Patel Motibhai
Naranbhai & Anr Vs. Dinubhai Motibhai Patel & Ors [1996] INSC 35 (9 January 1996)
Sen,
S.C. (J) Sen, S.C. (J) Ahmadi A.M. (Cj) Sen, J.
CITATION:
1996 AIR 997 1996 SCC (2) 585 JT 1996 (1) 265 1996 SCALE (1)294
ACT:
HEAD NOTE:
Leave
granted.
This
case arises out of a property dispute between Motibhai Naranbhai Patel and Chandrakant
Motibhai Patel, the appellants herein, and Pravinbhai Ishwarbhai Patel, Mahendrakumar
Ishwarbhai Patel and Jayantikumar Ishwarbhai Patel, the respondents.
The
dispute, by mutual consent was referred to arbitration. Dinubhai Motibhai
Patel, an Advocate was selected as Arbitrator by the parties. The dispute was
referred to the Arbitrator on 21st May, 1985.
The Arbitrator made his Award on 26th February, 1986 and gave intimation of the Award to all the Parties.
Thereafter on 24.4.1986 Chandrakant Dave, an Advocate wrote to the Arbitrator
on behalf of the appellants:- "You have recently given an award as an
Arbitrator between my clients and the heirs of his deceased brother Shri Ishwarbhai
Naranbhai Patel with regard to the properties and present distribution adhered
in some of the representation made by our clients have not considered and
thereby my clients hereby raise written objection against the award being filed
and hence as an Arbitrator you should not initiate any steps to file."
Because of this letter or for some other reason, the Award was not filed in
Court. Under the provisions of sub- section (2) of Section 14 of the
Arbitration Act, 1940, it was open to any of the parties to the arbitration to
request the Arbitrator to file the Award in Court. The parties could also apply
to the Court for a direction upon the Arbitrator to file the Award. Neither of
these two steps were taken by the appellants or the respondents. Under Article
119 of the Limitation Act, 1963, an application for filing the Award in Court
could be made within a period of thirty days from the date of service of notice
of the making of the Award. An application for setting aside of an Award could
be made also within a period of thirty days from the date of service of the
notice of the filing of the Award. Since the Award was not filed in Court, the
question of applying for setting aside of the Award did not arise. But the
right to apply to the Court for filing of the Award, expired after thirty days
of the service of the notice of making of the Award. Neither of the two parties
tried to enforce the Award. It has been contended on behalf of the respondents
that the parties had come to a settlement in the meantime. But the letter
written on 24th April,
1986 by the advocate
on behalf of the appellants does not indicate that any such settlement had been
arrived at. On 31st January, 1992 Jayantibhai Ishwarbhai Patel the fourth
respondent herein, instituted a suit in the City Civil Court at Bombay in which
one of the prayers was for permanent injunction upon the defendants from
putting up any illegal or unauthorised construction on the suit property, viz.,
plot of land being S.No.61, Hissa No.5, Part, admeasuring 1932 sq. yards and
industrial shed and also plot of land bearing S.No.22, Hissa No.1, Paret,
admeasuring 295 sq. yards situated at Valnai, Ramachandra Lane Extension, Malad
(West), Bombay.
The
plaintiff claimed his right over the suit properties on the basis of the Award
dated 26th February,
1986 passed by the
Arbitrator. On 5th
February, 1992, Motibhai
Naranbhai Patel, appellant No.1, filed his reply raising the point of
maintainability of the suit on the ground that the suit was in effect filed to
enforce an Award which has neither been registered nor made the rule of the
Court in accordance with law.
Promptly,
thereafter, on 8th
February, 1992, Jayantikumar
Ishwarbhai Patel asked the Arbitrator to file the Award, passed on 26th February, 1986, in Court. After a long lapse of
six years, the Arbitrator Dinubhai Motibhai Patel not only made an application
for filing the Award in Court but also applied for a decree in terms of the
Award and engaged a lawyer for this purpose. This action of the Arbitrator is
incomprehensible. It appears that he had decided to shed the mantle of an
arbitrator and join force with a party in the dispute. A decree, as prayed by
the Arbitrator, was passed by the Court of Civil Judge (S.D.) at Anand on 5th October, 1994. It may be mentioned that Jayantikumar
Ishwarbhai Patel had also applied for a decree in terms of the Award. Both the
applications were disposed of by the aforesaid order passed on 5th October, 1994. The appeal against the decree was
dismissed. The appellants have, therefore, come up on appeal before this Court.
The
only question that falls for determination in this case is whether the
Arbitrator could after a long lapse of nearly six years from the date of the
Award file his Award and ask for a decree in terms of the Award, especially
when neither of the two parties made any application for filing of the Award in
Court even after receiving intimation of making of the Award. The question of
making an application under Section 17 of the Arbitration Act for judgment according
to the Award cannot arise until and unless the Award is filed in Court. There
is no specific provision in the Arbitration Act casting a duty upon the
Arbitrator to file his Award in Court suo moto. Article 119 of the Limitation
Act lays down a time limit for making an application for filing the Award in
Court or for setting aside the Award or getting the Award remitted for
reconsideration. In the instant case, the Arbitrator has not merely filed the
Award in Court, he has also made an application (Miscellaneous Civil
Application No.19/1992] in the Court of Civil Judge (S.D.), Anand, under
Section 14 of the Arbitration Act and has engaged a lawyer Shri G.B. Shah to
obtain orders as prayed. It has been recorded in the judgment passed by the
Civil Judge on 5th October, 1994 on the application made by the Arbitrator:-
"The brief facts of the applicant's case are as under:- That the applicant
was appointed as Sole Arbitrator in the dispute between non- applicants by
reference dated.21/5/1985.
That
after giving an opportunity to the non-applicant, the applicant had declared
his Award on 26/2/1986 and intimation of the Award were
given to the non-applicants. That non-applicant No.1& 2 requested the
applicant/arbitrator through their advocate Shri C.G. Dave by letter dtd. 24.4.86
not to file the award and non- applicant No.5 by his letter dtd. 8/2/92 requested the applicant/arbitrator to file the award. Hence
this application has been preferred to file the award under the provisions of
Sec. 14 of Arbitration Act. That it is prayed by the applicant that the
non-applicant may be served with the notice of filing the award and decree may
please be passed in terms of the award. In other words the award passed by the
arbitrator may please be made the rule of the Court and decree in terms of the
award may be passed." It has also been recorded that the non-applicants
No.1 and 2 had also moved an application under Section 17 of the Arbitration
Act and had contended that the applicant/Arbitrator had filed the present application
under Section 14 of the Arbitration Act on 14th February, 1992 and the Award
should be made the rule of the Court and that a decree in terms of the Award be
passed. The Civil Judge ultimately passed the following order:
"Applications
are allowed. Award is hereby declared and made the rule of the Court," In
other words, the Civil Judge allowed the applications for filing of the Award
and passed an order in terms of the Award.
Under
sub-section (2) of Section 14, a duty is cast upon the arbitrator to file the
award or cause the award to be filed in the court at the request of the party
to the arbitration agreement or if so directed by the court. There is no
provision which requires the arbitrator to apply to the court for filing of the
award and pass a decree in terms of the award. An application for filing the
award in court has to be made within thirty days from the date of service of
the notice of making of the award under Article 119 of the Limitation Act. Even
if it is held that Article 119 will apply only to an application made by a
party and not by the arbitrator, Article 137 will come in the way of the
arbitrator's making any application beyond the period of three years from the
date of making of the award.
Faced
with the situation that an application for filing the Award in Court under
Section 14(2) of the Arbitration Act has become barred by limitation, Jayantikumar
Ishwarbhai Patel induced the Arbitrator to make an application for filing of
the Award and also for making the Award the rule of the Court. In other words, Jayantikumar
Ishwarbhai Patel, a party to the dispute, with the help of the Arbitrator, did
indirectly what he could not have done directly. We are of the view that law
cannot be allowed to be circumvented in this fashion. The Court should have
declined to entertain the application moved by the Arbitrator nearly six years
after making of the Award. Without the application of the Arbitrator, the
application made by Jayantikumar Ishwarbhai Patel under Section 14(2) could not
survive. The court should not come to the aid of a party where there has been
unwarrantable delay in seeking the statutory remedy. Any remedy must be sought
with reasonable promptitude having regard to the circumstances.
In our
view, the respondents Nos.3 to 5 cannot be allowed to circumvent the law with
the help of the Arbitrator and obtain indirectly an order under Section 17 of
the Arbitration Act, which they could not do directly.
The
appeal is allowed. The order passed by the High Court on 30th September, 1994 and
also the decree in terms of the Award passed by the Civil Judge (S.D.), Anand,
on 5th October, 1994 are set aside. There will be no order as to costs.
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