Chhabila Singh and Others vs Sumitra Devi and Others

Satya Brata Sanyal, J.—This miscellaneous appeal arises out of an arbitration in a pending suit for partition and governed by Chap. IV of the Arbitration Act, 1940, hereinafter to be referred to as "the Act". The appeal is by the plaintiff challenging the decree drawn up in terms of the award. The sole question involved in this appeal is whether non-service of written notice u/s 14(2) of the Act vitiates the decree drawn up in terms of the award.

A suit for partition was instituted in the year 1963, The appellants are plaintiffs in the said partition suit. The suit with the consent of the parties was referred to the arbitrators on 24-2-1964 for decision and submission of the award fixing 6-3-64 as the date for the filing of the award. On 6-3-64 the Court extended the date of filing of the award with notice to the arbitrators fixing 6-4-64 for the filing of the award. On 6-4-64 the Court ordered the matter to be put up on 16-5-64. On 16-5-64 as the award was not submitted, a reminder notice was sent to the arbitrators fixing 17-6-64 for submission of the award. On 17-6-64 as the award was not submitted, a further notice was issued to the arbitrators asking them to file the award by 15-7-64. All these dates are continuous and were passed in the suit itself instituted by the plaintiff appellants. The award was prepared on 13-7-64 and the arbitrators took the signatures of the parties on the award on 14-7-64. The award was filed in the Court on the date fixed, namely, 15-7-64. On 15-7-64 itself the Court ordered that the matter be put up on 17-8-64 giving time to the parties to file objection, if any, to the award. On 17-8-64 the matter was put up but the Presiding Officer being away it was ordered to be put up on 18-8-64 on which date no objection having been received to the making of the award, the following order was passed :

"Award dt. 15-7-64 put up. No objection raised to the award and all the panics have signed the award.

Order

The award is accepted and confirmed. Let the suit be decreed in terms of the award."

Thereafter steps for preparation of the final decree was taken in the year 1965. Five years after the passing of the decree confirming the award, the appellants filed an objection on 3-10-69 alleging fraud, misconduct etc., for setting aside the award and complaining that the plaintiff appellants came to know about the making of the decree confirming the award pursuant to the steps taken for delivery of possession. By the impugned judgment it was held that objection having been invited sufficient time and no objection having been filed, the allegation now made cannot be entertained at this stage since the plaintiffs had enough opportunity to challenge the award under the Act which they did not avail.

2A. Mr. Singh, learned counsel appearing for the plaintiff appellants, contended that the judgment of the Court below dt. 6-4-1970 is vitiated by error of law apparent on the face of the award inasmuch as a decree confirming the award is binding and valid only when it is made subsequent to the issuance of notice u/s 14(2) of the Act. Admittedly, as the ordersheet manifests, learned counsel contended that no written notice whatsoever had been issued to the parties of the filing of the award. Section 14(2) of the Act reads 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 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."

According to learned counsel, compliance of Section 14(2) is mandatory and it is the statutory right of a party to be personally served with a notice of the filing of the award. Knowledge of the filing of the award acquired otherwise than in the way prescribed by the section cannot be considered to be proper service of the notice of the filing of the award. Even service of notice on the Advocate cannot be regarded as a valid service under this section. Learned counsel in support of his submission relied on the cases of Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., , Holaram Verhomal v. Governor-General AIR 1947 Sind 145 and Deep Narain Singh v. Ml. Dhaneshwari 1959 BLJR 723 : AIR I960 Pat 201 at p. 204).

Mr. Sudhir Chandra Ghose, appearing for the respondents, on the other hand, submitted that even though it is true that Section 14(2) of the Act is mandatory, knowledge of the filing of the award would be sufficient compliance of Section 14(2). According to learned counsel, written notice is not necessary and the same can be conveyed even orally to the parties. In support of his submission he relied on the cases of Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, , Chhotelal Vs. Jamnadas, , Bhola Nath Mallick Vs. Mahadev Mallick, and Bollaram George Vs. Kadpak Lingiah, ,

As stated earlier, the arbitration proceeding was taken in a pending suit. From the ordersheet of the suit itself it is apparent that the Court had given time and adjourned the suit from time to time for the making and filing of the award. It is true that by virtue of the provision of Section 25 of the Act the provisions of the other Chapters shall, so far as they can be made applicable, apply to arbitration in a pending suit as well. Section 14, which forms part of Chap. II, therefore, will certainly apply. But the object of giving notice, as is necessary in a private arbitration, loses much of its significance where the suit is adjourned from time to time notifying to the parties of the date of the making and the filing of the award in Court. It is expected that a party either himself or through his lawyer must be attending Court on the adjourned date to which the case is fixed. Knowledge of an order passed on the adjourned date shall have to be imputed to the party. It is manifest from the ordersheet, therefore, that the plaintiff appellants and/or their lawyer, was aware of the orders passed by the Court where the suit was pending as also of the date of the filing of the award on 15-7-64 when the Court granted time to the parties to the suit to file their objection adjourning the matter to 17-8-64. No objection having been filed the decree in terms of the award was passed on 18-8-64.

If it is the requirement of law that a written notice shall have to be served on the parties in view of the provisions of the Limitation Act and mere knowledge of the filing of the award is irrelevant, this appeal must be allowed. In Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., it was held by Bachawat, J. that notice u/s 14 must be given by the Court and notice received by a party aliunde and not through Court is not sufficient. The notice must be issued in the mode and manner required under the CPC since by Section 43 of the Act the provisions of the Civil P.C. have been made applicable. It may also be stated here that under the Rules framed by the Calcutta High Court the manner of service of notice has been envisaged. It was further held that where there is no service in the manner prescribed by law, the limitation for applying to set aside the award never starts to run and the decree passed should be set aside where it was so rendered without duly giving the notice of the filing of the award. This case supports the contention of Mr. Singh. In the case of Deep Narain Singh and Others Vs. Mt. Dhaneshwari and Others, a Division Bench of this Court observed that Article 158 of the Limitation Act for filing objection will not come into operation unless a notice has been served about the filing of the award. If before the service of the notice, the Court observed, the objection is filed, the question of limitation loses all significance and the objection of the defendant cannot be said to be barred by time. Mr. Singh, therefore, contends that since notice was never served upon the plaintiffs, the objection filed by the plaintiffs before the learned Subordinate Judge against the award could not have been rejected on the ground of delay. In Holaram Verhomal''s case AIR 1947 Sind 145 (supra) it was held that knowledge of the filing of the award acquired in a way other than that laid down by'' Section 14 cannot be deemed to be proper service of a notice of the award and the statutory provisions relating to service of a notice of the filing of the award upon a party cannot be dispensed with because it has been established that a party had notice of the filing of the award in some way or another, although not in accordance with Section 14. I must confess that these cases fully support the contention raised by Mr. Singh. But much water has fallen into the river Ganges since the rendering of the decisions relied upon by learned counsel for the appellants and they will all be deemed to have been overruled by an authoritative decision of the Supreme Court in Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti and Others, . In this case the Supreme Court held that "the date of service of the notice of the filing of the award" cannot mean to be a notice in writing served in a formal manner and the word "notice" will mean not only a formal intimation but also an informal one and would further include constructive or informal notice and it can also be given orally. Somewhat the same view was taken in Chhotelal Vs. Jamnadas, without referring to the aforesaid decision of the Supreme Court. In the said case the Hon''ble Judges dissented from the view taken by the Sind Court and preferred to follow the view expressed by the Nagpur High Court and the Allahabad High Court in the cases Kawalsingh v. Baldeosingh AIR 1957 Nag 57 and Ram Bharosey Vs. Pearey Lal and Another, . The judgment inGaneshmal Bhawarlal''s case (supra) was impliedly overruled in Bhola Nath Mallick Vs. Mahadev Mallick, , where it was held that a party who is already cognizant of the filing of the award, service of notice of the filing of the award becomes unnecessary. In the case of the The State of West Bengal Vs. L.M. Das, a Division Bench took the view that oral intimation about the filing of the award is sufficient and the time for limitation would run from such intimation for there is no distinction between a formal and an informal notice. The argument that there are certain rules framed for service of notice and, therefore, if the notice is not served in accordance with the said rules it will vitiate the award, was turned down by their Lordships. It was held that the same principle would apply both in an arbitration in the suit and in an arbitration without the intervention of the Court. In view of the aforesaid decision of the Supreme Court the views expressed by different High Courts from time to time have no force and will be deemed to have been impliely overruled. If it is sought to be interpreted that the observation in Deep Narain Singh and Others Vs. Mt. Dhaneshwari and Others, means that there should be a written notice in the prescribed form to be serve then only Article 158 of the Limitation Act will come into operation and knowledge of the filing of the award is wholly inconsequential, I am afraid it is in the teeth of the decision of the Supreme Court judgment, therefore not binding and hence to be ignored.

In the instant case not only the plaintiffs were aware of the adjourned date when the award was required to be filed in Court but also they had signed the award after it was made by the arbitrators which was a day before the filing of it in Court, a date fixed earlier by the Court. From the ordersheet it appears that the Court granted time to the parties to the suit to file their objection. It would be deemed that the parties appeared before the Court on the adjourned date and/or had knowledge of the adjourned date when the award was filed and further knowledge of grant of time for filing objection to the award. It was only on parties'' failure to file any objection the decree was rendered in terms of the award as required u/s 17 of the Act.

In the result, there is no merit in the appeal which is accordingly dismissed. In the circumstances, there will be no order as to costs.