Gauhati High Court
National Insurance Co. vs Amal Kanti Das on 14 May, 1997
Equivalent citations: AIR1998GAU1, AIR 1998 GAUHATI 1, (1997) 4 CURCC 343, (1997) 2 GAU LR 261, (1998) 1 ARBILR 249
JUDGMENT H.K.K. Singh, J.
1. This appeal under Section 39 of the Arbitration Act, 1940 is against the judgment and decree dated 11-4-1994 and 16-4-1994 respectively passed by the learned Asstt. District Judge, Court No. 1 in Title Suit (Arbitration) No. 109 of 1993 rejecting the application of the present appellant for setting aside the award and thereby making the award rule of the Court.
2. The appellant is the insurerof the respondent who is dealing in the business of printing, publishing and selling of books etc. under the name and style "M/s. Saraswati Book Depot" 28 Akhaurah Road, Agartala. On 5-7-1991 the shop of the respondent was ransacked and damaged by a group of students and some of the books and articles were also taken away. The respondent reported the matter to the police and also made a claim to the appellant-Insurance company as per terms of The insurance policy being No. 203000/ 3106259. As per report of a Surveyer appointed by the appellant the loss was estimated at Rs. 18,700/-. As the respondent did not accept the report, the matter was referred to arbitration in terms of the agreement. Mr. S. Roy, Advocate was appointed Arbitrator by the respondent and Sri B. Bhattacharjee, Advocate was also appointed Arbitrator by the Appellant. As the two Arbitrators failed to arrive at a concensus decision, the matter was referred to the Umpire as per the terms of the agreement. Ultimately the Umpire made the Award on 16-8-1993 and same was submitted to the Court on 22-9-1993. On receipt of the notice of filing of the Award the appellant filed an application under Sections 30/33 of the Arbitration Act for setting aside the Award and the learned Assistant District Judge, No. 1 by his Judgment dated 11-4-1994 made the award a rule of the Court.
3. Mr. P.B. Dhar, learned counsel for the appellant has assailed the judgment of the trial Court mainly on the ground of limitation. According to the learned counsel, the application for filing of the award under Section 14(2) of the Arbitration Act was filed beyond the time prescribed under Article 119(a) of the Limitation Act.
4. In this case, it is not disputed that the award was made and signed by the Umpire on 16-8-1993 and parties had notice of the same. The award was presented to the Court on 22-9-1993 by the respondent as authorised by the Umpire. At the time of the filing of the award to the Court, an application was filed by the respondent praying for making the award a rule of the Court and the application so filed along with the award was shown to have filed under Section 14 of the Arbitration Act. Now, according to Mr. P.B. Dhar, as the time prescribed under Article 119(a) for filing of the application being 30 days and the said application having been filed beyond the prescribed period, the same is not maintainable and is barred by limitation.
5. Section 14 of the Arbitration Act is reproduced below :
" 14. Award to be signed and filed -- (1) 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 and of the amount of fees and charges payable in respect of the arbitration and award.
(2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement of any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any deposition and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.
(3) Where the arbitrators or umpire state a special case under clause (b) of Section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the award."
Under Sub-section (2) of Section 14 of the Arbitration Act, the Arbitrator or umpire shall cause the award or a signed copy of it to be filed before the Court either at the request of the party or any person claiming under such party or if so directed by the Court. In the present case the award was filed by the respondent along with the application as stated above. Now the question is whether the provision of Article 119(a) of the Limitation is applicable. Article 119(a) is reproduced below :
Description of suit Period of limitation Time from which period begins to run 119(a) - For the filing in court' of an award Thirty days The date of service of the notice of the making of the award.
6. On close reading of the provision of Subsection (2) of Section 14 of the Arbitration Act and the Article 119(a) of the Limitation Act, I am of the opinion that Arbitrator may file the award by himself or cause to file the award through some body. Article 119(a) does not apply in case where the Arbitrator/Umpire suo motu files or causes to file the award. In the case of Champalal v. Mst. Samrathbai reported in AIR 1960 SC 629 the Supreme Court held that Article 178 of the Limitation Act, 1908 (corresponding to Article 119(a) of Limitation Act, 1963) applies to application made by the parties and not to the filing of the award by the Arbitrator and it applies only to the application filed by the parties for filing of the award. Again, in the case of Hazi Rahmtulla v. Choudhuri Vidya Bhusan reported in AIR 1963 All 602 while interpreting Article 178(old) (corresponding to Article 119(a) (new) the Division Bench of Allahabad High Court held that Article 178 (old) only applies to an application for the filing of the award and that application can only be one under the provision of Section 14 of the Arbitration Act and that too when the prayer in the application is for a direction to the arbitrator by the Court to file the award. It docs not apply to a case when the award is already in the record of the Court. This Court in the case of Makhan Lal Lodh v. Union of India reported in AIR 1976 Gauhati 65 held that Article 119(a) relates to application filed by the party and the parliament could not have visualised an application by an arbitrator to the court respecting an award made by him to fall within the ambit of Article 119(a).
7. In my considered view, the provision of Article 119(a) of the Limitation Act will become operative only when a party applies praying for a direction of the Court to be issued to the arbitrator/ umpire for the filing in Court of an award. Such application has to be filed within 30 days of the notice of making of the award. Section 14(2) of the Act does not expressly mention that the party may apply to the Court for direction to the arbitrator/umpire to file the award, but it is mentioned that the arbitrator/umpire shall cause the award to be filed if so directed by the Court. Such a direction from the Court v. ill come only when the Court has been approached by a party by filing an application. And the period of limitation prescribed under Article 119(a) for filing the application is 30 days form the date of service of notice of the making of the award
8. In the present case, as stated above, the award was filed before the Court by the respondent on 22-9-1993 with an application. In the application it was clearly stated that the award was handed over to him by the umpire for filing before the Court. Again, in the application the respondent prayed for making the award a rule of the Court. The application filed by the respondent was not an application for a direction for filing of the award. In that application it was specifically mentioned that the award was filed as authorised by the umpire and the respondent prayed for making the award a rule of the Court and also for interest. Thus, Article 119(a) of the Limitation Act is not attracted in the present case.
9. Mr. P.B. Dhar also submitted that the umpire has committed misconduct, but the appellant has only made a vague allegation of misconduct without mentioning any specific particulars which may constitute or amount to misconduct. I have also seen the award and the records and I do not see any substance in the allegation of misconduct.
10. Lastly, Mr. Dhar mentioned regarding the power of the Arbitrator in awarding the interest pendente lite. In this regard the law has been settled by the Constitution Bench of Supreme Court in the case of Secretary, Irrigation Department, Govt. of Orissa. v. G. C Roy reported in AIR 1992 SC 732. The said decision has been reiterated in the recent case reported in AIR 1996 SC 2853. In view of the above aid provision of law the learned counsel Mr. Dhar did not press this matter and rightly so,
11. From the above discussions, and findings I see no ground to interfere with the Judgment and Decree passed by the learned Court below. Accordingly, appeal is dismissed with costs.