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Judgment
Jaganmohan Reddy, J.—These three C. M. As. 3/53, 349/56 and 351/56 are against the orders of the Principal Subordinate Judge, Masulipatnam, dated 7-10-1952 in I. A. No. 105 of 1951 in O. S. No. 25 of 1948, I. A. No. 103 of 1951 in O. S. No. 11 of 1948 and I. A. No. 106 of 1951 in O. S. No. 29 of 1948 respectively. The plaintiff in O. S. No. 11 of 1948 (sic) a creditor and that in O. S. Nos. 25 and 29 of 1948 is another creditor of a partnership firm called Sri Sitarama Rice Mill Contractors Company, Avanigadda.
Both the plaintiffs seek to recover amounts advanced to the suit firm. In another suit O. S. No. 23 of 1948 the plaintiff alleged that he and defendants 1 to 10 entered into a partnership (sic) work the above rice mills which was the property of the 11th defendant for one year, viz., (sic)47. In that suit the plaintiff alleged that (sic)ough the partnership was dissolved as and (sic) 31-12-1947, defendants 1 to 3 who are responsible for the management of the business re(sic)sed to render a true and correct account of (sic) partnership or to concur in taking and settl(sic) the same.
As a result the suit was filed for dissolution partnership if need be and for settlement of counts of the partnership and payment of his (sic)re. The defendants filed written statements (sic) issues were also framed. From the issues (sic)ed it appears that the plea of the contest(sic) defendants was that there was a valid settle(sic)it of accounts in respect of the partnership.
As already observed in the three suits O. S. (sic) 11, 25 and 29 of 1948 the contesting defendants raised the plea that the plaintiffs in these (sic) are not possessed of any means to advance amounts and the entries made in the ac(sic)t books were dishonest and nominal and frequently the claim was not true. When all (sic)e four suits came up for trial the parties separate petitions in each of the suits on (sic) 1950 under S. 21 of the Arbitration Act to (sic) the matter in these suits for arbitration to (sic) named persons.
The court passed orders on all these peti(sic) on 26-9-1950 to which we shall advert later(sic). The arbitrators after taking'' some adjourn(sic)s ultimately filed three awards in court in of these suits on 14-12-1950. The awards subject-matter in these three C. M. As., bear date 4-12-1950 while the one in O. S. No. 23 (sic)18, subject-matter of another C. M. A. which (sic) before us, bears the date 12-12-1950.
(sic)e of the defendants in all these four suits, (sic)y, Badarla Ramakrishnamma has filed aP(sic)ions under Ss. 19 and 30 of the Indian Arbi(sic) Act X of 1940 to set aside the award in respect of the suits. It may also be that on the petitioner''s applications, one (sic) namely the 12th defendant, L. Rama(sic)legal representative of the deceased 11th (sic)ent in O. S. No. 23 of 1948, was examined. (sic) petitioner in the three suits O. S. Nos. (sic) and 29 of 1948 raised the same objections (sic)hing the validity of the award on various (sic)s and after due consideration of these (sic)s the Subordinate Judge, Masulipatnam, (sic)hat there was neither illegality nor mis-(sic)t apparent on the face of the record in (sic)ee suits, nor was there anything to show (sic)e arbitrators were guilty of misconduct or (sic)ing misconducted the proceedings. In (sic)w he refused to set aside the awards and (sic)the suits according to the awards.
So far as I. A. No. 104 of 1951 in O. S. No. 23 of 1948 was concerned, he held that the arbitrators had misconducted the proceedings and were also guilty of misconduct in giving the award and consequently set aside the award. With respect to this order C. M. A. No. 350 of 1956 was filed. As we have already observed we are only concerned with the C. M. As. arising out of the orders in I. A. Nos. 105, 103 and 106 of 1951 in O. S. Nos. 25, 11 and 29 of 1948 respectively.
Before us the learned advocate for the appellants Sri P. Somasundaram, apart from requesting us to take into consideration the fact that the arbitrators have been found guilty of misconduct in I. A. No. 104 of 1951 in O. S. No. 23 of 1948 in determining these three O. M. As.; has urged the following four points against the validity of the awards viz.; (1) that the orders passed by the Subordinate Judge in all the three I. As. were not in accordance with Cl. (1) of S. 23. of the Indian Arbitration Act (hereinafter called the Act) or with the second part of the said clause thereof; (2) that notice of the making and signing of the award by the arbitrators was not given to the parties as required by Cl. (1) of S. 14 of the Act which vitiates the awards; (3) that the Court did not extend the time after 11-10-1950 but only posted the matter to be called on 12-12-1950 and from 12-12-1950 to 13-12-1950; (4) that the arbitrators did not take part in the making of the award; and (5) that the statements given by one party were not put to the other party and were accepted without giving such an opportunity. We shall now proceed to deal with the above points seriatim.
With respect to the argument that the provisions of Cl. (1) of S. 23 of the Act have not been complied with and in particular, the mandatory provisions of the second part of the said clause, the contention is based on the orders passed by the court on the I. As. filed to, the respective suits. In all the three suits, the subject-matter of these appeals, separate I. As. 1092, 1090 and 1093 of 1950 were filed under S. 21 of the Arbitration Act for referring the matter to the arbitration of three named arbitrators, viz.; Yenduri Mangaraju Garu, Cherukuru Anjayya Garu, and Vemuri Venkataratnam Garu. Exs. A-3, A-1 and A-4 are the said applications in O. S. Nos. 25, 11 and 29 of 1948 and A-3 (a), A-1 (a) and A-4 (a) are the orders passed on the respective applications by the Subordinate Judge of Bandar.
The applications stated that these petitions were filed by the parties under S. 21 of the Act, that the parties who have signed have agreed to the above-mentioned three arbitrators to give awards on the entire matters in dispute in the said suits after examining the oral and documentary evidence, and that the parties agreed to treat the decision (award) to be given by the above three arbitrators unanimously or by the majority of them as the final decision.
They, therefore, prayed that the Court may be pleased to hand over the record in the above suits to Yenduri Mangaraju Garu, the first arbitrator, for the purpose of the award to be given by the above mentioned three arbitrators. The court in all the three suits passed similar orders dated 26-9-1950 as under:
Plaintiff and defendants pray that the suit may be referred to the named arbitrators. The matter is therefore referred to the arbitration of the arbitrators mentions in the petition. Necessary papers may be given to the first arbitrator mentioned in the petition.
Learned advocate for tile appellant submits that the Court has nowhere in these orders specified any time for the making of the award and consequently the provisions of S. 23 which are mandatory are contravened. In support of this contention he has cited Nusserwanjee Pestonjee v. Meer Mynoodcen Khan, 6 Moo Ind App 134 (A); Raja Harnarain Singh v. Chaudhrain Rhagwant Kuar, ILR 13 All 300 (B); Lachman Das v. Abparkash, ILR 30 All 169 (C); and Robindra v. Jogendara, 27 Cal WN 420: (AIR 1923 Cal 410) (D). Clause (1) of S. 23 of the Act is in the following terms:
The Court shall, by order, refer to the arbitrator the matter in difference which he is required to determine, and shall in the order specify such time as it thinks reasonable for the making of the award.
This section is substantially similar to part (3) of the second Schedule of the CPC of 1908, which in turn corresponded to S. 508 of the CPC of 1882 and S. 315 of the CPC of 1859. A plain reading of Cl. (2) of the said section shows that it deals with two matters, viz.; that in order to comply with the clause the court must by its order make a reference and secondly that it must fix such time as it thinks reasonable for the making of the award.
There is no doubt that these two requirements are mandatory and unless complied with do not vest any jurisdiction in the arbitrator. If they are complied with then the provisions of Cl. (2) of S. 23 preclude the Court, except in the manner and to the extent provided in the Act, to deal with the matters in the suit referred to arbitration. The fixing of the time by the Court within which the arbitrators have to make their award is mandatory and not directory.
This proposition is no longer res integra. The Privy Council over a century ago in 6 Moo Ind App 134 (A), dealing with the arguments advanced namely that under Cl. (1) of S. 3 of Regulation VII of 1827 pertaining to submission to arbitration, the requirement relating to the insertion of time within the award is to be made was directory only, felt at a loss to construe it in that way.
It was there further argued that the insertion of time in the third section was done keeping in view the provisions of the 7th Section in which it was indicated that if a suit be instituted pending arbitration that suit may be stayed, upon proof that the suit and arbitration related to one matter and that the time for making the award has not expired. This was considered to be an ingenious and farfetched argument.
Their Lordships, after adverting to the delays which took place in the Panchayats as the reason for the insertion of the provisions relating to time in the third section of the Regulation, examined the argument that this provision could be waived by the consent of the parties and observed at page 161 as follows:
If, indeed, we could have been satisfied that the time was merely directory, the case might have been very different. Their Lordships are all quite clearly of opinion that they must take it that the Legislature of India meant distinctly to prescribe that any deed of reference under which an award was to be made, to have the force of a decree of the Zilla Court should contain all those matters which are specified in the section of Regulation to which I have already referred.
And these matters being omitted, their Lordships have, therefore, come to the conclusion that, although the award may have been a very good one in itself, it cannot have the force which this Regulation would have given to it if it had contained all the requisites which the section specify.
In ILR 13 All 300 (B), the Privy Council aga(sic) held that the provision relating to the time i(sic) S. 508 of the CPC of 1882 was not merely directory, but mandatory and imperative; otherwise S. 521 which declares that r(sic) award shall be valid unless made within the period allowed by the Court, would be rendered inoperative.
In ILR 30 All 169 (C), a Bench of Allahabad High Court held that where an order of re(sic)rence to arbitration made by a Court omits fix a date for the delivery of the award, su(sic)omission is not a mere irregularity, but is a defe(sic)fatal to the order and to all subsequent proceedings founded thereon. Sir George Rankin 27 Cal WN 420 : (AIR 1923 Cal 410) (D) deali(sic) with the provisions of the third clause of S. (sic) of the Code of Civil Procedure, 1882, dealt w(sic) the matter at p. 425 (of Cal WN): (at p. (sic)of AIR) in the following words:
If after an order of reference a Co(sic) wrongly proceeded to try the suit, it would c(sic)travene an express prohibition. If by the (sic)der of reference no time is fixed at all, the e(sic) is of the same class; no time limit means control; and the Court is not authorised abandon control save to the extent and upon terms laid down.
As against these decisions the learned advo(sic) for the respondent has referred us to a Be(sic) decision of the Madras High Court in Muthu(sic) Nayakan v. Acha Nayakan, ILR 18 Mad 22 where following ILR 13 All 300 (B), the p(sic)sions of S. 508 of the CPC 1882 were held to be directory and not ma(sic)tory. The decision of the Privy Council in Har Narain Singh''s case (B), which arose di(sic)ly on the provisions of S. 508 of the Code of Civil Procedure, 1882, does not appear to have cited.
The Privy Council in the above case dealing with an order of reference made by Court which did not specify directly any but merely fixed a date for the hearing o(sic) case. In these circumstances their Lord(sic) held that the requirements as to time in (sic) were mandatory, though in the particular circumstances of the case they held that the (sic)sion of time was valid under S. 514.
Generally speaking, therefore, where th(sic) no time limit fixed for the return of the (sic) the reference is a nullity inasmuch as the (sic)sion for fixing a time is mandatory. It is clear that if the order of the Court in Ex(sic) (a) and A-2 (a) and A-3 (a) was the only the contention of the learned counsel f(sic) appellant would have great force; but (sic) case though the order on the application c(sic) specifically mention the time, the orders (sic) note paper made on the same day clearl(sic)cate that time was fixed in all the three for the filing of the award. In O. S. No. (sic) 1948 the order dated 26-9-1950 is as follow:
I. A. No. 1090 of 1950 filed under S. 2(sic) Arbitration Act and allowed. Matter referred(sic) Arbitration. For award 24-10-1950.
Similar orders were passed in O. S. Nos. 29 and (sic)5 of 1948 with reference to I. As. 1093 and 1092 of 1950 respectively. Thereafter the note paper of all the three suits shows that time was expended oh seven occasions and on the last date, viz.. 13-12-1950 the note reads thus:
Arbitration award filed. For objections if any 12-1-1951.
Learned advocate for the appellant contends firstly that the time should have been specified on the order passed on the application itself and the orders on the note sheet do not indicate that they were made by the Court. Both these contentions, in our view, are untenable. The contention that the orders in the note paper are (sic)ot made by the court is evidently based upon copy of the note paper prepared by the office (sic)d kept in the records sent in the appeals.
On a reference to the original note paper, which was sent for, we found that each of the (sic)ders passed in the suits was signed by the Judge, and were, therefore, the orders of Court, is, therefore, clear that the court by its orders dated 26-9-1950 not only allowed the applications (sic)r reference of the matter to arbitrators, but so fixed the time for the filing of the award, (sic)e orders on the I. As. as well as the orders (sic) the note sheet must be read together and if (sic)ey are so read, the requirements of the manda(sic)y provisions of Cl. (1) of S. 23 are fully com(sic)ed with and the awards cannot be assailed on (sic)at ground.
It is then contended that the notice of (sic) signing and making the award by the arbi(sic)tors as required by Cl. (1) of S. 14 of the Act (sic)s not given to the parties and that the omis(sic)n to do so vitiates the awards. Section 14 is as (sic)ows:
(1) When the arbitrators or umpire have (sic)de their award, they shall sign it and shall (sic)e notice in writing to the parties of the mak(sic) and signing thereof and of the amount of (sic) and charges payable in respect of the arbitration and award.
(2) The arbitrators or umpire shall, at the (sic)est of any party to the arbitration agreement or any person claiming under such party (sic) so directed by the Court and upon payment the fees and charges due in respect of the arbitration and award and of the costs and char(sic)of filing the award, cause the award or a (sic)ed copy of it, together with any depositions documents which may have been taken and (sic)ed before them, to be filed in Court, and the (sic)t shall thereupon give notice to the parties (sic)e filing of the award.
(3) Where the arbitrators or umpire state (sic)ecial case under Cl. (b) of S. 13, the Court, (sic) giving notice to the parties and hearing (sic), shall pronounce its opinion thereon and (sic) opinion shall be added to, and shall form of the award.
(sic)se (1) of the above section requires two (sic)s to be done by the arbitrators when they (sic) their award (a) that they shall sign it and (sic)hat they shall give notice in writing to the (sic)s of the making and signing thereof and amount of fees and charges payable in res(sic) of the arbitration and award. The question (sic)ether the provision relating to the giving of (sic) in writing to the parties is mandatory or (sic)ory.
Learned advocate for the respondent con(sic) that the provision relating to the giving of notice is directory inasmuch as the intention of the legislature was merely to intimate to the parties to the submission that an award has been made and as the Court has given notice under sub-s. (2) of S. 14 of the award having been filed in terms of Ex. B-1 on 12-1-1951 no prejudice has been caused. The only reason for the provision relating to the giving of notice of signing of the award, according to the learned advocate for the respondent, is that any of the parties to the submission may apply either to have the award set aside or remitted or for having the same made a rule of the Court.
There can be no doubt that under the section the signature of the arbitrator or arbitrators to the award is absolutely necessary. The arbitrator when making an award must make up his mind upon the matter referred to and if there are more than one, they should or the majority of them where the decision is to be by the majority act together and finally make up their minds by arriving at a decision which must be expressed in writing and signed. This requirement is imperative.
This imperative requirement of the signing of the award is expressed by the word ''shall''. The absence of any of the requirements relating to the making of the award would make the award a nullity. The question is whether after the making and the signing of the award the next requirement relating to the giving of notice in writing to the parties of the making and signing thereof is mandatory.
No doubt the same word ''shall'' has been used with respect to this requirement which ex facie would appear to indicate that this is a mandatory provision. In order to determine whether a particular provision is mandatory or directory, it would be necessary to ascertain whether the omission to comply with the requirement affects the very foundation or authority for the proceedings so as to make it void and incapable of being validated. It is always difficult to demarcate with any degree of accuracy in a particular case what is mandatory and what is directory or what is irregularity and what is a nullity.
When a question arises as to how far the proceedings are affected by the contravention of any provision it is necessary to see the scope and object of the particular provision which is said to be violated. It is true, as submitted by the learned advocate for the appellant, that the word ''shall'' is generally understood to be mandatory. It is also true that the same word should not be interpreted in two different ways in tile same section.
This is an established proposition and requires no elaborate examination of the case law. Their Lordships of the Supreme Court in K.N. Guruswamy Vs. The State of Mysore and Others, observed:
...The same word appearing in the same section of the same set of rules must be given the same meaning unless there is anything to indicate the contrary." Whether the same word used in the same section intends to express the same meaning or a different meaning would depend upon what the Legislature intended to provide in each case. Though the word ''shall'' is ordinarily in the imperative sense, it has been understood to give the meaning attached to the word ''may'' and similarly the word ''may'' sometimes has been used to convey the force of ''shall''. As aptly observed by Bowen L. J., in Cooke v. New River Co., (1888) 38 Ch D 56 (G):
...After all the word ''shall'' is only future tense and colourless, but it may receive, and it does receive, in ordinary language either a compulsory colour or an optional colour from the context, and I do not think there is anything very violent (although it is not altogether an apt way of using it) in giving the optional meaning to it where you find it coupled with the phrase ''at their own instance'', just as you say that a person shall, if he chooses, go out for a walk, which means that he shall have the power of doing it.
In that case S. 41 of the New River Company Act which is in the following terms came up for Consideration:
That the company shall, at the request of any consumer of water for purposes other than the purposes for or in respect of which the rates or charges are hereinbefore provided or limited, or at their own instance, afford a supply of water by means of a meter or other instrument or mode for measuring and ascertaining the quantity of water so supplied....
The provision was so drafted that a plain reading would indicate that the authority was to act upon the request of any consumer and after that using the words of compulsion, the Legislature passed on to use words of option, still retaining the word ''shall'' when it deals with the action to be taken by the company on its own initiative. It is with respect to this provision that Bowen L. J., at p. 69 said:
...the word ''shall'' is compulsory when it is dealing with the action of the company set in motion by the request of the consumer, but that when it passes to the act of the company upon its own initiative it takes a colour from the words ''at their own instance'' which give to the word ''shall'' not altogether inappropriately, the meaning of ''may''." The object of the Legislature in providing for the giving of a notice in writing of the making and signing of the award was evidently for the purposes of Art. 178 of the Limitation Act where 90 days have been prescribed for the filing in Court of an award from the date of the service of the notice of the making of the award. Prior to the Arbitration Act of 1940 which repealed a similar provision in the Civil Procedure Code, Art. 178 which was also amended to the present form provided for six months limitation from the date of award.
Section 49 and the IV schedule of the Arbitration Act of 1940 reduced the period to one of 90 days and changed the starting point from the date of the award to the date of service of notice of making the award. There is nothing in sub-s. (1) of S. 14 to say that the notice of signing of the award must be given at the same time as the signing of the award. It therefore follows that it can be given at any time subsequent without making the award, which is otherwise, valid invalid by the omission to give such notice.
The Article of the Limitation Act in the present form does not apply to an arbitrator filing the award either on his own motion or on the request of the party, but only to an application by a party under sub-s. (2) of S. 14 to be filed within 90 days of the service of notice of the making of the award and once it is filed the Court is required to give notice to the parties of the filing of the award.
On such notice being given the time for applying to have the award remitted or set aside, prescribed in Art. 158 of the Limitation Act is 30 days from the date of the service of the notice. There is no provision under the English law as is provided under S. 14 of the Act. The only provision is O. 64, R. 14 which is framed for the calculation of time, which is six weeks from the publication of the award to the parties for applying to set aside the award and consequently the English decisions relating to publication are of no assistance in arbitrations governed by the Act.
It is, therefore, clear that the provision relating to the giving of notice of the signing of the award by the arbitrator under sub-s, (1) of S. 14 was directly for the purposes of limitation under Art. 178 of the Limitation Act entitling either party for applying to have the award filed. Non-compliance with this provision does not therefore, vitiate the award as such and cannot bar the right of a party to the submission to file an application as time would not commence to run.
Learned advocate for the appellant (sic) lies on the authority of Venkataramayya Papayya, 1943-2 Mad LJ 152: (AIR 1943 M(sic) 718) (H), in support of his contention that t(sic) omission to give notice of the signing of the award is a material irregularity which warran(sic) the setting aside of the award. This is a judgment of Horwill J. There the award was fill(sic) on 26-4-1941 signed by three of the arbitrate only and as that was the last day on which t(sic) Court sat before the summer vacation it was (sic) (sic)dered to be called on 11-6-1941 on which date petition to set aside the award was filed and t(sic) suit was. decreed in terms of the award.
In the revision the validity of the aw(sic) was challenged on the ground that the provision of the Arbitration Act were not complied with that no notice was given either by the arbitrators or by the Court, that they had no opportunity to file objections and that the decree therefore, a nullity. It was held that from examination of the ''B'' Memo it did appear (sic) bable that the pleaders of the parties did know of the filing of the award.
Horwill J., relying upon the authorities Rangaswamy v. Muthuswami, ILR 11 Mad (I), which was followed by the Allahabad (sic) Calcutta High Courts in Chatarbuj Das(sic) Ganeshram, ILR 20 All 474 (J) and Ranjit Chandra Talukdar and Others Vs. Bissay Ram Mandal and Others, observed:
I am therefore not at all sure that failure to comply with the mandatory provis(sic) of the Arbitration Act did not lead to an justice in preventing the defendants from (sic)ing objections to the award." He further found that this was not the only (sic)fect, for, all those who expressed the opinion the award had not signed it and the fifth (sic)trator who filed the award was not one of dissentients and yet he had not signed award in the above case was set aside for compliance with the provisions relating to signing of the award and the notice to be (sic) by the Court under sub-s. (2).
As we have already stated the provision (sic)lating to the making and signing of the a(sic) is mandatory and the omission to do so (sic) vitiate the award. It is equally true tha(sic) omission by the Court to intimate the parti(sic) the filing of the award is also against a m(sic) tory provision because it is designed to give an opportunity to the parties to file their objections against the award, the non-compliance of which will certainly vitiate the award.
There appears to be no consideration of the question whether the omission by the arbitrators (sic)o give notice to the parties of the making and (sic)igning of the award would be a material irregularity affecting the foundation of the award. (sic)n ILR 11 Mad 144 (I), the question was again (sic)aised whether the omission by the arbitrators to (sic)ive notice of the filing of the award to the paries as required by S. 516 of the CPC of 1882 was a material irregularity (sic)nd the bench of the Madras High Court held (sic)at it was sorder 64 rule 14
As the decree was passed in terms of the ward without notice to the parties and without earing the objections of the petitioners who (sic)ere entitled to be heard, the decree was set (sic)ide. Section 516 of the Code merely provided (sic)r the giving of the notice by the arbitrators (sic)out the filing of the award and there was no (sic)ovision similar in nature to that in sub-s. (1) (sic)S. 14.
It is obvious that the non-compliance of any (sic)tice relating to the filing of the award in court would be fatal because the parties who (sic)ve a right to urge their objections and to be (sic)ard would have no opportunity if that provi(sic)n is not complied with.
On the other hand in Janardanprasad v. (sic)andrasekhar, ILR (1950) Nag 983: (AIR 1951 (sic)g 198) (L), Bose C.J., as he then was & Deo J., (sic)iling with the question whether the non-com(sic)ance of the provision relating to the notice under sub-s. (1) of S. 14 would make the award (sic)alid observed:
...the award becomes valid and (sic)al so far as the arbitrators or umpire are con(sic)ned the moment it is made and signed by (sic)m. The provision for giving notice in writ (sic) to the parties of the making and signing thereof and of the amount of fees and charges (sic)able in respect of the arbitration and the (sic)rd is for the purpose of limitation under S.178 of the Limitation Act, entitling either (sic)y to apply to the Court for the filing in (sic)rt of the award.
No time is fixed for the giving of such notice the arbitrator and it has been held in several (sic)s that it may be done within reasonable (sic) either by the arbitrator or by his agent. A (sic)ce may be given to one party and may not given to another party for a much longer (sic)d. It cannot be said that an award becomes (sic) so far as the first party is concerned and as against the other entitling the arbitrators (sic)rap the award and make a fresh one.
(sic) summed up the position as follows:
...There is thus a fundamental (sic)rence between the making, signing and deli(sic) of a judgment and making and signing and (sic)g notice of an award. In the former case (sic)ree must be simultaneous acts and parts of same transaction. In the latter case the two may be simultaneous and the notice of (sic)ward can be postponed.
That award does not become invalid because (sic) of the making of it has not been given, arbitrator is entitled to file an award in under S. 14, sub-s. (2). if he does so, the is bound to give notice to the parties of (sic)ling of the award.
In that case the arbitrators had made and signed an award on 11-1-1944. It was presented for registration and was registered on 13-1-1944. Thereafter the arbitrators made a second award on 26-1-1944. It was contended that as they did not pronounce the award by issuing a notice of having signed it, they had not become functus officio and could, therefore, make and deliver the second award dated 26-1-1944.
On these facte and contentions the learned Judges refused to hold that the first award was not final and could be superseded by the second award, because no notice was given before 26-1-1944. We also agree with this view that the non-compliance with the requirement of giving notice under sub-s. (1) does not make the award invalid. In the case before us the award was made on 4-12-1950 and filed in Court on 13-12-1950 when........the Court made an order fixing 12-1-1951...........to file objections, if any, as required under sub-s. (2) of S. 14.
The parties, therefore, had full notice of the making and signing of the award and of its having been filed in order to enable them to take such steps as would be open to them under the Act.
We may further observe that the provisions of S. 14 are in Chapter II which deals with the arbitration without the intervention of the Court, while Chapter III deals with arbitration with the intervention of the Court where no suit is pending and Chapter IV, Ss. 21 to 24, deals with arbitration in suits pending before the Court. Section 25 states that the provisions of the other chapters shall, so far as they can be made applicable, apply to arbitration under this Chapter.
It is clear, therefore, that the provisions of S. 14 (1) are applicable so far as it is possible to apply to cases of arbitration in suits pending before the Court. Where, therefore, a court has fixed time for making and filing the award, the objection of giving notice of the making and signing of the award which is so necessary in private arbitrations loses its significance because of the provisions in sub-s. (2) of S. 14 and no question of limitation would arise if the award is filed within the time which the Court has to fix under S. 23 or within such time as the Court under S. 28 may have extended.
That apart the reason why notice has to be given in private award is to enable the parties to apply to the arbitrators or the Court for having the award filed in Court. If this is the object and the same has been achieved in the case of arbitration in suits pending before Courts then the only mandatory provisions of S. 14 would be that relating to the notice being given by the Court of the award having been filed. In our view, therefore, the award cannot be declared invalid on the ground also.
The third contention, namely that the Court had not extended time after 11-12-1950 and consequently the award was filed after the expiration of the date fixed by the Court has also no force on the facts on record. The Court has been extending time up to 11-12-1950 and on that date the proceedings read thus:
Arbitration by Manga Raju Garu not filed. Time extended 12-12-1950.
On 12-12-1950 again time was extended to 13-13-1950 and on 13-12-1950 the arbitration award was filed. Under S. 28 of the Act even If the time had expired the Court has always the power to extend it if it thinks fit, whether the award has been made or not. This the Court can do suo motu and without any application from the arbitrators.
The fourth and the fifth contentions relate to the misconduct viz., that the arbitrators did not take part in the making of the award and the statements made by one party were not put to others and were accepted with giving such an opportunity. The question of any statements given by one party being gut to the other party is not relevant because no evidence or statement was in fact given by any of the parties, particularly by the petitioner, in the three suits which are the subject-matter of these appeals.
It would be observed that a notice was served on all the parties calling upon them to produce their documents and let in evidence by 6-10-1950. Pursuant to this, most of the parties signed a memo that they would give their statements, file their documents and produce evidence by 6-10-1950 before the arbitrators and if they do not do so the arbitrators may proceed ex parte in the matter. This memo, as the Subordinate Judge finds, is in the record.
It appears that some of the parties have filed their statements on 6-10-1950 and that in none of the statements have the claims of the plaintiffs in the three suits been disputed nor the parties tendered any evidence before the arbitrators. The only evidence let in by the parties related to O. S. No. 23 of 1948 which is not the subject-matter of these appeals. The arbitrators, it appears, looked into the accounts and the statements given by the parties including the petitioner in which they raised no objection regarding the claims of the plaintiffs.
In these circumstances on the material on record they found that the claims made by the plaintiffs are true and they gave their award accordingly. If the parties to whom notice to produce evidence was given do not choose to give evidence, it is not the fault of the arbitrators, nor can it be said that the proceedings were misconducted. The fact that they admitted the claims of the plaintiffs in the suits is also borne out by a statement filed on 10-12-1950 after the award by one Uppalapathi Venkataratnam, the working manager of the firm, accepting the various amounts due to various persons as per the credit entries in the account books of the firm.
As the learned Subordinate Judge quite rightly observed though this document was filed after the award, it is significant and the petitioner who signed it never at anytime contested the claim of the plaintiffs. With respect to the contention that all the arbitrators did not take part in the making of the award, it may be stated no such contention was urged with respect to the award relating to these three suits in the lower court.
The objection was only urged with respect to the award in O. S. No. 23 of 1948 where oral evidence and all the statements were recorded by the arbitrators and gave their award based on such evidence and the statements. There is no substance in these contentions.
In the result all the three appeals are dismissed with costs.
(The above appeals coming on Friday, 29-3-1957 for being mentioned, the Court made the following order:
The learned counsel for the appellant is not pressing the appeals in view of the fact that the decision in the connected appeals went against the appellant. The Civil Miscellaneous Appeals are dismissed with the costs of the first respondent in both.