Andhra HC (Pre-Telangana)
Ram Prasad Construction Co. vs State Of A.P. Through The ... on 3 September, 1991
Equivalent citations: 1992(1)ALT264
JUDGMENT Bhaskar Rao, J.
1. This revision is directed against an order dated 15th July, '86 of the Sub-court, Khammam, condoning the delay of '67 days in filing the O.P., for making the award dated 29-10-1983 a rule of the Court.
2. The relevant facts in brief are: Under a contract the revision-petitioner was entrusted with some earth work of excavation of Madhira branch-canal by the respondent State of Andhra Pradesh. Since certain disputes arose during the execution of the said work between the parties, the matter was referred to a panel of arbitrators and an award was passed on 29-10-83. The State of Andhra Pradesh filed an application under Section 17 of the Arbitration Act, 1940 before the court below for making the award a rule of the court and passing a decree in terms thereof. Along with the said application, the respondent also filed the award. Though the award was received by the State on 5-6-84, while filing the application under Section 17 of the Arbitration Act on 5-9-1984, by way of abundant caution a petition to condone the delay in filing the suit, through the application referred to, was filed. The court below holding that Section 5 of the Limitation Act is applicable to the proceedings under the Arbitration Act condoned the delay. Hence this revision.
3. The learned counsel for the petitioner, Mr. Syed Shareef Ahmed, mainly contended that Section 5 of the Limitation Act is not applicable to the suits for purposes of condoning the delay and that since the proceedings originated through an application under Section 14 or 17 of the Arbitration Act culminated only in a suit the order under revision condoning the delay is illegal and liable to be set aside. The learned Government Pleader, on the other hand, contended that as per Section 29(2) of the Limitation Act the provisions contained in Sections 4 to 24 are applicable to any special law, Arbitration Act in the present case, of course to the extent they have not been specifically excluded by such special law. Since there is no such exclusion in the provisions of the Arbitration Act according to the learned Government Pleader, the Sections 4 to 24 of the Limitation Act are applicable to the present proceedings. Apart from this the learned Government Pleader submitted, Section 37 of the Arbitration Act positively speaks of application of the provisions of the Limitation Act to the proceedings under the Arbitration Act and therefore, he contended, the court below has rightly condoned the delay.
4. Before we deal with the contentions advanced, it is interesting to notice that the petitioner, as seen from the grounds of revision, seeks to assail the order under revision by taking the application filed by the State as one under Section 14 and not under Section 17 of the Arbitration Act. It is, therefore, necessary at the outset to find out whether the application filed by the State is one under Section 14 or 17 of the Arbitration Act. To draw a distinction between the two sections, it is relevant to read them first.
Section 14 reads:
"14. Award to be signed and filed:- (1) When the arbitrators or umpire have made their award, they 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 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."
5. The section, as seen thus is divided into three parts, namely (i) after the award is ready the arbitrators shall sign it and give notice of the same to the parties stating the making and signing of the award besides the amount of fee, etc., (ii) the arbitrators may be required to file the award and the relevant documents at the request of either party or at the direction of the Court, and (iii) where the arbitrators state a Special case for the opinion of the Court and under Section 13(b), the court shall after giving notice and hearing the parties pronounced its opinion thereon. In the instant case, the respondent-state itself has filed along with the application the original award made and signed by the panel of arbitrators, which was served upon it through letter dated 30-5-84. Therefore, question of requiring the arbitrators to make, sign or file the award or state a special case under Section 13(b), as contemplated by Section 14 of the Arbitration Act, does not arise. Therefore, the application does not fall under Section 14 of the Arbitration Act.
6. Coming to Section 17 of the Arbitration Act, it runs thus:
"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, or 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. He from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award."
Therefore, as per Section 17 an award may be corrected or modified under Section 15, remitted for reconsideration under Section 16 or set aside under Section 30 or 33. If no objections are filed by either party under any of the above sections and if filed, have been disallowed, the court will pronounce judgment according to the award and a decree will follow the judgment. The prayer in the application filed by the respondent-State is to make Rule of court by passing judgment and decree in terms of the suit award dt.29-10-83. The respondent State has also filed along with the said application the award passed. Therefore, apart from the recitation that the application is filed under Section 17 of the Arbitration Act, the a spirit and substance of the application besides filing of the award, as such, served upon it along with the application brings it on all fours within the purview of Section 17 of the Arbitration Act. The abundant caution taken by the respondent State in filing the petition to condone the delay in preferring the application by viewing the limitation in the light of Article 119 of the Limitation Act cannot be permitted to be taken advantage of by the revision petitioner to support its case that the application made by the State is one under Section 14 of the Arbitration Act and consequently hit by Article 119 of the Limitation Act.
7. It is relevant at this stage to refer to a decision of the Lahore High Court in Jai Kishan v. Ram Lal Gupta, AIR (31) 1944 Lahore 398. The question that arose therein also is, whether the application filed before the Court is one under Section 14 or Section 17 of the Arbitration Act. Abdul Rehman, ]., considering the above question held at page 400:
"The position that the application was or must be taken to be for the filing of the award is equally untenable. There is nothing in the whole of the application to suggest that it was for the purpose of having the award filed. Indeed the petitioner did not ask for that order as he was in possession of the award and was filing it in Court with his application. That is why there was no prayer in the application for the award to be filed. The omission was not accidental but deliberate. Moreover, if the award was filed by the petitioner along with the application, he could not have caused it to be filed by the arbitrators under Section 14, Arbitration Act. Since the award had been filed by the petitioner with the application he could only ask the court to proceed from the stage after it would have been filed before the Court, that is to say, for the purpose of making an enquiry that might have resulted in ordering a modification or correction of the award under Section 15 or in remitting the award under Section16 or setting it aside or refusing to set aside under Section 17, Arbitration Act. In other words, a notice as required in Section 14 to the Arbitrators to cause the award or a signed copy of it etc., to be filed in Court was unnecessary in a case like this."
The facts involved, thus, before the Lahore High Court are similar to those on hand, in that, there also the application filed was under Section 17 with a prayer to make the award a rule of the Court, enclosing thereto the award served upon the applicant-party to the award.
8. While following the decision of the Lahore High Court, the Allahabad High Court also in Radha Kishen v. Madho Krishna, stated in clear and categorical terms thus:
"The distinction between the two sections is that under Section 14 the arbitrator is called upon to file the award while under Section 17 the prayer is that the award may be made a rule of the Court and a judgment and decree may be pronounced accordingly."
Another decision of the Allahabad High Court in Rahamtulla v. Vidya Bhushan, is still an afortiorari one, in that, there the plaintiff described the application as one under Section 14(2) of the Arbitration Act. Still, the court held:
"(ii) As the application by the plaintiff, although described as being one under Section14(2) of Arbitration Act, was in substance and in respect of its prayer, not one under Section 14 and as neither the Limitation Act nor the Arbitration Act prescribed any specific period of limitation for such application no question of limitation could arise.....
In all the three decisions, viz., one of the Lahore High Court and the latter two of the Allahabad High Court, it is held that the limitation prescribed under Article 178 of the Indian Limitation Act, 1908 (corresponding to Article 119 of the present Limitation Act of 1963) does not apply inasmuch as the applications therein were not under Section 14 of the Arbitration Act.
9. Now, we shall refer to Article 119 of the Limitation Act, 1963, which reads:
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Description of Period of Time from which period
Suits Limitation begins to run
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119. Under the Arbitration Act, 1940.
(a) For the filing in court The date of service of the
of an award Thirty notice of the making of
days the award.
(b) for setting aside
an award on getting Thirty The date of service of
an award remitted days notice of the filing of the
for reconsideration. award.
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The prayer in the application filed by the State-respondent is neither for filing in Court of an award, nor for setting aside an award, nor for getting an award remitted for reconsideration. On the other hand, the prayer is to make the award, filed along with the application, a rule of the Court and to pass a judgment and decree in terms thereof. The application, thus, squarely falls under Section 17 of the arbitration Act. As noted already supra for filing in Court of an award it is Section 14, for setting aside an award it is Section 30 or 33, and for getting an award remitted for reconsideration it is Section 16 of the Arbitration Act are attracted for purposes of computing the limitation under Article 119 of the Limitation Act. Accordingly, we hold that Article 119 of the Limitation Act has no application to the instant case inasmuch as the application filed is under Section 17 and not under Sections 14, 30, 33 or 16 of the Arbitration Act.
10. In the view we have taken that the application filed in the present case is one under Section 17 of the Arbitration Act, the argument addressed for the revision petitioner that the provisions of Section5 of the Limitation Act have no application to suits filed under Section 14 of the Arbitration Act for the reason that such application merges into a suit in accordance with rule 5 Of the Arbitration Rules framed by Madras High Court under Section 44 of the Arbitration Act and adopted by the Andhra Pradesh High Court, is of no consequence, except emerging academic interest. Even if the same argument is extended to the present application filed under Section 17 of the Arbitration Act still the position remains the same since calling in aid Section 5 of the Limitation Act does not arise inasmuch as neither the Arbitration Act nor the Limitation Act has prescribed any specific period of limitation for filing of such applications resulting in the residuary Article, viz., Article 113 or 137 of the Limitation Act, being attracted whereunder the period of limitation is three years bringing the present application well within the said period and warranting no petition being filed for condoning any delay. To analyse this, it was on 5-6-84 that the service of the award on the respondent-state of A.P. was effected and within three months thereafter i.e., on 5-9-84 the application in question under Section 17 of the Arbitration Act was filed. Accordingly, we find that the petition giving rise to the order under revision is uncalled for and the application filed under Section 17 of the Arbitration Act can be straight away registered, if otherwise in order, since there is absolutely no delay in filing the same. A direction shall accordingly issue to the court below.
11. In the result, the revision petition is dismissed. However, in the circumstances, there shall be no order as to costs. Advocate's fee Rs. 250/-.