India Hotels Ltd. Vs. Agra Development Authority  Insc
163 (21 March 2001)
Shah Mohammad Quadri & S.N. Phukan. Phukan, J.
these appeals by special leave, appellant has assailed the judgement dated
1.10.1999 of the High Court of Allahabad passed in Civil Revision No.106 of
1999. The appellant filed an application under Section 20 of the Arbitration
Act, 1940 (for short the Act) before Additional Civil Judge, Agra, which was allowed and the disputes between the
parties were referred to arbitration.
the proceedings were concluded, the Umpire filed the award before the court on
13.11.1998, which was made rule of the court by order dated 25.02.1999. Being
aggrieved, the respondent filed a revision petition before the High Court,
which was allowed by the order under challenge, on the ground that no notice
under sub-section (2) of Section 14 of the Act was served on the respondent.
appreciate the contentions raised by the learned counsel for the parties, it is
necessary to refer to the orders passed by the trial court on different dates: 13.11.1998
Case was called for. The Parties are absent. The Award was filed by the Umpire
Narain Agarwal, learned counsel for East India Hotels and Shri Suresh Chandra
Gupta, learned counsel for Agra Development Authority be informed. Umpire Shri Jethanandji
shall place on record all the papers concerning the Award within fifteen days.
put up on 14.12.1998 for further orders.
Addl. Civil Judge (Sr. Division) Agra.
for filing of the Award.
13-11-1998 (Counsel for East India Hotel).
19-11-1998 For ADA (Parokar) Kirpa Shankar.
Suresh Chander Gupta Sr. Standing Counsel, ADA
28.11.1998 case record was put up and the court recorded the fact of filing of
papers concerning the award by the Umpire, as directed by the court and further
directed to put up the case on the next date fixed. On 14.12.1998 the presence
of the parties was noted but the court could not take up the case for want of
time. That order was duly noted on behalf of the respondent. On 4.01.1999 the
court recorded filing of the application under Section 17 of the Act by the
appellant and noted that a copy was supplied to the respondent who prayed for time
to file reply. The case was put up on 7.01.1999, presence of parties was
recorded and the next date was fixed on 14.01.1999 as on that date the case
could not be taken up on account of strike by the lawyers. On 19.02.1999
parties were present in the court, arguments were heard and on 25.02.1999, the
award was made rule of the court.
have now to determine as to what amounts to service of notice under sub-section
(2) of Section 14 of the Act.
learned senior counsel has contended that notice under sub-section (2) of
Section 14 need not be in writing and what is essential is that notice or
intimation or communication of filing of Award must be issued and communicated
by the court to the parties. According to the learned counsel notice to the counsel
representing the party would be sufficient compliance in view of Rule 5 of
Order III C.P.C. The learned senior counsel has further submitted that as the
order passed by the trial court on 13.11.1998 was noted by the learned standing
counsel for the respondent, it was sufficient notice under sub-section (2) of
Section 14 of the Act. In the alternative it was contended by the learned
senior counsel that if the said order dated 13.11.1998 is not accepted as
notice under sub- section (2) of Section 14 as along with the award, the
records were not filed by the Umpire, the order dated 14.12.1998 would amount
to notice, as the order was passed by the trial court after records were filed
by the Umpire and it was duly noted on behalf of the respondent.
learned senior counsel for the respondent drawing our attention to the language
of sub-section (2) of Section 14 of the Act, has contended that only after
award along with depositions and connected documents are filed by the
Arbitrator/Umpire, the stage of issuance of notice under said sub-section (2)
would arise. In this connection learned counsel has also placed reliance on
Rule 8 of the Arbitration Rules framed by the Allahabad High Court.
to the learned senior counsel as on 13.11.1998 records from the Umpire were not
received by the court, the said order though noticed by the learned counsel for
the respondent would not be a notice to the parties.
extract below sub-section (2) of Section 14 of he Act: 14. (2) The arbitrators
or umpire shall, at the request of any party of 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 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.
perusal of the above provision, shorn of unnecessary details, it is clear that
notice under sub-section (2) of Section 14 of the Act need not be in writing
and that it can also be oral. What is essential is that there must be service
of notice or intimation or communication of the filing of the award to the
parties, mode of service of such a notice being immaterial. But such
information, communication and knowledge must be by or pursuant to order of the
court. However, after filing of an award by the arbitrator or the Umpire in the
court, if it merely records the presence of the parties or their counsel but
does not indicate that notice of filing of the award be given to the parties,
no service of notice can be attributed from that fact, as notice must be referable
to an act of the court.
shall refer to the cases cited by the learned counsel. In Nilkantha Shidramappa
Ningashetti vs. Kashinath Somanna Ningashetti and Others 1962 (5) SCC 400, a
four judge bench while considering sub-section (2) of Section 14 of the Act
held as follows:
(1) of Section 14 of he Arbitration Act, 1940 (X of 1940) requires the
arbitrators or umpire to give notice in writing to the parties of the making
and signing of the award. Sub-section (2) of that section requires the Court,
after the filing of the award, to give notice to the parties of the filing of
the award. The difference in the provisions of the two sub-sections with
respect to the giving of notice is significant and indicates clearly that the
notice which the Court is to give to the parties of the filing of the award
need not be a notice in writing. The notice can be given orally. No question of
the service of the notice in the formal way of delivering the notice or
tendering it to the party can arise in the case of a notice given orally. The
communication of the information that an award has been filed is sufficient
compliance with the requirements of sub- section (2) of Section 14 with respect
to the giving of the notice to the parties concerned about the filing of the
award. Notice does not necessarily mean communication in writing. Notice,
according to the Oxford Concise Dictionary, means intimation, intelligence,
warning and has this meaning in expressions like give notice, have notice and
it also means formal intimation of something, or instructions to do something
and has such a meaning in expressions like notice to quit, till further notice.
We are of opinion that the expression give notice in sub-section (2) of Section
14, simply means giving intimation of the filing of the award, which certainly
was given to the parties through their pleaders on February 21, 1948. Notice to
the pleader is notice to the party, in view of r.5 of O.III, Civil Procedure
Code, which provides that any process served on the pleader of any party shall
be presumed to be duly communicated and made known to the party whom the
pleader represents and, unless the Court otherwise directs, shall be as
effectual for all purposes as if the same had been given to or served on the
party in person.
Secretary to Govt. of Karnataka and Another vs. V. Harishbabu 1996 (5) SCC 400
this court had occasion to consider again sub-section (2) of Section 14 of the
Act, the Bench noticed the judgment passed in Nilkantha Shidramappa Ningashetti
vs. Kashinath Somanna Ningashetti and Others (supra) and held that notice under
sub-section (2) of Section 14 of the Act need not be in writing and it might be
oral and there should be no formal mode of service; what is essential is that
notice or intimation or communication of the filing of the award must be issued
by the court to the parties and served upon the parties. The dictum in these
cases support the view, we have expressed.
13.11.1998 the Trial Court recorded the fact of filing of the award by the
Umpire and directed that learned counsel for the parties be informed. This
order was duly noted by the counsel for both the parties. In our opinion the
essential requirement of sub- section (2) of Section 14 was duly complied with
inasmuch as intimation of filing the award to the parties was communicated. As
notice to the counsel is notice to the party, the above order dated 13.11.1998
together with the endorsement of the advocate on the proceeding sheet would
amount to a proper and valid service of notice under sub-section (2) of Section
14 of the Act. We have already mentioned that as per the direction of the court
Umpire also filed the record. We, accordingly hold that order dated 13.11.1998
which was noted by the learned counsel, would amount to a valid notice under
sub-section (2) of Section 14. We, therefore, need not consider the alternative
arguments of Dr. Singhvi.
now consider the submission of Mr. Dwivedi, learned senior counsel for the
respondent. Learned senior counsel has contended that the stage of issuance of
notice would come only after filing of the records by the Arbitrator/Umpire and
as no records were filed on 13.11.1998, the order passed by the court on that
date could not be treated as notice to the parties. We cannot accept this
contention. From a plain reading of sub-section (2) of Section 14 it would
appear that under this sub-section the stage at which notice is required to be
given by the court is after filing of the award and the notice pertains to the
fact of filing of the award in Court. It is the duty of the Arbitrator/Umpire
to file depositions, documents, etc. along with the award. If only award is
filed and other documents are not filed, the Court may issue notice under this
sub-section after the award is filed. It need not postpone issuing of notice
till all the documents are filed. In our view a notice issued after filing of
the award but before filing of other documents is a valid notice under
sub-section (2) of Section 14 of the Act and no fresh notice need be issued
after filing of other documents by the Arbitrator/Umpire.
case on hand by order dated 13.11.1998, court not only directed issuance of the
notice to the parties of the filing of the award but also directed the Umpire
to file the records which was duly compiled with by the Umpire before the next
date of hearing. After taking notice of filing of award no controversy was
raised by the respondent regarding not filing of the records till the award was
made rule of the court nor could it have raised such a controversy on the
facts. In fact after filing of the application under Section 14 of the Act by
the appellant, time was prayed for to file a reply on behalf of the respondent
but no such reply was filed. In view of the above position, we are of the opinion
that the contention of Mr. Dwivedi has no force and accordingly it is rejected.
has also pressed into service Rule 8 of the Arbitration Rules framed by the
High Court. This rule prescribes the mode of filing of the award and the
procedure to be followed by any party, if the records are not filed by the
Arbitrator/Umpire. This rule does not speak of issuance of notice by the court
under sub-section (2) of Section 14 and, therefore, would not be relevant for
the present purpose.
on Rule 6 of the Arbitration Rules, Mr. Dwivedi has contended that the order
passed by the court on 04.01.1999 could not be construed as a notice. This
point needs no consideration as no submission was made on behalf of the
appellant that the order passed on that date would be a notice under sub-
section (2) of Section 14 of the Act.
what has been stated above we find merit in the present appeals and accordingly
they are allowed by setting aside the impugned judgment. The order of the
Additional Civil Judge, Agra dated 25.02.1999 making the award a
rule of the court is affirmed. Considering the facts and circumstances of the
case, we direct the parties to bear their own cost.