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Nalini Ranjan Guha Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 124 of 1956
Judge
Reported inAIR1958Cal624
ActsArbitration Act, 1940 - Sections 14 and 30
AppellantNalini Ranjan Guha
RespondentUnion of India (Uoi)
Appellant AdvocateR. Choudhury, Adv.
Respondent AdvocateG.P. Kar, Adv.
DispositionAppeal dismissed
Cases Referred(H) and Akshoy K. Nandi v. S. C. Das and Co.
Excerpt:
- p. chakravartti, c.j.1. the only question involved in this appeal is whether the arbitrator made his award within the time extended to him by the court or whether, by making it after the expiry of such time, he made himself guilty of misconduct. the argument before us turned solely on that single question. mr. chaudhuri, who appeared for the appellant, did mention another count of misconduct without, however, pressing it. about that item of alleged misconduct, i shall have to say something later.2. as regards the point actually pressed before us, the facts are as follows. on 20-11-1950, the appellant, nalini ranjan guha, instituted a suit against the union of india on the original side of this court for the recovery of a certain sum of money, claimed as due to him on account of some work.....
Judgment:

P. Chakravartti, C.J.

1. The only question involved in this appeal is whether the arbitrator made his award within the time extended to him by the Court or whether, by making it after the expiry of such time, he made himself guilty of misconduct. The argument before us turned solely on that single question. Mr. Chaudhuri, who appeared for the appellant, did mention another count of misconduct without, however, pressing it. About that item of alleged misconduct, I shall have to say something later.

2. As regards the point actually pressed before us, the facts are as follows. On 20-11-1950, the appellant, Nalini Ranjan Guha, instituted a suit against the Union of India on the Original Side of this Court for the recovery of a certain sum of money, claimed as due to him on account of some work done. After the suit had made some progress, the Union of India made an application on 18-1-1951 for a stay of the suit on the ground that there was an arbitration agreement between the parties. Subsequently, on 3-4-1951, an application was made for a reference of the differences in the suit to arbitration and S. R. Das Gupta, J., directed a reference to be made with respect to so much of the claim as was within the contract in which the arbitration agreement was contained. After that order was made, the matter came to be dealt with by Bachawat, J., who, on 2-7-1952, appointed Mr. R. C. Dev to be the arbitrator. Mr. Dev declined the office and thereupon the late Mr. K. K. Basu was appointed. Mr. Basu entered on the reference, but shortly thereafter he died. Then, on the 27th of January, 1954, an order was made by Sarkar, J., appointing Mr. S. A. Masud, a member of the Bar, to be the arbitrator in the case. The order stated that the arbitrator was to make his award in writing and submit the same to the Court, together with all proceedings had, depositions recorded and exhibits filed before him within six months from the date of service on him of an office copy of the order of reference.

3. It appears that Mr. Masud found considerable difficulty in completing his enquiry and extensions of time were successively applied for and granted on numerous occasions. In 1955 alone, five such extensions had to be taken for and in the preceding year as well, the time had had to be extended, but on how many occasions it does not appear. The order of reference, as I have already stated, was made as long ago as on 27-1-1954, but even on 20-9-1955, the arbitrator had not done with the reference. As to the cause of that unusual delay, there are allegations and denials, but with that matter we are not here concerned. On 20-9-1935, the last application was made for an extension of time to make the award and the time was extended up to 31-12-1955. The order made on that date did not say that the time was being granted for making and submitting the award to Court, as the order of 27-1-1954, had done, hut merely said that the time to make the award was being extended.

4. On 31-12-1955, the last day of the period of the last extension granted to him, the arbitrator wrote out his award and signed it. We are informed that the 1st and 2nd of January were holidays. It was only on 3-1-1956, that the arbitrator notified the parties that he had made his award and, on the same day, he sent the award to this Court for the purpose of being filed. Then, on the 2nd of March, following, the appellant made an application for setting aside the award. His application was dismissed by Mallick, J., and against that order of the learned Judge he has appealed.

5. The appellant contends that although the arbitrator wrote out his award on 31-12-1955 and even signed it on that date, he could not still be said to have made his award within the time extended to him, because he did not make his award known till after the expiry o the period. According to the appellant, an award is not made when it is put into writing, nor made when it is signed by the arbitrator, but it is made only when the arbitrator puts it beyond his power to make any alterations in it He can, it is said, put it beyond his power to change the award in various ways, of which One way would he to inform the parties what his award was and another way would be to file the award in Court. So long, however, as he does not allow the contents of the award to pass beyond him and come to the knowledge of others and so long as he does not thus cause the power to change the award to pass out of his hands, he does not make the award in law. Even if he has made a record of his decision and has signed it, he has not made the award, if it is still within his power to make changes therein which, it is said, must be the case if he has not communicated the contents of his award to the parties, nor has filed the award in Court. In the present case, it is contended that between 31-12-1955 when the award was put into writing and signed and 3-1-1956 when the parties were informed of it and it was sent to this Court, it was within the power of the arbitrator to make whatever changes he might be minded to make. Since he retained the power to make such changes even after the time extended to him by the Court had expired and put an end to it only two days later, he, it is said, misconducted himself or misconducted the proceedings and consequently the award is liable to be set aside.

6. It is to be noticed that the appellant's argument is not that the award is an invalid or a void award, for the reason that it was made at a time when the arbitrator had no longer any authority to make an award. It is not contended that the jurisdiction of the arbitrator to make an award could be exercised only within the period that had been allowed to him and that after the expiry of that period and in the absence of any further extension granted to him, he could have no further authority to make the award which he had made. The appellant's argument has been presented to us merely on the basis that by not making the award in the sense contended for, the arbitrator had made himself guilty of misconduct.

7. I have said enough to indicate the ultimate basis on which the appellant's argument rests. According to his learned Counsel, the test as to whether an award has or has not been made is whether the arbitrator has or has not put it beyond his power to make changes in the award. That basis, it is said, has been accepted by the Courts and is to be found illustrated in several decisions, cited to us, to which I shall presently refer.

8. Before I take up the cases, I may point out that the reference in the present case was made under Section 23 of the Arbitration Act. It was a reference in a suit. Section 23 appears in Chapter IV of the Act, but it is provided by Section 25 that the provisions of the other Chapters shall, so far as they can be made applicable, apply to arbitrations under Chapter IV. The general principles laid down in the earlier sections of the Act as also the procedure prescribed by them will, therefore, apply, unless any of them is for some special reason inapplicable.

9. The provison for enlarging the time for making an award is contained in Section 28(1) of the Act, it states that the Court may, if it thinks fit, enlarge, from time to time, the time for making the award. The expression, it will be noticed, is 'making the award.'

10. As to when, in the view of the Act, an award is made, considerable light is thrown by Section 14 which deals with the signing and filing of awards. Sub-section (1) of that section, to quote only the material part, says that

'when the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof.'

Sub-section (2) of the section makes a further provision to the effect that the arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party, cause the award or a signed copy of it to be filed in Court. The section thus provides for four separate things, namely, the making of the award, the signing of it, the giving of notice to the parties of the making and signing and, lastly, the filing of the award.

11. The first in the sequence of acts which the section contemplates is the making of the award Signing comes next. If the language of the section is to be taken literally, it must be held that the making of the award is, in the view of the section, something distinct from the signing of it and that the making precedes the signing. The position thus is that even before an award is signed, it is already made. The communication to the parties of the fact of the making and the signing of the award comes still later and it is hardly disputable that before the communication is sent, the award must already have been made. If the award has not been made, no notice can obviously be given of the making of it, as the section requires. The filing in the Court, where filing is required, comes last. It would thus seem that if Section 14 is to be strictly construed, the communication of the making and the signing of the award to the parties and equally the filing of it in Court, either of which, according to the appellant, would complete the award and amount to the making of it, are no integral parts of the making of the award at all, but subsequent acts done in relation to the award, which has already been made. I am prepared to hold and I think it is right to hold, in agreement with an Allahabad decision on the old law, that signing, being the authentication of the award, cannot be separated from its making and that to the extent Section 14 appears to proceed on the basis of a mutual exclusiveness of the two, it ought not to be literally construed. But assimilation of signing to making would not show the appellant's view to be justified, nor remove the difficulty created for him by Section 14. Under the section, an award is made when it is written out or at least when it is written out and signed. In my view, Section 14 of the Act is sufficient to dispose of the appellant's argument that an award is not made in law till it is made known to third parties or at least till some step is taken with regard to it which makes it impossible for the arbitrator to make any alterations therein, whether by communicating the contents of the award to the parties or filing it in Court or in some other way.

12. Mr. Chaudhuri was fully sensible of the difficulty created for him by Section 14 of the Act and particularly the use of the word 'made' therein, but he invited us to consider the ancestry of the section and to hold that the word 'made' had not been used in the section in its strict grammatical or literal sense, but that its true connotation, as used in the section, comprised, not merely the physical making of the award, but also a declaration of its contents. He did not say, as he could not, that 'declaration' meant declaration to the parties, because if the award was not made till its contents were announced to the parties, there could be no point in the section providing for a notice to be given to the parties of the making and the signing of the award. They would already have known of the making. The way in which, according to Mr. Chaudhuri, the award was to be declared was to make its contents known in some way or other so that the arbitrator would no longer make the award different from what it had been declared to be.

13. I was unable to obtain from Mr. Chaudhuri any satisfactory answer as to the concrete form in which the declaration insisted on by him could be made. He was ultimately forced to concede that even if the arbitrator put the award in an envelope and dropped it into the Post Office for being carried to the Court or elsewhere, he would have declared it in a manner and so made it. That hypothetical case, Mr. Chaudhuri said, would satisfy the test he was laying down, viz., that the arbitrator must put it beyond his power to make any changes in the award. In my view, the contention of Mr. Chaudhuri that the word 'made' in Section 14(1) means made and declared' is not warranted by the language used. Nor do I see any reason for supposing that any concept of declaration must necessarily be involved in the concept of making the award, if a declaration means a declaration to third parties. If the making of an award involves any declaration at all, it can only be declaration in the sense of the arbitrator putting into a physical or visible shape the decision which was, prior thereto, reposing only in his own mind or, if I may borrow from my learned brother a phrase which he used in the course of our discussion, an objective presentation of what was so long only a subjective state of the arbitrator's mind. Declaring would, therefore, be bringing out into the open of what was formerly in the recesses of the arbitrator's mind, but such declaration cannot obviously be anything different from putting the award in writing and perhaps also the signing of it. I do not think that either the language of the Act or the reasons of the matter requires any other or further form of declaration in order that an award may be made in law.

14. Mr. Chaudhuri was at considerable pains to establish before us that the signing of an award was something entirely different from the making of it and that an award could be made, even though it had not been signed. It will be recalled that in the sequence of acts set out in Section 14, 'making' comes before 'signing' and the particular contention of Mr. Chaudhuri may, therefore, be said to he warranted by the language of the Act. But for the purpose of Mr. Chaudhuri's argument, he required to take the making of the award as further forward as possible and not to put it even before the signing and, therefore, it would prima facie appear that in insisting that there could be a making of an award even before its signing, Mr. Chaudhuri was arguing against himself. To be fair to him, however, his argument, as far as I could appreciate it, was that the signature of the arbitrator was not essential to the making of an award and that, on the one hand, an award could be made, although it had not been signed and, on the other hand, although an award had been written out and signed, it might not still be made. In order that it might be said to have been made, it would be necessary to establish, whether the award had been signed or not, that something had been done at the date of its alleged making which had made it impossible for the arbitrator to make any changes in it thereafter. I have already pointed out that the Act does not seem to proceed on that conception of the making of an award.

15. To turn now to the cases cited before us by Mr. Chaudhuri, they do not seem to me to carry the logic of the matter any further, though they undoubtedly contain statements which support Mr. Chaudhuri's contention before us. The decision of this Court in Ramji Ram v. Salig Ram, 14 Cal LJ 188 (A), may be disposed of shortly, because all that it laid down was that what constituted the completion of an award depended on the terms of the submission and the facts and circumstances of each case. The question before the Court was whether an award made by Sir S.P. Sinha, the Advocate General of the day, as an umpire was a valid award. It appears that the arbitration agreement provided for arbitration by two arbitrators and in the case of a difference between them, for arbitration by an umpire who was to be the Advocate General of the day, failing him, Mr. Garth and failing him, Sir S.P. Sinha. After the two arbitrators had, ostensibly at least, come to a decision, they drew up a memorandum of award and signed it, but they also asked the parties to furnish stamped paper on which the award was to be finally engrossed. When, after engrossment, the award was read over again, one of the arbitrators refused to sign it on the ground that he had misunderstood the meaning of what he was agreeing to. In those circumstances, the parties proceeded on the basis that the arbitrators had failed to agree and thereupon they referred the dispute to the arbitration of the Advocate General of the day, who happened to be Sir S.P. Sinha himself. The argument before the Court was that when the memorandum of the award was drawn up on a plain piece of paper and signed by the two arbitrators, the award had already been made and, therefore, there was no difference between the arbitrators which could justify a reference to an umpire. The Court held that it appeared from the circumstances that there was considerable misunderstanding between the arbitrators as to the meaning of certain words, particularly the word 'assets' as used in the award, and since that state of their mind was clear from the evidence, it could not be said that at the time when the memorandum had been drawn up on a plain piece of paper and signed by both the arbitrators, the award had been made. I do not think that any assistance can be drawn by Mr. Chaudhuri from this decision.

16. Nor do I think that any assistance can be drawn from the decision in Dasaratha Rao v. Ramaswamy Iyengar, 1955 Mad WN 832: (S) AIR 1956 Mad 134 (B), or the decision in Sudhir Kumar Chakravarty v. Bilasbati Debi, 45 Cal WN 223 (C). The contention in the first case was that the award not having been signed by one of the arbitrators and not being stamped and registered was not a valid award at all. The Court held that it was the making of the award which was crucial and not the signing of it and, therefore, the absence of the signature of one of the arbitrators would not invalidate the award. The Court also held that if the award was pronounced in time, as in their finding it was, a defect in the transcription of it or the lack of registration would not make it any the less an award. As no facts are stated as to how the award was pronounced, the case cannot be called in aid of Mr. Chaudhuri's proposition that it is the announcement of an award which amounts to or completes the making of it. The further finding of the Court that if the award was made in time, it was immaterial whether it was registered alter the expiry of the time allowed, is of no importance for the purpose of the case before us. Nor can any assistance be derived from the decision in the second case, because all that Sen, J., said was that the award before him having been declared in the presence of parties before it was signed, would take effect from the date of the declaration, because when the arbitrators declared the award, they had finally decided the question before them and published the decision to the parties, which was sufficient for the making of the award. As Section 14 expressly sets out signing as something different from making and in fact places 'making' before 'signing', the decision adds nothing to what the terms of the statute expressly say.

17. I may pause here for pointing out that the distinction between making and signing is not immaterial for the purpose of the case before us. In the present case, the award was both written out and signed within the time allowed to the arbitrator. The question before us, therefore, is not whether an award can be said to have been made even though it had not been signed, but whether an award which had been written out and signed by the arbitrator could be said at that stage to have been made.

18. I may now turn to three decisions cited by Mr. Chaudhuri which lend some support to his contention in the form of laying down certain general observations, The first case in order of time is Babu Lal v. Badri Lal, AIR 1919 Pat 74 (D). The arbitration agreement in that case provided that an award, in order to be effective, would have to be unanimous and the contention urged before the Court was that the award relied on in the case was not so. The contention was based on the fact that one of the arbitrators, while signing the award, had added against a portion of it the remark: 'I do not agree in this'. The respondent's contention was that this remark had been interpolated by the arbitrator concerned subsequently to the signing of the award and since, at the signing, all the arbitrators had signed without protest, the award was to be taken as a unanimous award and, therefore, valid. The High Court held that there had been no interpolation, but the remark bad been added by the arbitrator concerned at the time he had signed the award, so that the award was not imanimous. It was, however, also observed that even assuming that the remark had been added after the award had been signed, it was still not a unanimous award, because the arbitrators, although they might have signed an award, were not functus officio till the award had been communicated. The view of the Court, therefore, appears to have been that till an award was communicated, it could not be said to have been finalised and that till such finalisation, an arbitrator or any one of the arbitrators, when there were more than one, would be competent to make changes therein.

19. The next case in this group cited by Mr. Chaudhuri was the decision in Harbhajan Singh v. Mewa Singh, AIR 1928 Lali 753 (E). The facts were somewhat peculiar. The time for filing the award was extended by the Court to a certain 10th of April, but on that date it was represented on behalf of the arbitrator that his award was not yet ready. Thereafter, the Court granted a further extension o time and the award was filed within the time, so extended. It, however, appeared from the award itself that it had been signed on 9th of April, that is to say, one day before the date up to which time bad originally been extended by the Court and, in those circumstances, it was contended that since on the 10th of April an award was already ready, the further extension of time was illegal and the award filed on the basis of such extension was an invalid award. On the facts, the case is not of much importance, because it was held that on the representation that had been made to the Court, the extension had been properly granted and as to the question whether on the 9th of April the award had already been made, it was admitted by the parties that no award could be final till it was either pronounced to the parties or filed in Court. This was only an admission by the parties and not a part of the decision, but there are certain general observations towards the end of the judgment on which Mr. Chaudhuri particularly relied. Making of an award, it was said, includes the announcement of the award and an award cannot be deemed to have been made till it is announced and one way of announcing it would be by filing it in Court.

20. Both of these decisions were relied upon in the third case of the group, Harphool Singh v. Prabhu Dayal, AIR 1950 EP 266 (F). On the facts the case was similar to the case in AIR 1919 Pat 74 (D), because there also the contention was that the award was vitiated by interpolations. As in the Patna case, here also, the Court held that interpolation had not been proved, but it Was added that even if certain additions had been made to the award before it had been actually published, the award could not for that reason be held to be bad. In support of that view, reliance was placed on the proposition laid down in the earlier Lahore case to the effect that an award could not be said to have been made till its contents were communicated in some form or other.

21. The only two cases among those cited by Mr. Chaudhuri, which were cases under the present Arbitration Act, are 1955 Mad WN 832: ((S) AIR 1956 Mad 134) (R) & AIR 1950 EP 266 (F). That, how-ever, makes no difference. The predecessors of the present Act were the Arbitration Act of 1899 and the Second Schedule to the Code of Civil Procedure. Section 11 of the former is practically in the same terms as Section 14 of the present Act. As to the latter, clause 10 was in the following terms: 'Where an award in a suit has been made, the persons who made it shall sign it and cause it to be filed in Court' It will be noticed that the same distinction between making, signing and filing was made in the Code of Civil Procedure as well and the sequence of the three Acts was the same.

22. In my view, in spite of the expression of opinion in three of the cases cited by Mr. Chauhhuri, it must be held that the award in the present case was made on 31-12-1955. Having regard to the language of Section 14, I can find no reason for thinking and indeed, I find it impossible to hold, that anything more than the recording of the decision of the arbitrators and the signing of it by them is required to constitute its making. Even assuming, as the appellant contends, that in spite of the arbitrators putting their decision in writing and signing it, they remained competent to make changes in it till they put it out of their power to make such changes, I do not see it follows that in a case where no such changes were attempted, the award was not made when it was put into writing and signed. To give a homely example, suppose a painter is commissioned under a contract to execute a portrait by the 31st of December of a particular year and it is one of the conditions of the engagement that the work must be completed on or before that date; suppose further that the artist does all that he intends to do by way of executing the painting by the 20th of December and thereafter does nothing further. He would be undoubtedly at liberty to make changes or add further touches, if he wanted to, till the 31st of December, but if he feels no necessity of doing so and does not do so, could it by any means be said that he had not completed the portrait on the 20th? Simply because an arbitrator may be at liberty to make changes in award even after he has put it in writing and signed it, till he has not also published it in some way or other, it does not seem to me to follow, even on the assumption of such liberty, that where between putting the award into writing and signing it and publishing it in some form or other, the arbitrator docs not in fact make any change, he must still be held not to have made the award when he wrote it out and signed it and put it into the final shape in which it was subsequently published. It is not suggested in the present case that after the arbitrator had written out his award and signed it on 31-12-1955, he had made any changes between that date and the 3rd of January, 1956, when he informed the parties of his having made the award and sent the award to be filed in Court.

23. If I may refer to a decision not cited at the Bar, it appears to me that there is a case decided by this Court, where the facts were precisely similar. In Sri Lal v. Arjun Das, 18 Cal WN 1325: (AIR 1915 Cal 101) (G), the facts were that the Court granted time till 28-2-1914, for 'filing' the award. The 28th of February was a Saturday and the next day being a Sunday, the award was filed in Court on Monday, the 2nd March. It was contended before Chitty, J., that the award was invalid, because it had not been filed in time, but the learned Judge pointed out that the word 'file', as used in his order, was a mistake and that the proper word would be 'make'. That he obviously said, because Section 12 of the Indian Arbitration Act of 1899, under which he had made the order, provides for enlargement of time, not for filing the award but for making it. The question then being whether the award had been 'made' within the time allowed, it was found that the arbitrators had made an award on the 28th of February in Hindi and also signed the same, but instead of filing it on that day, they had caused it to be translated into English, partly on the following Sunday and partly on the 2nd of March, when the English award was filed. It was held in those circumstances that the Hindi award could well be taken to be the award made by the arbitrators and that award, which had been written out and signed on 28-2-1914, being a good award, the arbitrators had made an award within the time allowed. The parties were with the arbitrators and came to know what the award was only on Sunday, the 1st March, but on the 28th February they were not with the arbitrators and the award was not announced to them on that date. It is true that the decision rests on other considerations as well, but one of the grounds on which the arbitrators were held to have made an award within time was that when the Hindi award had been written out and signed, an award had been made. More or less to the same effect are the decisions in Debendra Nath Chatrerjee v. Sarbamangola Debi, 8 Cal WN 916 (H) and Akshoy K. Nandi v. S. C. Das and Co., 38 Cal WN 784 (I).

24. I am unable for the foregoing reasons to hold that the award in the present case was not made on 31-12-1955 and that it was made only on 3-1-1956, by which date the time extended to the arbitrator had already expired. In my view, on the facts of the case the award was made on 31-12-1955.

I may add that, in any event, I am not prepared to hold that the failure of the arbitrator to communicate the contents of his award or to file it by 31-12-1955, in addition to writing out and signing it, constitutes in the facts of this case even legal misconduct for which the award ought to be set aside. Since the repeal of [he Code of Civil Procedure of 1882, it has been the law that the time for making the award may be extended even after the time for making it has expired. Section 521 of the Code of 1882 provided that no award would be valid unless made within the time allowed by the Court. Clause 8 of Schedule II of the Code of 1908, however, provided that the Court might allow further time and, from time to time, either before or after the expiration of the period fixed for the making of the award, enlarge such period. The Arbitration Act of 1899 similarly provided that the time for making an award might from time to time be enlarged by order of the Court, whether the time for making the award had expired or not. The present Arbitration Act goes further. Whereas under its predecessor Acts, time could be extended even after the time for making the award had expired, but not presumably after an award had been made, Section 28 of the present Act adds that power also and provides that the Court may enlarge, from time to time, the time for making the award, whether the time for making it had expired or not and 'whether the award has been made or not''. It is thus obvious that the law has been increasingly liberal towards failures to make the award within the time limited by law or the order of the Court and that, as it stands at present, an award made out of time can be validated by the Court by extending the time even after the award has been made. I may also point out that whereas clause 15 of the Second Schedule of the Code of Civil Procedure included, among the grounds on which an award could be set aside, the ground that it had been made 'after the expiration of the period allowed by the Court', there is no express mention of that ground in Section 30 of the present Arbitration Act. In those circumstances, it will not, in my view, be correct to hold that an award must always and necessarily be set aside on the ground of misconduct, even when all that has taken place is a bare failure to make the award within the time granted by the Court and the making of it shortly after the expiry of such time. In saying what I have just now said, I am assuming that an award is not made till its contents are communicated in some form or other or till the arbitrators put it beyond their power by some means to make any changes therein. But the proposition which I still wish to insist on is that whatever the making of an award may mean, the bare failure of an arbitrator to make an award within the time limited by law or extended by the Court does not involve the consequence that the award, if challenged, must necessarily be set aside on the ground of misconduct, regardless of the other circumstances of the case. In the present case, it is not suggested, as I think I have already said, that the arbitrator made any changes in the award or made a fresh award after the 31st of December 1955. 'It was alleged in the petition that he had not in fact made the award even on 31-12-1955, because On that date he was not in Calcutta at all and not at the address where according to the award, it had been made. That allegation was not sought to be proved and was not relied upon, either before the learned Judge or before us. The single fact on which the whole contention of the appellant rests is the fact that by 31-12-1955, the arbitrator only wrote out and signed the award, but did not also either communicate its contents to the parties or file it in Court, though he gave the notice under Section 14(2) and filed the award on the next working day. I have already held that he did 'make' the award on 31-12-1955, but I would add that even if he did not make it on that date in the strict technical sense, I would not be prepared to set aside the award on the ground that he had been guilty of misconduct, although it is only legal misconduct with which I am here concerned. The only contention urged before us by the appellant must, therefore, fail.

25. The second count of misconduct was placed before us by Mr. Chaudhuri in a rather unusual way. He mentioned it, but, at the same time, was not prepared to attack the award on its basis. The allegation on which the charge was based is that a certain witness had been allowed by the arbitrator to volunteer a statement upon giving him an assurance, which he had asked for, that what he stated would not be treated as a statement on oath and would not go into the record of the proceedings. The witness, it was further alleged, had made a statement which was in the appellant's favour, but the arbitrator, after having permitted the witness to make the statement, prevented it from being included in the record of the evidence and himself did not use it in making the award. If these facts had been established, there might be sufficient ground for a strong argument that the arbitrator had misconducted the proceedings, but the allegation was not even sought to be established. The learned Judge has stated in his judgment that Mr. Chaudhuri 'did not press this point further than stating it''. He was, therefore, not invited to find whether the allegation was true or untrue, but, nevertheless, he discussed the ground on a purely hypothetical basis. With respect, if the point was to be considered at all, I do not think the proper approach to it was to consider what use the arbitrator might or might not make of the voluntary statement of the witness, even if it had formed a part of the evidence, but whether the arbitrator had at all acted properly in obtaining a statement or permitting it to be made in the manner alleged. The question, however, does not call for consideration, as the necessary facts have not been found and the appellant did not ask the learned Judge to find them. Before us as well, Mr. Chaudhuri, on being repeatedly asked by me as to whether he wished to press his second point as well, stated definitely that he did not desire to do so, although he added that he was just placing it before us. In those circumstances, I think no notice need be taken of the second count of misconduct.

26. For the reasons which I have endeavoured to give in some detail, the appeal must, in my judgment, fail. It is accordingly, dismissed with costs.

S.C. Lahiri, J.

27. I agree.


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