1. The matters in dispute in this suit were by agreement referred to arbitration. The present application by the defendants is that the award of the arbitrator which was filed in this Court shall be taken off the file on the ground that filing took place after the period of limitation provided in the Arbitration Act of 1940. The following facts require reference. The suit was filed in August 1940, the claim by the plaintiffs being for a sum of about Rs. 2800. On 23rd April 1941 it was referred to the arbitration, of one Johormull Nopani, who made his award in favour of the plaintiffs for the sum of Rs. 2173 and costs on 16th July 1941, on which date he notified the parties that he had duly made his award. The following day the plaintiffs requested the arbitrator to file the award in Court, and he sent it for this purpose to the Court, together with Rs. 3 in cash for the filing charges. On 19th July by a document (inadvertently dated 11th July) the parties were informed by the Court that the award would be filed upon payment of the requisite stamps. On 21st November 1941 stamps of the value of Rs. 3 were affixed and the award was filed. The contention on behalf of the defendants is that the award having been published and notification thereof given by the arbitrator on 16th July 1941 it should have been filed within 90 days of that date which period had expired before 21st November 1941 when filing actually took place.
2. Section 14(1), Arbitration Act (1940), provides that when an arbitrator has made his award he shall sign it and notify the parties in writing of his making and signing it and of the fees and charges payable. Under Sub-section (2) an arbitrator shall, at the request of any party to the arbitration agreement or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration, cause the award together with other documents to be filed in Court. Article 178, Limitation Act 1908, was amended by the Arbitration Act and it now provides 'under the Arbitration Act (1940) for the filing in Court of an award' a limitation period of 90 days from the date of the service of the notice of making the award. Originally this article provided a limitation period of six months from the date of the award, and the article was phrased thus:
Under the same Code (Code of Civil Procedure, 1908) for the filing in Court of an award in a suit made in any matter referred to arbitration by order of the Court or of an award made in any matter referred to arbitration without the intervention of a Court.
3. A file has been produced recording the matters which transpired in this Court from the date when the award was sent by and received from the arbitrator on 19th July 1941. No objection was taken to reference being made to it. It would seem that a clerk in the office of the Court did not file the award because he considered some depositions or other documents had not been forwarded but it remained in the Court office. It was not until the month of November that the necessary stamps were purchased with the Rs. 3 sent by the arbitrator and the award was duly filed. It is quite clear that the plaintiffs took all steps which the Arbitration Act required by requesting the arbitrator to forward the award to the Court for it to be filed. The arbitrator complied with the request and remitted with his award the necessary sum for the fees. On account of reasons for which neither party was responsible or to blame the actual act of filing was not carried out until four months after the award had been received, but the defendants make this application on the ground that the award was not formally filed until after the expiration of 90 days when the parties were informed of it being made by the arbitrator. Reliance has been placed upon the wording of Article 178, Limitation Act as amended by the Arbitration Act, and counsel for the applicant contends that this article prevents the actual Act of filing the award more than 90 days after notice of it having been given. Article 178, Limitation Act, in included in the third division of the articles which is headed 'applications.'
4. In my view the limitation provided by Article 178 and all other articles in the third division, is in respect of applications for the acts to be done in respect of which the articles provide and is not a period of limitation in respect of the Act itself. This matter was considered by this Court in Roberts v. Harrison ('81) 7 Cal. 333 in the year 1881 when the Limitation Act of 1877 was in force in which Article 176 corresponded to Article 178, Limitation Act 1908 prior to its amendment by the Arbitration Act 1940. In 1881 the period of limitation was six months. An award in an arbitration was published on 29th September 1880 and was filed in Court on 29th April 1881, more than six months after the date of publishing the award, and the same objection was taken as is made in this application. It was held that the limitation period applied to applications for the award to be filed and not for the filing of the award itself. Learned Counsel on behalf of the applicants sought to distinguish the position which arises now since the amendment of Article 178, Limitation Act, 1908 inasmuch as the article as previously phrased commenced with the words 'under the same Code,' namely the Code of Civil Procedure whereas now the article commences with the words 'under the Arbitration Act.' I can see no difference in the effect of the article now as it was previous to its amendment. Applications can and no doubt will be made under the Arbitration Act to obtain the filing of an award. Section 14(2) of the Act provides that the arbitrator shall at the request of any party or if so directed by the Court cause the award to be filed. If an arbitrator fails to comply with a request made to him by a party then the obvious remedy for the party is to apply to the Court to obtain an order directing the arbitrator to file the award. That would be an application under the Arbitration Act instead of an application under the Code of Civil Procedure as previously, but the nature of the application would be identical. Article 178, Limitation Act, as it is now worded requires an application of the nature to which I have referred to be made within 90 days of the notification of making the award and it still appears in the third division of the schedule to the Limitation Act, all articles in which division apply to applications.
5. In my view the period of limitation provided by Article 178 as now worded refers to applications, made under the Arbitration Act. In the present case, there was no application made by either party to obtain the filing of the award. The award was in fact filed more than 90 days after it was made although it had been sent to the Court for that purpose long before the Actual Act of filing took place and filing was accomplished without any application being made to the Court for this to be done. Having come to the conclusion that the provisions of Article 178 do not apply to the award which was in fact filed, it is not necessary for me to discuss or consider the further contention by learned Counsel on behalf of the applicants that the fee payable to file the award should have been remitted in stamps instead of in cash. Even if I were disposed to accept this contention nevertheless the application would fail inasmuch as there has been no Infringement of any period of limitation which prevents the filing of this award. I am gratified that I am able to arrive at the decision which I have inasmuch as the application is entirely devoid of all merits, it will be dismissed with costs.