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Bhola Nath Mallick Vs. Mahadev Mallick - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 950 of 1950
Judge
Reported inAIR1952Cal226,56CWN223
ActsLimitation Act, 1908 - Article 158; ; Arbitration Act, 1940 - Section 14(2)
AppellantBhola Nath Mallick
RespondentMahadev Mallick
Appellant AdvocateHiralal Chakravarty, Adv.
Respondent AdvocateSubodh Kumar Bhattacharya, Adv.
Cases ReferredSarojbala v. Jatindra Nath
Excerpt:
- .....bhola nath mullick that the objection was barred by time and cannot be entertained by the court.an award filed by arbitrators.3. the learned subordinate judge held that the plea of limitation could not be entertained.4. to appreciate the poin't in issue we may set out some of the relevant facts in this connection. the plaintiff-petitioner originally filed an application under section 28 of the arbitration act pleading that the dispute between him and the defendant mahadev had been referred to the arbitration of two persons but that the said arbitrators had not filed their award within the specified time. he accordingly prayed that the court might extend the time for the filing of the award with retrospective effect as the stipulated time had expired already on february 6, 1946. mahadev.....
Judgment:

R.P. Mookerjaee, J.

1. This is a petition for revision of an order passed by the Subordinate Judge, 5th Court, Alipore, overruling an objection filed by the defendant opposite party to.

2. The Award in question was filed by the arbitrators on September 21, 1949 in a pending proceeding in T. Section No. 182 of 1948. One of the defendants, Mahadev Mullick, who is the opposite party in this Court, filed an objection, on December 17, 1949. The preliminary objection was taken by the plaintiff Bhola Nath Mullick that the objection was barred by time and cannot be entertained by the Court.

an award filed by arbitrators.

3. The learned Subordinate Judge held that the plea of limitation could not be entertained.

4. To appreciate the poin't in issue we may set out some of the relevant facts in this connection. The plaintiff-petitioner originally filed an application under Section 28 of the Arbitration Act pleading that the dispute between him and the defendant Mahadev had been referred to the Arbitration of two persons but that the said arbitrators had not filed their Award within the specified time. He accordingly prayed that the Court might extend the time for the filing of the award with retrospective effect as the stipulated time had expired already on February 6, 1946. Mahadev Mullick, who is the defendant, filed an objection to such extension of time. On December 11, 1948, the Miscellaneous Case. which had been registered on the filing of the application under Section 28 of the Arbitration Act was struck off and the application already filed was registered as a plaint. Though Mahadev had appeared in the earlier stage during the pendency of the Miscellaneous Case he did not enter appearance after the application was registered as a plaint. The arbitrators as already stated filed the Award within the time fixed by the Court in T. S. No. 182 of 1948.

5. After the filing of the Award in Court a notice purporting to be under Section 14(1) of the Arbitration Act was issued in September 1949 Mahadev Mullick received that notice on October 10, 1949. No formal notice was given to the parties about filing of the award but on October 28th, 1949, Mahadev, coming to know of the filing of the award, made an application in Court for permission to inspect the Award so that he might file an objection.

6. Under Article 158 of the Limitation Act an application to set aside the Award is required to be filed within 30 days 'from the date of the service of the notice of filing of the Award'.

7. As stated already only the notice as required under Section 14 (1) of the Arbitration Act was issued by the Arbitrators in this case. The notice that the Court is required to issue to the parties under Sub Section (2) of Section 14 after the filing of the Award, was never issued. Mahadev, however, had from some source or other, knowledge about the filing of the Award and that was on or before the 28th October, 1949 when he applied for permission to inspect the Award, and was so permitted. The objection to the Award was filed by Mahadev on December 17, 1949, beyond 30 days, from the date of that filing of the Award as also from his date of) knowledge that the Award had been filed.

8. On behalf of the plaintiff petitioner it is contended that 30 days would begin to run at least from the date when Mahadev knew that the Award had been filed.

9. The provision in the Limitation Act fixing a time limit for the filing of a petition for setting aside an Award has varied from time to time.

10. In the Limitation Act 1871, 10 days time was allowed under Article 155 from:

'When Award is submitted to the Court; and notice of the submission had been given to the persons and in the manner prescribed by the High Court.'

11. In the Act of 1877 the corresponding provision was in Article 158 and the same period of 10 days was to commence from after 'When the Award is submitted to the Court'.

12. Under Article 158 as was introduced in the Act of 1908 by the Repealing and Amending Act 18 of 1919, 10 days time was allowed from 'the date of service of the notice of filing of the Award.'

13. It is unquestionable that under Article 158 of the Act of 1877 time was to run from the date when the Award was filed in Court. There was no scope for any argument that the starting point would be something different. Before the amendment of 1940 it was held in a series of decisions that time would begin to run from when notice of the filing of the Award given to the parties, that is, when such notice was received by the party ('Mohammed Tahsin v. Basant Rai', : AIR1930All477 The Allahabad and Lahore view was that time would not begin to run even if the party had obtained knowledge from other sources about the filing of the Award - time would run only from the date when the Court gives notice. ('Chaturbuj v. Ganeshram', 20 All 474; 'Gurdittamal v. Firm of Basanta Mal Pannalal', AIR (12) 1925 Lah 619 (1) ).

14. A distinction, however, was made where an award is filed in Court by the parties themselves and at that stage the Court intimates that objection is to be filed within a particular date. Intimation sent by the Bench Clerk to the party's lawyer is a sufficient notice for the starting of limitation : 'Sarojbala v. Jatindra Nath', : AIR1927Cal619 Where a lawyer initials the order-sheet wherein is recorded an order by the Court that notice be given to the parties it amounts to a waiver by the party to any other formal notice 'Bholanath Roy v. Batakrishna Roy', AIR (14) 1927 Pat 135.

15. It has been consistently held that notice of the filing of an Award if given to a pleader or an agent of the party would also be sufficient under this article. 'Sarojbala v. Jatindranath' : AIR1927Cal619 'Bholanath v. Bata Krishna' AIR (14) 1927 Pat 135 (supra); 'Valchand Deepchand v. Gulba Lakshman', : AIR1926Bom312 'Gayan Singh v. Harbilas', : AIR1930All711

16. It may be noticed that provisions for the service of notice on the parties were different in the old Arbitration Act and the Code of Civil Procedure S.ch. II. Under the Repealed Section 11(2) it was the duty of the Arbitrator or umpire to give notice. Under para. 10 of Sch. II of the Civil P. C. the notice was required to be given by the Court. This provision in para. 10 was held to be a mandatory one. In 'Mairamjan Bibi v. Ash Raddi', 43 Cal W N 924, it was observed that

'Under Article 158 of the Limitation Act it is only when the award is filed and notice of the award is duly given to the parties under para. 10, Sch. II 'mentioned above that the parties have to make application for setting aside the Award within 10 days from the date thereof.'

The Award in that case had been filed on January 2, 1936 and on that date the Court recorded an order that the Arbitrator having filed the Award the case was adjourned to 13th January 1936 for final disposal - 'parties to file objection, if any, in time'. In 1936 the period within which objection could be filed was limited to 10 days only. In this case no notice was either served on the parties or was the order itself shown to the respective pleaders, far less their signatures obtained. Two of the defendants appeared on the 13th January and prayed for time to file objections to the Award. These defendants did not file any objection within the next date fixed and a decree was passed on the basis of the Award on the 20th January 1936. Two other defendants filed an appeal and an objection based upon the non-service of the notice under para. 10 was given effect to.

17. As pointed out already that under Article 158 in the Act of 1908 as amended by the Arbitration Act 1940 4th Schedule the period of limitation is 30 days to run from the date of the service of the notice of filing of the award. No doubt the Court has no power to pass a decree on an award unless notice is given to the parties to file objections 'Mairamjan Bibi v. Ash Raddi', 43 Cal W N 924. But as observed in 'Sarojbala v. Jatindra Nath', 45 Cal L J 458, a notice to a pleader of the party as to filing of award in Court though communicated but not received by the party personally was a sufficient compliance with the provisions contained in para. 10 of Sch. 2 with Order 3 Rule 5 of the Civil Procedure Code. Although the Bench Clerk had communicated the fact of the filing of the award of the arbitrators to the pleader though no signature was obtained on the order-sheet that would be deemed to be a sufficient compliance with the mandatory provision referred to above. The importance of the provisions about service of notice is that the parties may apply to the Court within 30 days of such service of notice for remitting or for setting aside the award. If the party is not only already cognisant of the filing of the award but has applied to the Court for facilities to examine the award filed there will be no necessity for serving such a party again. In the present case the party in question applied to Court for leave to examine the award and for time to file objections. Had the party not filed the aforesaid application there could not have been any question of that party being barred by lapse of time. Limitation would not begin to run. Mandatory provisions contained in Article 158 of the Limitation Act as it now stands becomes unnecessary for strict application when the party has already appeared in the case.

18. It may be a debatable question whether proof of knowledge of the filing of the award from extraneous source would be sufficient compliance of the mandatory provision contained in Article 158 or not. However, defendant having appeared in Court there is no further necessity of serving him with notice.

19. There is no explanation why after the defendant had applied on the 28th October 1949 to Court for permission to inspect the award the objection was not filed until 17th December 1949 more than 40 days after such appearance in Court. The materiality of the service consist in the fact that a party has been properly made aware of the matter contained in the notice. The Civil P. C. provides for the service of notice in the usual way on the defendant of respondent as the case may be after a suit or an appeal respectively is filed. If the defendant or the respondent enters appearance service becomes unnecessary.

20. Reliance however is placed on the language used in the third column in Article 158 of the Limitation Act namely 'the date of service of the notice.' This change in the language was effected to avoid the doubt which had arisen on the earlier provision which required a notice to be given. Whether it be under the earlier provisions or; the provisions now contained in Article 158 the date when a party, entitled to notice, himself enters appearance in the proceedings will be deemed to be the date of the service of notice of the filing of the award. We need not enter into the evidence to find out whether such person had prior knowledge of the filing of the award or not. The defendant himself by entering appearance makes it unnecessary for having a separate notice served on him.

21. If this be not the correct interpretation on the special facts of this particular case the position would be that a person entitled to notice may appear in the proceedings and not file the objection at all. What new fact would have been brought to his notice by having a notice served on a person who is already appearing in the proceedings?

22. In this view it must be held that the objection filed by the defendant on the 17th December 1949 was barred by limitation. This rule is accordingly made absolute with costs and the order passed by the learned Subordinate Judge on the 18th April 1950 is set aside. The Court will now proceed to deal with the award according to law.

Guha, J.

23. I agree.


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