Punjab-Haryana High Court
Rajwant Singh vs Avtar Singh on 20 January, 2012
Author: K.C.Puri
Bench: K.C. Puri
Civil Revision No.3665 of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.3665 of 2003
Date of decision 20.01.2012.
Rajwant Singh
...... Petitioner.
versus
Avtar Singh
...... Respondent.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present : Ms. Deepali Puri, Advocate for the petitioner.
Mr. Bikramjit Arora, Advocate for the respondent. K.C.PURI. J.
Challenge in this revision petition is the order dated 4.4.2003 passed by Shri M.S.Chauhan, learned Additional District Judge, Amritsar vide which the order dated 29.4.2000 passed by Shri Ravinder Singh, Additional Civil Judge (Senior Division), Tarn Taran making the Award rule of the Court, was set aside.
Civil Revision No.3665 of 2003 2
2. The brief facts of the case are that vide order dated 28.11.1991, on an application moved under Section 20 of the Indian Arbitration Act, 1940 (in short - the Act), the trial Court in a civil suit No.409 of 10.12.1988, appointed Smt. Ranjit Kaur as the sole Arbitrator, who was later on removed and Shri S.P.Singh, Advocate was appointed as Arbitrator. Shri S.P.Singh, passed the ex-parte Award dated 14.11.1999, which was submitted in the Court on 8.12.1999. After passing of the Award, Avtar Singh, now respondent filed objections under Sections 30 and 33 of the Act. It is pleaded that ex-parte Award dated 14.11.1999 suffers from many errors and the same is beyond the jurisdiction of the Arbitrator and hence it is nullity in the eyes of law. While appointing Shri S.P.Singh, as Arbitrator, nothing was referred to him. Moreover, it was an ex-parte Award and no notice was given to Avtar Singh-respondent. Shri S.P.Singh, was ordered to file Award on or before 25.2.1999 but the same was filed on 14.11.1999. He has further pleaded that Arbitrator served a notice upon him on 4.2.1999 but the registered cover received back with the report that he has not met. Subsequent registered cover also met with the same fate. The arbitration agreement dated 2.5.1988 is not a valid agreement. The arbitration clause is ambiguous clause as well as arbitration award dated 14.11.1999 is liable to be set aside.
3. The said objections were contested by the present petitioner, in which it is pleaded that the present objections are time barred. The objections could be filed within 30 days from the date of the Award. The Award was passed on 14.11.1999. The objections were filed on 3.1.2000 and as such the objections are beyond the period of 30 days and therefore Civil Revision No.3665 of 2003 3 not within limitation. The other averments made in the objection petition were denied.
4. Respondent Avtar Singh filed rejoinder and the learned trial Court, after hearing both the sides dismissed the objections and the Award was made rule of the Court by Shri Ravinder Singh, Additional Civil Judge (Senior Division), Tarn Taran vide order dated 29.4.2000.
5. Feeling dissatisfied with the aforesaid order dated 29.4.2000 passed by Shri Ravinder Singh, Additional Civil Judge (Senior Division), Tarn Taran, Avtar Singh preferred the appeal.
6. The said appeal was heard by Shri M.S.Chauhan, Additional District Judge, Amritsar and vide judgment dated 4.4.2003, the appeal was accepted and the judgment of the trial Court was set aside.
7. Feeling dissatisfied with the aforesaid order dated 4.4.2003, passed by Shri M.S.Chauhan, Additional District Judge, Amritsar, Rajwant Singh has preferred the present revision petition for setting aside the said judgment dated 4.4.2003 and for restoring the order of trial Court dated 29.4.2000 vide which the objections preferred by the respondent were dismissed and Award was made rule of the Court.
8. During the course of arguments, counsel for the parties have arrived at consensus that so far as the limitation for filing the objections are concerned, the same were filed within limitation. The Award is dated 14.11.1999 and the same was filed in the Court on 8.12.1999 and the objection petition filed on 3.1.2000 i.e. within 30 days and as such the objections preferred by respondent Rajwant Singh were within limitation. Civil Revision No.3665 of 2003 4
9. Ms. Deepali Puri, learned counsel for the petitioner, however, vehemently challenged the ground wherein the learned Additional District Judge, Amritsar has held that Award has not been passed within four months and as such the same cannot be made rule of the Court.
10. It is contended that order dated 19.1.1999 appointing Shri S.P.Singh, Advocate as Arbitrator shows that Arbitrator was directed to give the Award upto 25.2.1999 but the Award was passed on 14.11.1999.
11. Learned counsel for the petitioner has further submitted that the learned Additional District Judge, Amritsar has observed that there is no order to extend the period for passing Award for more than four months, as provided under Section 28 of the Arbitration Act, 1940 and on that account the arbitration Award is nullity.
12. Learned counsel for the petitioner has further submitted that learned Additional District Judge, Amritsar has misconstrued the provisions of Section 28 of the Arbitration Act, 1940. The said provisions of law clearly envisaged that Court may if think whether the time for making the Award has expired or not or whether the Award has been made or not, enlarged the time for making the Award. So, from the bare reading of that provision, it is revealed that even after passing of the Award, the time for passing of the Award can be extended by the trial Court. The trial Court has relied upon the authority Vishanji Dungarmal Futnani vs. Mohan Lal Dungarmal Futnani and others reported in AIR 1988- Calcutta
402. In that authority, clause 2 of Section 28 of the Act has been discussed, wherein it is mentioned that Arbitrator himself cannot extend the time for making the Award. Similar view was taken in authority Sowaran Civil Revision No.3665 of 2003 5 Singh vs. Municipal Committee, Pathankot and another reported in AIR 1963 Punjab 427. In the later authority Sowaran Singh's case (supra) it has been categorically held that Court has the power to enlarge the time for making the Award. It is further contended that in authority M/s S.D.Ghai and Co. vs. Punjabi University, Patiala reported in AIR 1973 Punjab and Haryana 410, this Court has held that the time for concluding the Award can be enlarged by the Court even on the oral request made by the parties. Hon'ble Delhi High Court in authority Union of India vs. Messrs Khan Chand Bhagat Ram Jain and sons reported in 1970 Punjab Law Reporter page 298 has gone a step further in which it has been held that time under Section 28 of the Arbitration Act, 1940 can be extended suo motu by the Court.
13. The learned counsel for the petitioner has further submitted that in authority State of Punjab vs. Hardyal reported in AIR 1985 Supreme Court 920, the Hon'ble Apex Court has held that power to extend time for making Award rule of the court can even be exercised by the Appellate Court in a fit case.
14. In reply to the above noted submissions, counsel for the respondent has supported the judgment of the learned Additional District Judge, Amritsar. It is contended that Award was admittedly passed after more than four months of making the reference and as such the same is nullity as observed by the First Appellate Court.
15. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of Civil Revision No.3665 of 2003 6 the case with their able assistance.
16. The dispute in the present lis is in respect of interpretation of Section 28 of the Act. In order to properly appreciate the said provision, the same is reproduced as under :-
"28.Power to Court only to enlarge time for making Award. (1) The Court may, if it thinks fit, whether the time for making the Award has expired or not and whether the Award has been made or not enlarge from time to time the time for making the Award. (2) Any provision in an arbitration agreement whereby the Arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the Award, shall be void and of no effect."
17. From the bare perusal of Section 28 of the Act, it is revealed that Court has ample power to extend the time for making Award. The said provision of law further envisaged that time for making the Award can be enlarged even after making the Award. However, the power of the Arbitrator or umpire to enlarge the time for making Award has been curtailed by sub section 2 of Section 28 of the Act except where all the parties reached at agreement. In the present case, the Award is ex-parte and as such according to clause 2 of section 28 of the Act, time for making the Award after four months cannot be extended by the Arbitrator. However, in view of Section 28 clause 1, the Court has the power to extend the period for making the Award.
18. So far as the factual position is concerned that is not in dispute in the present case. Vide order dated 19.1.1999, the time for making the Award was fixed at 25.2.1999 and the Award was made on 14.11.1999 i.e. Civil Revision No.3665 of 2003 7 after the period of four months.
19. The learned trial Court after hearing both the sides dismissed the objection petition and Award was made rule of the Court. However, in appeal preferred by Avtar Singh against the judgment dated 29.4.2000 passed by Shri Ravinder Singh, Additional Civil Judge (Senior Division), Tarn Taran (trial Court), Shri M.S.Chauhan, learned Additional District Judge, Amritsar vide order dated 4.4.2003 accepted the appeal on the ground that Award has not been pronounced within the prescribed period and in view of authority Sowaran Singh's case (supra) and Vishanji Dungarmal Futnani's case (supra), the Arbitrator became functus offico after 25.2.1999 i.e. the date on which the Award is to be pronounced and as such the Award is beyond the jurisdiction of the Court.
20. However, from the perusal of the judgments Vishanji Dungarmal Futnani's case (supra), and Sowaran Singh's case (supra), in both these authorities it has been laid down that Arbitrator themselves cannot enlarge the time for making Award. The proviso 2 of Section 28 of the Act clearly shows that Arbitrator has no jurisdiction to extend the period of Award except with the consent of the parties. However, the trial Court has not taken into account clause (1) of Section 28 of the Act vide which the Court has been empowered to enlarge the time even after making the Award. The parliament in its wisdom has enacted the Arbitration Act, 1940 and thereafter Arbitration and Conciliation Act, 1996 to provide speedy remedy to the parties to settle their commercial disputes. The Civil Courts are over burdened due to heavy dockets on that account. The Civil cases could not be decided at an early date. There can be number of reasons Civil Revision No.3665 of 2003 8 for late disposal of civil cases. So, keeping in view that objective in the mind, the above said Arbitration Act were enacted. Once the parties have chosen that their disputes should be decided by the Arbitrator, in that case, the Court should put least restraint in deciding the matter by putting hurdle except where the Arbitrator has misconducted or there are reason prescribed for setting aside the Award within the frame work of those acts. This Court in authority M/s S.D.Ghai and Co.'s case (supra) has held that Court can be requested even orally to enlarge time, if any, for making Award. Delhi High Court in authority Union of India vs. Messrs Khan Chand Bhagat Ram Jain and sons' case (supra) held that Court has suo motu power to extend time for making Award.
21. Hon'ble Apex Court in authority State of Punjab vs. Hardyal's case (supra) extend the time for making the Award at the level of Hon'ble Supreme Court.
22. So, the law on this point is that Court should be liberal in extending the time to make the Award. The appellate Court has not considered Section 28(1) of the Act whereby the Court has been empowered to extend the time for Award. On the facts of the present case, the dispute relates to the year 1999. Arbitration agreement between the parties entered into on 2.5.1988. So, in these circumstances, the First Appellate Court should have exercised the discretion in extending the time for Award. By not exercising that jurisdiction the First Appellate Court has committed illegality more so when the provision of Section 28(1) of the Act has not been considered and the appeal had been accepted without considering that Civil Revision No.3665 of 2003 9 provision.
23. So, keeping in view the facts of the case, the time for making the award stands extended.
24. Consequently, the revision petition stands accepted and the judgment dated 4.4.2003 passed by learned First Appellate Court stands set aside and the judgment of the trial Court dated 29.4.2000 stands restored.
25. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE January 20, 2012 sv