Central Warehousing Corporation vs B.M. Pal Chowdhury

Pratibha Bonnerjea, J.—This application is for setting aside the award dated 28-8-82. By a contract in writing dt. 6-12-78, the respondent agreed to construct a 25000 M.T. capacity godown for the petitioner. This contract contained an arbitration clause. During the execution of the work the government, by notification dt. 28-12-79 increased the rates of building materials. Thereafter disputes and differences arose between the parties concerning the rates and other matters as well. The disputes between the parties were referred to arbitration and the arbitrator made his award dt. 28-8-82 in favour of the respondent. The arbitrator duly intimated the parties about the making and signing the award Thereafter by a letter dt. 21-5-83, addressed to the Registrar, Original Side of this High Court, the arbitrator wrote as follows : --

"In pursuance of the request of the Central Warehousing Corporation, New Delhi vide letter No.CWC/11-432/Const. dt. 16-11-82 I file the award published by me in original along with the documents for necessary action according to law".

Copies of the said letter were duly sent to the parties. In the petition, it is alleged that the petitioner received notice dt. 4-7-83 u/s 14(2) of the Arbitration Act. The present application was taken out on 1-8-83.

This application is contested by the respondent mainly on the ground of limitation. Relying on Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, , The State of West Bengal Vs. L.M. Das, and State of West Bengal Vs. Mondal and Co., , the respondent''s counsel submits that time will run from the date of informal notice of filing of the award D/- 21-5-83 and the application is clearly barred by limitation. The petitioner did not dispute the receipt of the letter D/- 21-5-83. But the contention of the petitioner''s counsel is that Section 14(2) notice recorded that the award was actually filed on 16-8-83. Therefore the contents of the earlier letter D/- 21-5-83 could not be correct and could not be treated as an informal notice of filing of the award. It was a false alarm only. He also points out that informal notices in Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, , The State of West Bengal Vs. L.M. Das, and State of West Bengal Vs. Mondal and Co., recorded actual filing of the award. Hence the letter D/-21-5-83 in the present case cannot be treated as an informal notice as the award was not filed until 16-8-83. In this case the time will run from the date of receipt of the notice u/s 14(2) of the Act. This submission is very interesting. In fact what was communicated to the petitioner by the arbitrator''s letter D/-21-5-83 was that the arbitrator had submitted or transmitted the original award to the Registrar, Original Side, for the purpose of filing the same. Can this message amount to a notice of filing of the award by the arbitrator? Section 14(2) of the Arbitration Act is as follows : --

"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 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."

Therefore, the duty of the arbitrator comes to an end when he takes step to cause the award to be filed. It has been repeatedly held by Courts that actual filing of the award is only a ministerial function. In Kumbha Mawji Vs. Union of India (UOI), it was held : --

"Under Section 14(2) the actual filing by the umpire is not essential. It is sufficient if the Umpire causes the award to be filed. Where in response to a notice issued to him by the Court, the Umpire forwarded to the Court the award by post, there is sufficient compliance with Section 14(2)."

Under the old law. mere receipt of the award by the Court was treated as filing of the award as will be clear from AIR 1931 Sind 160 (Volkart Brothers v. Achrajram Sahni, On the basis of the aforesaid authorities, the position seems to be very clear. If the arbitrator submits or sends the award to court for filing and the Court receives the award, the arbitrator causes the award to be filed in Court within the meaning of Section 14(2) of the Arbitration Act. The sending of the award by the arbitrator to Court for filing will tantamount to actual filing of the award. The actual filing being a ministerial function, can be done by any party or the Registrar himself at the instance of the parties. If this be the law, then the notice D/-21-5-83 must be regarded as an informal notice of filing of the award as held in Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, . The State of West Bengal Vs. L.M. Das, and State of West Bengal Vs. Mondal and Co., . Nobody will dispute the fact that the award was sent by the arbitrator to Court for filing along with the covering letter D/- 21-5-83 and the court duly received the same. On the facts and circumstances of this case, I have no hesitation to hold that in the present case, the time will run from the date of receipt of the notice D/-21-5-83 by the petitioner and therefore, the present application, which was taken out about 67 days from the date of the said notice, must be held to be clearly barred by limitation. The petitioner''s counsel also contends that the notice of filing of the award must comply with the rules framed by this, court under the Arbitration Act. He also invites my attention to Section 14(2) of the Arbitration Act "Court shall, thereupon give notice to the parties of the filing of the award" and submits that the notice should be given by Court and this provision is mandatory. According to him in view of our original side rules and the mandatory provision of Section 14(2) of the Arbitration Act there is no scope for giving any informal notice of filing of the award. But now it is too late in the day to agitate these questions. As a matter of fact, these points were raised before the Division Bench in The State of West Bengal Vs. L.M. Das, but it was held by the appeal Court : --

"The law laid down by the Supreme Court in that case, Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, is binding on this Court even if certain aspects of the matter were not considered by their Lordships of the Supreme Court vide Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, ."

In that view of the matter, the present application is bound to be dismissed on the ground of limitation. The respondent will be entitled to the cost of this application from the petitioner.