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Johurimull Jugalkishore Vs. Kashiprosad Jhajharia - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtKolkata
Decided On
Reported inAIR1942Cal566
AppellantJohurimull Jugalkishore
RespondentKashiprosad Jhajharia
Cases ReferredMaqbul Ahmad v. Onkar Pratab Narain Singh
Excerpt:
- .....precedent to pronouncing judgment that the time for making an application to set aside the award has expired, or alternatively that, such application having been made, the court has refused it. the question is whether on 22nd december 1941 the time for making an application to set aside the award had expired. the period for making such an application is prescribed by article 158, limitation act, as amended by schedule 4, arbitration act, 1940. the article now prescribes 30 days from the date of service of the notice of filing the award. it is now conceded that the notice of filing the award was served on 21st november 1941. it is also conceded that the last day of the prescribed period would ordinarily be 21st december 1941. it would seem therefore that on 22nd december 1941,.....
Judgment:
ORDER

Panckridge, J.

1. This application raises an interesting and a not unimportant point o(limitation. The petitioner was a party to arbitration proceedings before the Tribunal of Arbitration of the Bengal Chamber of Commerce. On 29th July 1941 an award was made, under which the petitioner was ordered to pay to the respondents a sum of Rs. 2531 together with a sum of Rs. 313 as costs of the arbitration. On 22nd August, the award was filed in this Court. The petitioner at one time alleged that the notice of the filing of the award was never effectively served upon him, but he now concedes that this application must proceed on the basis that he was effectively served with the notice on 21st November 1941, On 22nd December 1941, the respondents made an application under Section 17, Arbitration Act, 1940, for judgment upon the award. The matter was in the list, and, when it was called, no one appeared on behalf of the petitioner to oppose. Accordingly judgment was pronounced in terms of Section 17.

2. Later in the day learned Counsel for the present petitioner presented a petition asking that the award should be set aside on various grounds. Learned Counsel stated that that day, that is to say 22nd December 1941, was the last day on which he could make the application. I directed that it should be noted as made on that date. There is an endorsement on the back of the petition which is as follows: 'Noted as made today. Notice returnable on 12th January 1942.' I will assume that the petitioner was not aware that judgment had been pronounced in terms of the award before the petition to set aside the award was presented. He has now applied for an order that the decree and judgment passed on 22nd December 1941 be recalled or set aside. His notice of motion is dated 19th January 1942, and made returnable on 16th February 1942. The petitioner admits that, unless he succeeds in setting aside the judgment and the decree made on 22nd December 1941, he cannot proceed with his application which is still pending, to have the award of 29th July 1941 set aside.

3. The only ground on which he asks that the judgment should be set aside is that it was made without jurisdiction. Under Section 17 of the Act, it is a condition precedent to pronouncing judgment that the time for making an application to set aside the award has expired, or alternatively that, such application having been made, the Court has refused it. The question is whether on 22nd December 1941 the time for making an application to set aside the award had expired. The period for making such an application is prescribed by Article 158, Limitation Act, as amended by Schedule 4, Arbitration Act, 1940. The article now prescribes 30 days from the date of service of the notice of filing the award. It is now conceded that the notice of filing the award was served on 21st November 1941. It is also conceded that the last day of the prescribed period would ordinarily be 21st December 1941. It would seem therefore that on 22nd December 1941, when the Court pronounced the judgment, the period had expired. However, counsel for the petitioner says that because of the provisions of Section 4, Limitation Act, the period had not expired, since 21st December 1941, being a Sunday, was a day on which the Court was closed. Section 4, Limitation Act, is as follows:

Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

4. Mr. S.R. Das for the respondents concedes that the noting of the application as made on 22nd December may be regarded as tantamount to its having been made on that day, but he says that the application was an incompetent one, as under the rules made by this Court under the Arbitration Act an application of this nature can only be made upon notice to the other party. I am not going to decide this point, because having regard to the view which I take on the point of limitation, there is no necessity for me to decide it. It may be Mr. Das is correct. On the other hand, the Court may have inherent power to entertain an application made without notice, if it is made within the prescribed period. Mr. S.R. Das's main point however is that the time for making the application to set aside the award had expired within the meaning of Section 17. He admits that by reason of the provisions of Section 4 the petitioner's application to set aside the award, assuming it to have been in order, could not have been dismissed as being out of time, but he points out that Section 4 does not extend the period in cases where the last date of the period is a day on which the Court is closed, but only gives to the party concerned the right to make the application on the day that the Court re-opens, although the period has in fact expired.

5. Mr. Das in this connexion calls attention to the difference between the scheme of Section 4 and the scheme of Section 14 of the same Act. Under Section 14 in certain circumstances certain periods are to be excluded in computing the period of limitation, and the distinction between the language used in the two sections has been commented on by the Judicial Committee in Maqbul Ahmad v. Onkar Pratab Narain Singh . Therefore it by no means follows because the petitioner had the right to make an application to set aside the award on 22nd December 1941, that the time for making that application had not expired within the meaning of Section 17.

6. In my opinion Mr. Das' contention is correct, and the privilege which Section 4 confers upon the petitioner did not prejudice the right of the respondents to obtain judgment in terms of the award on the expiry of 30 days from the date of the service of the notice. I accordingly consider that the Court had jurisdiction to pronounce judgment in terms o the award, and it is conceded that, if this is so, there are no grounds upon which I should be justified in recalling the order made in favour of the respondents on 22nd December 1941, or set it aside. The two applications, therefore, namely the application to set aside the award, and the application to recall the judgment and decree, must be dismissed with costs.


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