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Kanhayalal Dugar Vs. Ashkaran Kishanlal - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberAward Case No. 261 of 1955
Judge
Reported inAIR1957Cal658
ActsArbitration Act, 1940 - Section 28
AppellantKanhayalal Dugar
RespondentAshkaran Kishanlal
DispositionApplication allowed
Excerpt:
- .....for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award.'the court can enlarge the time for making the award either before or even after the time for making the award has expired. the court can enlarge this time either before the award has actually been made or even after the award has been made. the court can grant even more than one extension of time. what is necessary for this court in its proper exercise of discretion is to consider a case to be fit before it enlarges time. the policy of the law should however be always a consideration and that policy is that arbitrations should not be unduly prolonged and for that purpose the first schedule clause (3) of the arbitration act provides a period of.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by Kannayyalal Dugar for extending the time for making the award of the Tribunal of Arbitration of the Bengal Chamber of Commerce in Case No. 1001 of 1954 made on the 11th August, 1955 after the expiry of the time for making the same under Clause (3) of the First Schedule of Arbitration Act, 1940.

2. The dispute has a rather chequered history. It relates to a contract for sale of 2000 maunds of jute on the 23rd April, 1952. There were quarrels between the parties about the manner of delivery and the dispute was referred to the Bengal Chamber of Commerce who made an award on the 10th February, 1953. Thereafter an application was made by the respondent for setting aside that award and the award was ultimately declared a nullity on the 16th August, 1953. That was the fate of the first award. The matter was again referred to the Arbitration of the Bengal Chamber of Commerce. The Court was constituted at first on the 29th September, 1954 with Mr. Cornish and Mr. Kedarnath Bajoria as arbitrators. This Court of the Arbitrators entered on the reference on the 15th October, 1954. The buyer respondent filed his counter-statement objecting that the reference was bad and there was no proper reference and that an award should be made. On the 7th February, 1955 Mr. Cornish having gone out of India. Mr. Adamson was appointed in his place under the Rules of the Bengal Chamber of Commerce. On the 15th February, 1955 the re-constituted Court entered on the reference. Thereafter a meeting was held of the parties before the Arbitrators on the 11h March, 1955 and the arbitration proceeded. But soon thereafter on the 28th March, 1955 the respondent applied to revoke the authority of the Chamber and obtained an interim order for stay from this Court. The arbitration was thereafter stayed until the 13th June, 1955 when the respondent's application for revocation of authority of the Chamber of Commerce was dismissed. The result was that the time to make the award expired on the 15th June, 1955 if four months is taken from 15th February. 1955 when the Court of Arbitrators was re-constituted. In fact, the award was thereafter made on the 11th August. 1955. It is this award in respect of which extension of time is now sought on this application. Before the award was made there was a meeting on the 27th July, 1955 which was attended by the parties.

3. Court's powers under Section 28 to extend time are entirely discretionary and are not limited. Section 28 of the Arbitration Act, 1940 provides :

'The Court may if it thinks fit whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award.'

The Court can enlarge the time for making the award either before or even after the time for making the award has expired. The Court can enlarge this time either before the award has actually been made or even after the award has been made. The Court can grant even more than one extension of time. What is necessary for this Court in its proper exercise of discretion is to consider a case to be fit before it enlarges time. The policy of the law should however be always a consideration and that policy is that arbitrations should not be unduly prolonged and for that purpose the First Schedule Clause (3) of the Arbitration Act provides a period of four months.

4. The outstanding reason for which I shall extend the time in this case is that the Arbitrators were here prevented from making the award within four months by an order of stay from this Court. If the period of stay order at this Court for two months and a half from 28th March, 1955 to 13th June, 1955 is excluded, then the four months would expire by the end of August, 1955. The award, however, was made before then, having been made on the 11th August, 1955. I should, therefore, think that this is a fit and proper case where the time certainly should be extended at least to the date when the award was made on the ground that this Court by its own order had stayed the progress or the operation of the arbitration proceedings, and this Court at any rate should give the benefit of the time that the Arbitrators lost during that order of stay. That is the first ground on which I feel inclined that the time should be enlarged in this case.

5. The second ground is that even after thetime expired according to the respondent on 15thJune. 1955, the respondent appeared before theArbitrators at the meeting held on 27th. July, 1955without protest that the time for making theaward had already expired. I read the conductof the respondent in appearing before the Arbitrator even after the time for making the awardhad expired without any objection on the groundof time, as a further consideration in favour ofenlarging the time for the award.

6. The third ground on which the time in this case should be extended is that there is no objection to the merits of the award or even to the conduct of the arbitrators. It is a persuasive consideration before the Court that after all the time, expense and trouble in going to arbitration and actually having the award, regarding which there is no meritorious objection, it is proper to enlarge the time and make the award, the fruit of so much time, labour and expense, effective and not to frustrate it by refusing time.

7. I am therefore satisfied that the Court should exercise its discretion to enlarge the time for the award in this case on each of these three grounds. As there is first no fault of the arbitrators that the award in this case could not be made within the period of four months under Clause (3) of Schedule 1 of the Arbitration Act 1940, secondly as the respondent appeared before the Arbitrators after the expiry of time, without taking any objection as to time, thirdly, as there is no objection to the merits of the Award and fourthly as the Court's powers are discretionary under Section 28 of the Arbitration Act in the matter of enlarging the time for making the award, I enlarge the time in this case until the 11th August, 1955 when the award was made in this case.

8. There will, therefore, be an order in terms of Clause (a) of the Chamber Summons. I however, make no order as to costs of this application. The application is certified for counsel. There will also be judgment upon award with interest and costs.


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