Deo Narain
Choudhury Vs. Shree Narain Choudhary [2000] INSC 525 (31 October 2000)
V.N.Khare,,
S.N.Variava
L.I.T.J
S. N.
VARIAVA, J.
Leave
granted. This Appeal is against an Order dated 19th March, 1999 by which the Civil Revision filed by the Appellant herein
has been dismissed. The facts necessary for the purpose of this Appeal are as
follows: Appellant and Respondent are brothers. According to the Appellant
their disputes, in respect of a property at Patna, were referred to Arbitration. The Arbitrator/Umpire declared an Award
dated 21st January,
1996. On 14th May, 1996 the Arbitrator/Umpire gave a
registered Notice, to both the parties, that the Award had been made and that
the same was filed in the Court. On 14th May, 1996 the Arbitrator/Umpire filed the
Award in the Court of Sub Judge I Patna. On 11th June, 1996 the Respondent filed a Caveat in the Court of the Sub
Judge. It is mentioned in the Caveat that the Respondent has received a Notice
dated 14th May, 1996 that an Award has been declared on 21st January, 1996 and that the Award has been
registered on 20th
April, 1996 and that
it has been filed in the Court. In the Caveat it is prayed that before any
Order is passed, on the alleged Award, notice be issued to the Caveator and he
be heard. On 16th July,
1996 the Court sent a
Notice to the parties about the filing of the Award. This Notice was admittedly
received by the Respondent on 25th July, 1996.
On 1st August, 1996 both the parties applied for inspection
of the Award. Parties were permitted to and took inspection. The Respondent
filed his objections to the Award on 21st August, 1996. The Appellant contended that the
objections had been filed beyond the period of limitation. It was contended
that the objections should thus be dismissed and a decree in terms of the Award
be passed. This contention was tried as a preliminary issue. On 11th September, 1998 the trial Court rejected the
preliminary contention. It was held that the objection had been filed within
the period of limitation.
The
Appellant filed Civil Revision No. 2173 of 1998. This has also been dismissed
by the impugned Order. Hence, this Appeal. The question for consideration in
this Appeal is when does the period of limitation for filing objections to an
Award commence. Under Article 119, Limitation Act, 1963 the limitation for
filing a petition for setting aside an Award is 30 days from the date of
service of the notice of the filing of the Award. Section 14 of the Arbitration
Act, 1940 reads as follows: "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 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." Thus, under Section 14(1) the Arbitrator
has to give a notice to the parties. Then the Arbitrator or the Umpire has to
file the Award in Court. Under Section 14(2) the Court "shall thereupon
give notice to the parties of the filing of the Award". It is now settled
law that the period of limitation under Article 119 of the Limitation Act, 1963
will start running from the date the notice has been given by the Court under
Section 14(2) of the Arbitration Act, 1940. In this case, admittedly, notice
has been given by the Court on 16th July, 1996.
Admittedly it has been received by the Respondent on 25th July, 1996. The objections are filed on 21st August, 1996. It has been submitted by Mr. Misra
that the term "notice" under Section 14(2) of the Arbitration Act has
been interpreted by this Court in various decisions to mean any communication
which give notice to the parties about the filing of the Award.
He
submitted that it has been held that notice does not necessarily mean
communication in writing. He submitted that it has been held that the
expression "give notice" simply means giving intimation of the filing
of the Award and that such intimation could also be communicated orally.
He submitted
that if a party has been informed about the filing of the Award then that is
sufficient because no particular mode of service has been prescribed. In
support of his submission he relied upon the case of Nilkantha Shidramappa Ningashetti
v. Kashinath Somanna Ningashetti reported in 1962(2) S.C.R. 551. This case
supports the proposition canvassed by Mr. Misra except that the authority makes
it very clear that the intimation, whether oral or in writing, must be from the
Court. Mr. Misra also relied upon the case of Food Corporation of India v. E.
Kuttappan
reported in (1993) 3 S.C.C. 445, wherein again it is reiterated that the notice
need not be in writing. In this case the Arbitrator had forwarded the Award
along with the entire record to the Respondent's counsel. This was done at the
request of the Respondent's counsel. The Respondent's counsel then filed the
Award in the Court. The Court thereupon issued notice to the parties. The
question was what was the date from which the period of limitation started
running. This Court held that as the Respondent's counsel filed the Award in
Court he did so as an agent of the Arbitrator. It was held that as the
Respondent's counsel had filed the Award in the Court the Respondent had
knowledge about the filing of the Award and the period of limitation started
running from the date when the Award was filed in the Court by the Respondent's
counsel. This Court held that the mere fact that subsequently Court had issued
a notice to the parties did not extend the period of limitation. Thus in this
case the notice by Court was deemed to be the act of the Respondent's counsel
in filing the Award in Court. Mr. Misra also relied upon the case of Secretary
to Govt. of Karnataka v. V. Harishbabu reported in (1996) 5 S.C.C. 400. In this
case it has been held that even though a notice under Section 14(2) is
mandatory, such notice need not be in writing and may be oral. It has also been
held that no formal mode for service has been prescribed and all that is
essential is that notice or intimation or communication must be issued by the
Court to the parties and served upon the parties. It is held that the notice to
the pleader is sufficient compliance with Section 14(2) of the Arbitration Act.
It is held that where a party has knowledge aliunde of the filing of the Award,
appears before the Court and seeks time to file objections to the Award, it
shall be deemed that he has notice of filing of the Award. Mr. Misra then
showed to Court the Order Sheets. He pointed out from the Order Sheets that the
Award had been filed on 14th
May, 1996. He
submitted that admittedly the Respondent had received the notice from the
Arbitrator/Umpire that the Award had been so filed. He submitted that the
Respondent then filed Caveat on 11th June, 1996. He submitted that the Respondent having been put to notice
should have appeared in the Court on 19th June, 1996 when the matter was again placed
before the Court. He submitted that after 19th June, 1996 the matter again appeared before
the Court on 11th July,
1996 and 16th July, 1996. He submitted that as the
Respondent had, aliunde, got knowledge of the filing of the Award the period of
limitation had started to run. He submitted that the fact that the Respondent
had not appeared in Court on 11th July, 1996
and 16th July, 1996 did not stop limitation. He
submitted that the period of limitation having started to run the objections
filed on 21st August,
1996 were beyond the
period of limitation. There can be no dispute with the proposition of law that
the notice need not be in writing and can be oral. However, all the authorities
clearly lay down that the notice must be some act of the Court. The proposition
that a notice must be by the Court is also confirmed by an authority of this
Court in the case of Ch.
Back