Chattisgarh High Court
United Transport Company And Anr. vs Smt. Khatoon Begum on 21 February, 2007
Equivalent citations: AIR2007CHH77, 2007(3)ARBLR274(NULL)
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Vijay Kumar Shrivastava, J.
1. This is an appeal under Section 39 of the Arbitration Act, 1940 (for short "Act 1940") against the judgment and decree dated 12-3-1999 passed by the First Additional District Judge, Jagadalpur in Civil Suit No. 4A/ 1984 whereby application filed by the appellant to set aside the award has been rejected and in term of award judgment and decree impugned has been passed.
2. Facts stated in brief are that respondent herein filed an application under Section 20 of the Act 1940 for appointment of an arbitrator to decide the arbitral dispute. The application was filed on 6-8-1984. After due hearing First Additional District Judge Jagadalpur, vide order dated 11-2-1986 appointed Shri P.C. Jain, Income Tax Practitioner as sole Arbitrator. Pursuant to his appointment, arbitrator proceeded to resolve the arbitral dispute and after due enquiry and hearing, passed an arbitral award and submitted the same to the Court of First Additional District Judge. The Court received it on 3-5-1990, and passed an order on that day that parties be called and notice of filing of award be communicated to them.
3. Pursuant to the order dated 3-5-1990 parties gave their appearance through their respective counsels on 4-5-1990. Learned Additional District Judge, Jagadalpur, vide order dated 4-5-1990 gave notice of award to the parties present through their counsel in the Court. Appellants and respondent through their counsel present on that day were served with notice accordingly. Learned Judge however directed all the parties that if they so desire, may file their objection against the award in accordance with law. On 11-6-1990 respondent filed an application stating that she has no objection to the award. Therefore, in accordance with Section 17 of the Act 1940, judgment in term of award be passed. On 18-8-1990 appellants filed an application under Section 30 read with Section 33 of the Act 1940 inter alia impeaching the credibility of Arbitrator in conduct of the proceeding, prayed to cancel the award. Respondent vehemently opposed the application and also took a plea that appellant at this stage has no right to challenge the award.
4. Application of the appellants to set aside the award as well application of respondent for making the award rule of the Court were taken together for consideration by the lower Court. During the course of argument before learned lower Court, respondent vehemently contended that the application filed by the appellants to set aside the ward is barred by limitation.
5. Learned Court below after hearing both the parties, held that after intimation of filing of the award before the Court if application to set aside the award has not been filed within 30 days (thirty) days, award is not liable to be cancelled and application filed thereafter is not maintainable. Here in the instant case, appellants after receiving the notices of filing of award after three months from the date of receiving notices of filing of the award have filed the application for setting it aside. They did not file any application under Section 5 of the Limitation Act to condone the delay. Learned lower; Court holding the appellants' application under Section 30 read with Section 33 of the Act 1940 barred by limitation dismissed it, and accepting the award dated 17-4-1990, made it rule of the Court and passed judgment and decree in terms of it.
6. Learned Counsel for the appellants contended that appellants were not served with notice in accordance with Section 14 of the Act, 1940 and the Court also gave notice to the Advocate on behalf of the parties, therefore, in absence of legal notice their application filed under Section 30 read with Section 33 of the Act, 1940 is not hit by law of limitation. On the other hand, learned Counsel for the respondent opposed the same and contended that on 4-5-1990 Court itself gave notice to the parties through their respective advocates regarding filing of the award in the Court and the appellants after lapse of three months have filed the application to set aside the awards without filing any application for condonation of delay, therefore, learned lower Court rightly dismissed the application being barred by time and passed the Judgment and decree in terms of the award.
7. Article 119 of the Schedule of the Limitation Act, 1963 (for short "Act 1963") reads as below:
119 Under the Arbitration Act, 1940 (10 of 1940),-
(a) for the filing in court Thirty The date of
of an award days service of the
making of the
award,
(b) for setting aside an Thirty The date of
award or getting an days service of the
award remitted for notice of the
reconsideration filing of the
the award.
8. Section 14 of the Act, 1940 reads as 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 of the arbitration agreement or 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 depositions 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.
From bare reading of the above provisions, it is manifest that under Section 14(1) of the Act, 1940 arbitrator after signing the award has to 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. Clear enough to say that arbitrator does not serve notice to the parties of the filing of the award.
9. It is evident from Section 14(2) of the Act, 1940 that when arbitrator files the award in the Court, the Court has to give notice to the parties of the filing of the award. If we read Article 119 of the Act, 1963 (supra), it is clear that the notice prescribed therein, has only one meaning that the notice served by the Court on the parties. Here in the instant case, undisputedly, after filing of the award on 3-5-1990 the Court passed an order that parties be called and notices be served. Pursuant to that order on 4-5-1990 appellants and respondent appeared before the Court through their respective advocates and the Court itself vide order dated 4-5-1990 served notices an appellants and respondent regarding filing of the award. Therefore, from the record itself, it was established that notice of the filing of the award was served on appellants on 4-5-1990 and appellants have right to file an application under Section 30 read with Sec-Lion 33 of the Act, 1940 within thirty days from 4-5-1990. Undlsputedly, appellants filed the application for setting aside the award on 18-8-1990 i.e., after lapse of a period of three months and thirteen days. Appellants did not file any application for condonation of delay in accordance with Section 5 of the Limitation Act. Evidently, their application was hopelessly barred by time and the learned lower Court has no option but to reject the application being barred by time which learned Court below did. Therefore, the rejection of the appellants' application which was filed under Section 30 read with Section 33 of the Act, 1940 is absolutely correct and cannot be called in question.
10. Before parting with the case, it is not out of place to mention that learned lower Court passed the Judgment and decree in terms of award. Section 17 of the Act reads as below:
17. Judgment in terms of award.-- Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, on such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except an the ground that it is in excess of, or not otherwise in accordance with, the award.
From bare reading of the above provision, it is evident that once the Judgment has been pronounced and decree has been drawn, that Judgment and decree can only be questioned by regular appeal on the ground that it is in excess of the award or not otherwise in accordance with the award. But, no such appeal has been preferred by the appellants.
11. In the result, we are of the considered view that learned lower Court had not committed any Illegality by rejecting the appellants application filed under Section 30 read with Section 33 of the Act, 1940 and making the award rule of the Court by passing Judgment and decree in terms of the award. The appeal being devoid of merit is dismissed.
12. In view of the facts of the case, parties are directed to bear their own cost.