
AppellantSova Chand Bhutoria
RespondentHurry Bux Deora and ors.
Cases ReferredNobin Kally Dabee v. Ambica Churn Banerjee
Excerpt:
limitation act (ix of 1908), section 12, schedule i article 158 - award filing of, what amounts to--'court,' meaning of--application to set aside award--limitation--time spent in obtaining copy of award, exclusion of. - .....office. if time ran from the 22nd november, five days must be excluded for the obtaining of a copy. copy was not obtainable on the application of the 3rd september till the 27th november so that these five days must be excluded and, therefore, the application of the 6th december was in time. though the result at which i have arrived is the same, i do not agree with the opinion expressed in the judgment under appeal that time commenced to run from the 27th november when a copy of the award was first obtainable. time on this hypothesis commenced to run on the 22nd november when the award was filed, but under section 12 of the limitation act in computing the period of limitation prescribed for an application to set aside an award the time requisite for obtaining a copy of the award.....
Judgment:

Woodroffe, J.

1. The facts are fully set forth in the judgment of Greaves, J., which I need not repeat. It is sufficient to say that there was an award in an arbitration made in a suit and that this award was set aside by the Court. When it was set aside, Counsel for the party now appellant stated at the Bar that having considered the materials before him, he could not resist the order which the plaintiff sought and which was in fact made. A review of this order was then asked for by the appellant on the ground that the application to set aside the award was barred by limitation under Article 158 of the Indian Limitation Act (1908), more than 10 days having elapsed since the date when the award was submitted to the Court. This involves a consideration of the question of the meaning of the words 'submission' and 'Court'.

2. In the appeal it is contended on the authority of the decision of Harington, J., in the case reported as Nobin Kally Dabee v. Ambica Churn Banerjee 5 C. W. N. 813, that the time from which limitation runs is the date on which the award is received by the Registrar (in this case the 10th October 1917), and not the date on which the award is filed (in this case the 22nd November). Assuming that this decision is correct, it is not established that the application to set aside the award was barred, for the respondent is entitled to exclude the time requisite for obtaining a copy of the award. An application for copy was made on 3rd September. This application was premature in that no award had then been received. When, however, it was received on the 10th of October, the application still subsisting took effect and in fact it is found that it was on the strength of this application that a copy was subsequently given. The question then is what was the time 'requisite.' From the 10th October to the 17th November the Court was closed and on the 22ad November the award was filed.

3. A copy could not under the rules be given of the award until it was filed and from 22nd to 27th November was taken up in supplying a copy of the award previously filed. There is no difficulty here, unless it is shown that it was the duty of the respondent to file the award and that he could and should have done so between the 17th and 22nd November.' But the duty of the respondent in this respect is not, I think, made out. No provision to that effect has been shown us and on the contrary rule 10, Schedule II, of the Civil Procedure Code provides that the arbitrator should cause the award to be filed and notice of the filing shall be given to the parties. It cannot be said, therefore, there was any laches and the time during the period 10th October and 27th November should be excluded. It is not, as the learned Judge holds, that time commenced to run from the 27th November, but it commenced to run (on this hypothesis) from the 10th October but the time requisite for obtaining a copy must be excluded.

4. I am not, however, at present satisfied that the decision of Harington, J., is correct.

5. Having regard to the aforegoing facts it is not necessary finally to decide the matter, but it seems to me that the word Court' in Article 158 of the Limitation Act means 'Court' and not its Registrar, and 'submission' means submission to the Court, which again according to Schedule II, Section 10, of the Civil Procedure Code is to be done by filing the award in Court. I feel a difficulty in holding with Harington, J., in Nobin Kally Dabee v. Ambica Churn Banerjee (1) that time runs not from the time the award is filed in Court but from the time it arrives at the Registrar's Office. If time ran from the 22nd November, five days must be excluded for the obtaining of a copy. Copy was not obtainable on the application of the 3rd September till the 27th November so that these five days must be excluded and, therefore, the application of the 6th December was in time. Though the result at which I have arrived is the same, I do not agree with the opinion expressed in the judgment under appeal that time commenced to run from the 27th November when a copy of the award was first obtainable. Time on this hypothesis commenced to run on the 22nd November when the award was filed, but under Section 12 of the Limitation Act in computing the period of limitation prescribed for an application to set aside an award the time requisite for obtaining a copy of the award shall be excluded.

6. Rule 1, Chapter XXIII, appears to have been passed after Harington, J.'s judgment and from its wording seems to have been based on that decision. Rule 10 of Schedule II of the Code was Section 516 of the earlier Code in force prior to the judgment of Harington, J. This rule 1 does not appear to be in conformity with the provisions of rule 10, Schedule II of the Code, which provides for the arbitrator causing the award to be filed and for notice being given to the parties. It does not say anything about submission to the Registrar for the purpose of being filed, notice by the Registrar and so forth. If then time commenced to run either en the 10th October or 22nd November, it does not appear that the application was barred. As regards the contention that if the argument as to limitation fails the Court should have allowed the evidence of the arbitrator to be given when the application to set aside the award was made, Counsel for the defendant said that having considered the materials before him he could not resist the order which the plaintiff sought. This case, therefore, is not one upon which the appellant should be allowed at this stage, further enquiry on the facts as to the merits of the case. The allegations as to the alleged misconduct on the part of the arbitrator are not satisfactorily answered in the affidavits filed on behalf of the appellant and in my opinion the appeal fails and should be dismissed with costs.

Sanderson, C. J.

7. I agree.


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