Patna High Court
Babu Kunj Lal vs Babu Banwari Lall And Ors. on 5 December, 1918
Equivalent citations: 48IND. CAS.711, AIR 1918 PATNA 83
JUDGMENT Dawson Miller, C.J.
1. This is an appeal from an order of the Additional Subordinate Judge of Muzaffarpur refusing the appellant's application to file an arbitration award under Schedule II, clause 20, of the Civil Procedure Code. The plaintiff and the defendants Nos. 1 and 2 are members of a Hindu joint family. The defendant No. 8 is the widow of a deceased coparcener of the family. In 1908 the members of the family had separated in mess. On the 1st April 1911 by a registered deed the plaintiff and defendants Nos. 1 and 2 submitted the partition of the family property and settlement of certain matters in dispute between them in connection therewith to the arbitrament of Babu Jnanendra Mohan Dutta and Babu Apurba Krishna Mitter as arbitrators. The submission provided that the award order and partition and arbitration of the arbitrators or umpire in all or any of the matters so referred should be final and conclusive between the parties and their representatives. No limit of time was prescribed for making the award. By a previous agreement of the 27th January 1908 the same parties had submitted a partition of their joint property to three arbitrators, who had entered on the arbitration and made a partial partition of the property but owing to delay in completion of the award the parties agreed by mutual consent to cancel the submission, and by the present submission it was provided that the arbitrators might' adopt' partially or wholly the matters already settled or decided by the former arbitrators. The arbitrators duly entered on the arbitration in the year 1911 and adjourned from time to time. A great number of meetings were held and it was not until the 8th October 1915 that the final award was made. The value of the property was about Rs. 2,10,000 and no doubt there was a considerable amount of Work to be done. It further appears that the defendant No. 2 lived during a considerable portion of that time at Patna and Hilsa, a long distance from Muzaffarpur where the meetings were held, and probably it was not always easy to convene meetings to suit the convenience of all parties. Further the defendant No. 2 was absent for about a year of the time on pilgrimage. The defendant No. 3 Musammat Deoki Bibi joined in the arbitration by agreement in writing dated the 1st May 1915, submitting her interest in the property to be determined by the same arbitrators in the same arbitration. The procedure adopted by the arbitrators with the consent of all parties appears to have been to deal with separate portions of the property at different times as the arbitration proceeded, and provisional decisions were arrived at from time to time distributing the different properties between the cosharers in proportion to their shares. Minutes of the proceedings were kept and the decisions were entered in the minute book. By July 1915 practically the whole estate had been in this way partitioned. On the 14th July in that year a draft award was drawn up and submitted to the parties, who were invited to formulate objections thereto for final discussion. Up to this time there was nothing to show that any party was dissatisfied with the manner in which the arbitration was conducted or the length of time occupied, but on the 12th July 1915 on the eve of the publication of the draft award the defendant No. 2 wrote a letter to each of the arbitrators in similar terms purporting to revoke and cancel the submission on the ground of delay in completing the award. The arbitrators apparently did not feel justified at this stage in desisting from their labours at the request of one party alone and they proceeded to hear objections by the parties to the draft award. The defendant No. 2 himself appeared and took part in the objection proceedings, and on the 8th October 1915 the arbitrators having disposed of the objections published their award. On the 14th March 1916 the plaintiff applied to the Subordinate Judge to file the award. The defendants filed objections. The Subordinate Judge rejected the plaintiff's application upon a number of grounds, which may be summarised as follows:
(1) That there was no valid reference to arbitration as undue influence was exercised by one of the arbitrators Babu Jnanendra Mohan Dutta on the defendant No. 1 to induce him to agree to the submission.
(2) That the defendant No. 2 was justified in revoking the submission owing to long and unreasonable delay in making the award.
(3) That the arbitrators left undetermined certain matters submitted to them.
(4). That the arbitrators were guilty of misconduct in the following particulars:
(a) In failing to insist upon the production of certain accounts in the possession of the plaintiff dealing with matters in controversy in the arbitration.
(b) In that one arbitrator sat alone from the 7th November 1914 to the 11th August 1915.
(c) In that on three days there were ex parte hearings.
(d) In that certain matters outside the scope of the reference were dealt with by the arbitrators. (5). That the arbitrators exhibited a bias in favour of the plaintiff. (6). That the application was barred by limitation.
2. With regard to the first point it appears that Babu Jnanendra Mohan Dutta had acted as Pleader to the family and was more or less in their confidence. Both the defendants were educated men and presumably capable of looking after their own affairs. It would appear that there had been some discussion and possibly dissatisfaction about the dilatorinees of the arbitrators appointed by the earlier submission referred to and on the 18th March 1911 Babu Jnanendra Mohan Dutta wrote a letter to the defendant No. 1 in these terms:
I am sorry the arbitration matter is still pending without final decision. I don't think the arbitrators will finish the work soon. As we look to the interest of you all, we advise you to refer to a separate arbitration and I and Apurba Babu are willing to act as arbitrators on moderate fees. Babu Harish Chandra and Babu Kunja Lal are agreeable to this. If you also consent to the matter please come and settle the affairs. May this find you alright.
3. In the result the parties agreed to revoke the earlier submission and to appoint Babu Jnanendra Mohan Dutta and Babu Apurba Krishna Mitter in their place. The Subordinate Judge came to the conclusion that this was an improper letter to write, that Jnanendra Babu should have advised the parties to seek independent advice which was, not done, and sums up the matter by saying that defendant No. 1 was persuaded by Jnanendra Babu to submit to the new arbitration and adds: "In my opinion defendant No. 1 was not free to act to the best dictates of his conscience There was no valid reference in this case." I confess I have some difficulty in following the reasoning by which the learned Judge arrives at the conclusion that there was no valid reference. I can see nothing improper in a letter such as that written by Babu Jnanendra Mohan Dutta to the defendant No. 1, offering himself as arbitrator after apparently discussing the matter with the plaintiff and the other defendant who were agreeable to the course suggested. I have also read the evidence of the defendant No. 1 and I am unable to discover the slightest indication of any thing in the nature of fraud or even of undue pressure or persuasion upon the defendant to agree to the terms of the submission. Even had there been some persuasion exercised to induce the defendant No. 1 to consent to a course agreed to by the other parties, I cannot see unless some fraud or impropriety is shown, that this would be any reason for holding that the submission was not valid In my opinion this part of the learned Judge's decision cannot stand.
4. The second point on which the Subordinate Judge's decision is based cannot, in my opinion, be supported. His decision on this point appears to me to be based upon a misunderstanding of the effect of the judgment in O.R. Coley v. V.A. DaCosta 17 C. 200 : 8 Ind. Dec. (N.S.) 672. Where parties submit their differences to arbitration, they cannot be allowed to revoke or withdraw from the submission except for very good cause. In the present case before any objection was taken to the delay by the defendant No. 2, the arbitration was practically completed and although no final award had been made, this defendant had a very fair idea as to how he would stand at the end of it. One cannot shut one's eyes to the fact that he was not altogether satisfied with the properties allotted to his share. Some of them had not turned out as well as he expected. But up to the eleventh hour he had shown no inclination to be dissatisfied with the length of time occupied in the proceedings. Indeed it was mainly due to the fact that he himself had been on pilgrimage for a year and for part of the rest of the time lived at a distance from the other parties that the proceedings were protracted and, in my opinion, it would be contrary to the whole spirit of the law affecting submission to arbitration to permit one party to revoke his authority at his own pleasure without shewing some batter reason than that which appears in the present case. In O.R. Goley v. V.A. Da Costa 17 C. 200 : 8 Ind. Dec. (N.S.) 672 shortly after the submission the arbitrator appointed by the respondent (one of the parties to the submission), before any material progress had been made in the arbitration, went to a hill station for the benefit of his health and all proceedings were suspended for about 7 months from the date of the submission and there was no prospect of anything further being done in the near future. The appellant (the other party) thereupon revoked the submission. Inspite of this the Subordinate Judge shortly afterwards ordered the submission to be filed, and on the refusal of the appellant's arbitrator and the umpire to act, appointed another arbitrator and umpire in their places without any notice to the appellant. The new arbitrators then met and subsequently delivered [an award. The proceedings of the new arbitrators were heard ex parte in the absence of the appellant, although he was served with notice. The Court found that where there is unreasonable delay in proceeding with the arbitration, one of the parties may revoke the submission if the delay is not explained or justified by any act on his part. They also found that the proceedings of the new arbitrators were tainted with illegality for other reasons not material to the present discussion. I agree with the principles laid down in that case, but the circumstances of the present case are entirely dissimilar. The only reason which appears for any delay in completing the proceedings in the present case is that mentioned by the arbitrators themselves in their award, namely, the voluntary absence of the party who now seeks to impugn the award on the ground of delay. In my opinion, no case has been made out which would justify the Court in refusing to file the award on the ground of delay.
5. The third point is the one which presents most difficulty in this appeal. By the terms of the submission the arbitrators had the option of adopting partially or wholly the matters already settled and decided by the former arbitration. It was also provided that the arbitrators should divide and partition in any manner as to them might seem fit and proper all such property, moveable and immoveable, as was still jointly owned by the parties. They were also to settle and decide all accounts between the parties and to adjust or otherwise settle and decide all credits and debts due and owed by the joint banking business of the parties, and for the purposes of such division make any allotment of such credits and debts between the parties as to them might seem just and proper. There were a large number of villages jointly owned by this family. Most of these villages had been partitioned in the former proceedings, including certain Zamindaries at Ulao. The allotment of those villages previously arrived at was adopted by the new arbitrators. There were, however, three or four, villages of Ulao Elaka which had not been previously partitioned, and these' were advisedly kept joint by the arbitrators as they were adjacent to the family residence of the parties and the award provided that each of the parties should take a third share in each of these villages. There were also some diara lands consisting of two villages, which were advisedly kept joint as they could not be valued with precision. The learned Judge Game to the conclusion that the award was bad by reason of this defect and could not, therefore, be filed. The rules contained in the Second Schedule of the Civil Procedure Code relating to arbitration without the intervention of the Court provide (paragraph 21) that where the Court is satisfied that the matter has been referred to arbitration and that an award has been made thereon and where no ground such as is mentioned or referred to in paragraph 14 or paragraph 15 is proved, the Court shall order the award to be filed and shall proceed to pronounce judgment according to the award. Paragraphs 14 and 15 form part of the procedure applicable to references ordered by the Court. Paragraph 14 authorises the Court to remit the award to reconsideration of the arbitrators where (inter alia) the award has left undetermined any of the matters referred to arbitration or where it determines any matter not referred to arbitration, unless such matter can be separated without affecting the determination of the matters referred. Paragraph 15 relates to the grounds upon which alone an award can be set aside. These include corruption or misconduct of the arbitrator or umpire, fraudulent concealment of material matters by the parties or their wilfully misleading or deceiving the arbitrator or umpire.
6. Whilst it is clear that in cases where the reference is made by the order of the Court the Court may remit the award for the determination of matters left undecided under paragraph 14 of the Schedule, it has been held by the Courts of this country that paragraph 21 of the Schedule confers no such power in the case of arbitration without the intervention of the Court and that if any of the matters referred to in paragraph 14 are proved, the Court has no option but to refuse to file the award. It is in my opinion regrettable that such power does not exist and the absence of any such power under the rules must, in many cases, work great hardship and inconvenience upon the parties. It may well be that after great labour and expense have been incurred by the parties in settling their differences by arbitration, one of them in whose favour the matters referred have been decided may find himself unable to file the award and obtain the judgment of the Court thereon if some small portion of the matters referred to arbitration has been left undetermined. It is, however, in my opinion, too late now to question the construction which has been placed upon paragraph 21 by the High Courts of Bombay, Allahabad and Calcutta and if it should appear that the, arbitrators without the consent of the parties have failed to partition the Mauzas in question when they were required to do so by the submission, there will be no option but to refuse to file the award. It becomes necessary, therefore, to consider how far, if at all, the parties have either by the submission or by subsequent consent agreed to the course followed by the arbitrators. It is true that the submission by Clause 2 gives the arbitrators the option to adopt partially or wholly the matters already settled or decided by the former arbitrators. The former arbitrators partitioned practically the whole of the villages leaving those in question joint, and it is contended that paragraph 2 of the submission entitled the arbitrators to adopt in its entirety the decision arrived at by the former arbitrators and to retain these villages and the diara lands as joint property. 1 am afraid I cannot accept this argument. In so far as the previous arbitrators left undivided any of the joint property, I think it was the intention of the submission that the present arbitrators should deal with it.
7. It is next contended that clause 17 of the submission, which provides that the award order, partition and arbitration of the arbitrators or umpire in all or any of the matters referred to them shall be final and conclusive, contemplates that any of the matters referred to the arbitrators and dealt with by them shall be binding upon the parties notwithstanding that other matters are left undecided. Had this clause stood alone there would have been much force in this argument, but after consideration of the document as a whole and especially clauses 3 4 and 5 I have come to the conclusion that it was the intention that all the joint property of the parties should be partitioned in one way or another, in so far as it was capable of partition. And even if the arbitrators with the best intentions in the world failed to carry out the terms of the submission in any material particular, it seems to me that we have no power to file the award which would on this hypothesis be incomplete. So far as the Uloa villages are concerned, they were in fact partitioned between the parties in equal shares. Their interest, therefore, ceases to be that of joint tenants such as the interest enjoyed by co-parceners and becomes that of tenants-in-common, giving, each of the parties a separate interest and separate rights in the subject matter. The submission nowhere provides that the whole of the immoveable properties shall be partitioned by metes and bounds, although speaking generally I think it must be assumed that it was the intention of the parties that this method should be adopted. And had the whole of the immoveable property been divided by shares instead of by metes and bounds, I think it would have been correct to say that the arbitrators had failed to carry out the duties imposed upon them. Where, however, there are special incidents attaching to a small portion of the property, such as the four villages of Ulao Elaka by reason of their propinquity to the family residence of the parties, which make it more convenient for all of them that this property should be divided into shares only, I think it may safely be assumed that such a mode of division in this particular instance was not outside the contemplation of the parties. In the well-known judgment delivered by Lord Westbury in the case of Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R.P.C. 1 : 1 Suth. P.C.J. 657 : 2 Sar P.C.J. 218 : 20 E.R. 30 it is pointed out that "if there be a conversion of the joint tenancy of an undivided family into a tenancy-in-common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement and that is a separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter." In my opinion there was within the terms contemplated by the submission a partition of this property having regard to its peculiar character. The same reasoning applies, in my opinion, with equal force to the diara villages which, as I read the award, were also partitioned in the same manner, namely, into thirds, and which could not be valued with that precision necessary to enable the arbitrators to divide them by metes and bounds.
8. It appears moreover from a perusal of the minutes of the meetings of the arbitrators that there was some discussion between the parties as to the manner in which this property not hitherto partitioned should be dealt with. At the 14th meeting held on the 7th January 1912 the matter was referred to and it was agreed to consider at a subsequent meeting whether any partition would take place or not. At a later meeting held in 1912 the following minute is recorded: "The parties agree that excluding certain properties which they agree to keep joint, we shall divide the properties in three lots and then put the lots up to bids and then make the allotments." The property therein referred to was clearly immoveable property as no personal property was kept joint, and at a later date at a meeting held on the 30th April 1913 after the arbitrators had been to Ulao to inspect the residential house of the parties, it is recorded that the immoveable properties were arranged in three lots of nearly equal value and drawn by lot between the parties. It is clear I think that the word "bids" in the previous entry refers to something in the nature of drawing lots. Now it is not suggested that there was any other property except that of the diara villages and Ulao which the parties agreed to keep joint, and I think it must be taken until the contrary be shown that the agreement to keep joint in the sense of not dividing by metes and bounds can only refer to the diara mahals and the Ulao villages which the arbitrators in their award say were advisedly kept joint. It is true that at a subsequent date when objections to the draft award were put forward at the invitation of the arbitrators in October 1915, the defendant No. 1 claimed that the four Ulao villages should be divided and that he should get one of them which he named. I do not think, however, that at that stage of the proceedings when he had agreed to the previous partition two years earlier and the parties had been put in possession, he was entitled to insist upon a different basis of partition, and in my opinion the arbitrators were justified in refusing to accede to this demand. The reasons given by him for claiming the division of the Ulao villages by metes and bounds are that the villages which had been already allotted to him were some distance away in the Bhagalpur and Dumka districts and that labourers and other necessaries could not be obtained in those Mauzas whilst in the village which he claimed they could. I hold that the award cannot be impeached on this ground.
9. Under the same heading it was also contended that the arbitrators failed to partition Mauza Rahimpur. The defendants claimed this as joint property. The evidence about it is very scanty but so far as it goes, it appears that this village was purchased by the plaintiff in the farzi name of Gobind Sahai in the year 1909 after the parties had separated in mess and were carrying on a separate business. There was no evidence to show that it was joint property. The award does not specifically mention it but in Schedule X which deals with claims and objections of the respective parties, the arbitrators after dealing with a number of claims and objections state in paragraph 17 " claims made by the one party or the other similar to those mentioned in the foregoing paragraphs of this award are all disallowed". The paragraphs in question deal with many things the partition of which was claimed as being joint property. In some oases it was found that they did not exist and in others that the claim failed for want of proof. I chink, therefore, it must be taken that the arbitrators intended to disallow this claim. In any case it is for those contesting the validity of the award to show that the property in question was joint property which the arbitrators omitted to partition in compliance with clause 3 of the submission. They have failed to do so.
10. It was next contended that certain moveables were not divided. These consisted of a sewing machine, some iron safes and a diamond ring. It is sufficient to say that the arbitrators dealt with this claim in Schedule X paragraph 12, and dismissed it for want of proof.
11. In the same way it was contended that debts due by the banking business had not been apportioned. There is no evidence that any such debts existed but if they did, they would be covered by clause 11 of the award and each party would be liable for one-third share. Moreover debts due from the joint family could be realised by creditors from any member of the family and a, division of particular debts between the members could not for any practical purpose be made otherwise than by shares. The assets might be and were allotted, but the debts could not be assigned so as to bind the creditors. Clause 5 of the submission gave the arbitrators a wide power as to the method of adjusting the debts of the banking business if any, and the method adopted seems to me to have been the most practical and in accordance with the terms of the submission. The next point was that a balance of Rs. 1,293 out of a sum of Rs. 5,015 said to have been paid to Gobind Sahai, one of the former arbitrators, was left unaccounted for. The arbitrators dealt with this in Schedule X, clause 5, and disallowed the claim for want of proof. I do not see how we can question this finding. Such evidence as there was in support of the contention that any such balance existed was certainly inconclusive.
12. The fourth objection, heading (a), refers to certain documents relating to some of the lahnas awarded to the plaintiff and which the arbitrators ordered the plaintiff to produce. The lahnas in question appear as items Nos. 2 and 7 of Schedule 1A of the award. No. 2 was a mortgage decree obtained by the family against one Mukhram Singh. No. 7 was borne shares in the Tirhut Stores. The decree appears to have been for a sum of Rs. 400 and was assessed by the arbitrators after bidding by the parties at that amount. There is nothing to show that it was worth more. The Tirhut Stores shares were assessed in the same way and valued at Rs. 200. On the 11th August 1915 the defendant No. 1 applied by letter to the arbitrators to order the plaintiff to 'produce the decree and account of Mukhram Singh's decree and an account of dividends received from the Tirhut Stores, The letter was sent on to the plaintiff, who endorsed it: "It is not stated which bahi is required." On the 14th August a discussion took place before the arbitrators, who ordered the plaintiff to produce the accounts asked for. The order was not complied with. The defendant No. 1 called attention to this again in his written objections to the draft award on the 2nd October. The defendant No. 2 does not appear to have mentioned it. In Schedule A of the award giving the list of lahnas allotted to the plaintiff, a note appears to the effect that no evidence was adduced by the parties about the amount of Mukhram Singh's debt and the dividend of Tirhut Stores. Where a party fails to comply with an order for discovery, the proper remedy is for the party seeking discovery to apply to have the proceedings stayed or the suit dismissed. The decree against Mukhram or a certified copy could also have been produced by the defendants themselves without any difficulty, if it would assist them and if any dividend was paid by the Tirhut Stores which carried on business in Muzaffarpur, the defendants could easily have obtained evidence of the fact. None of these courses were adopted and I am not prepared to hold that the arbitrators were bound of their own initiative to refuse to proceed until the order had been complied with, still less to hold that the course adopted amounted to misconduct. The defendants, both before the arbitrators and again in the present proceedings, have had every opportunity of proving that the accounts not produced would have shown that the assessment of the two items named was under estimated, if such were the fact, and that the arbitrators were misled, but they have not availed themselves of the opportunity and there is nothing to show that any injustice has been done. This objection in my opinion fails.
13. As to objections 4 (b) and (c), it is true that one arbitrator sat alone for the period named to hear and record objections by the parties and on three days there were ex parte hearings in which each party in turn explained his objections. This procedure, which would have been objectionable in ordinary circumstances, was adopted with the full concurrence of all the parties and they cannot now be allowed to take exception to a course in which for the sake of convenience they previously concurred. The minute of the 24th meeting on the 16th September 1914 records: "It is agreed by all the parties that J. M. Dutta would receive the objections of the parties and their evidence, if any, the decision to be come to by both arbitrators jointly." - The procedure thus agreed to was carried out. One of the arbitrators sat to hear and record the objections on a number of days and subsequently on the 19th September and the 1st and 2nd October 1915 each of the parties appeared before the arbitrator in turn and explained his objections. It appears from the evidence that no decisions were come to by the arbitrator on these occasions. He merely recorded the objections. The objections as recorded were considered and decided subsequently by the two arbitrators sitting together. In the circumstances no exception can be taken to this course.
14. The objection 4 (d) refers to two suits referred to as Nos. 126 and 132 of 1911. In the first the claim was by the mother of defendant No. 2 claiming money deposited in the defendants' banking business. In the second the plaintiff was the present plaintiff's son claiming a like deposit. The learned Judge says these matters were beyond the reference and the action of the arbitrators was ultra vires, but gives no reasons for arriving at this conclusion. It seems to me that under clause 5 of the submission it was within the powers of the arbitrators to settle all debts due by the joint banking business, which these claims were. It is said that the real claimants were the defendant No. 2 in the one case and the plaintiff in the other. If this is so, the arbitrators would have power to deal with it,, under paragraph 4 of the submission which enables them to settle all accounts between the parties. Moreover from a perusal of the minutes of the 8th, 9th and 10th meetings it is impossible to arrive at any other conclusion than that all parties consented to these claims being dealt with in the arbitration. This objection cannot be supported.
15. As regards the fifth objection, the learned Judge draws attention to some instances in which the arbitrators refused by their final award to alter the provisional allotment by which certain properties were apportioned to the plaintiff's share, although in the meantime these properties turned out better than anticipated. In one case a mortgage decree allotted to the plaintiff at the decretal amount was realised by him by sale of the property which he purchased. The property proved worth more than the decretal amount. The arbitrators refused to revise the assessment of the decree and, in my opinion, quite rightly. The increment was due to the fact that the plaintiff purchased the mortgaged property, which it was open to anyone to purchase. His speculation turned out profitable. In another case a garden house was allotted to the plaintiff and he was put in possession. Before the final award it was purchased by Government under the Land Acquisition Act for a larger sum. The properties of this nature had been allotted by the former arbitrators and the parties had been in separate possession for a long time. The arbitrators had adopted the previous allotment and retained the parties in possession long before the final award and refused to interfere with the assessment (see clause 3 of the award). The learned Judge said, this showed undue bias in favour of the plaintiff. Many similar instances were discussed by the parties before the arbitrators in objection to the draft award and before the final award. The arbitrators in some instances, for reasons given, modified the provisional assessment in favour of one party or the other. In other cases they refused to do so. The learned Judge appears to have reviewed the evidence and pointed out some instances in which the award turned out profitable to the plaintiff and criticises the decision come to by the arbitrators. His criticisms would have been appropriate in argument before the arbitrators before the award was made, but with due respect to the learned Judge I think he was travelling outside his province in reviewing the evidence and accusing the arbitrators of bias because he himself would have arrived at a different decision on the evidence. We were invited to adopt the same course but must respectfully decline to do so.
16. The next point dealt with by the learned Judge appears to me to be based on a misapprehension of Schedule VIII of the award. This schedule adjusts the monetary liability between the parties and makes the amounts payable in two kists of three months each with interest at 6 per cent. and adds that if the conversion of the award to a decree of Court is delayed by any party entitled to get the same, interest will not run on the amounts awarded. The learned Judge treats this as a penal clause designed to stifle fair and legal objections to the award on pain of forfeiting interest. In my opinion this was not meant to penalise proper legal objections fro the award. If a valid objection to the award were taken by any party and upheld, then the award could not be filed and the stipulation as to interest would avail nobody. If a baseless objection be taken and delay be caused in filing the award, I can see nothing objectionable in depriving the unsuccessful party of interest for the period of delay in filing the award caused by his own unsuccessful objection
17. The last point dealt with the question of limitation. The learned Judge treated the date of the draft award as the date of the award within the meaning of Article 178 of Schedule I of the Limitation Act. With great respect to the learned Judge his decision is based upon a misapprehension of the judgment in Dutto Singh, In the matter of the petition of 9 C. 575 : 4 Ind. Dec. (N.S.) 1031. That case decides that the date of the award referred to in the Limitation Act was the date when it was delivered to the parties so that they had notice of its contents, and not the date when it was actually written and signed which in many oases might be much earlier. In other words, the date was the date of publication, which is not complete until delivery to the parties. The draft award was not the award at all and its publication was not the publication of the award. The final award differed in many respects from the draft, which from its very nature and the purpose for which it was made could not be regarded as the award. The present application was clearly within six' months of the date of the award, and this objection also fails. In the result the appeal will be allowed and the judgment ' and decree of the Subordinate Judge will be set aside; the award will be filed and judgment entered in accordance therewith. The appellant will be allowed costs here and in the Court below against the parties who appeared.
Mullick, J.
18. I agree.