Paltan Singh Gulabrai vs M.P. State Industrial Corp. Ltd.

P.C. Pathak, J.—This is a revision by Plaintiff against judgment and decree dated Feb.25, 1985 passed by the District Judge, in civil suit No. 97-A/82.

The applicant filed civil suit No. 6-A/78 u/s 8 read with Section 20 of the Indian Arbitration Act, 1940 (hereinafter the Act) for removal of the sole arbitrator and appointment of a competent person as an arbitrator to decide certain dispute between the parties. The ld. District Judge by his order dated July 15, 1980 dismissed the suit with the observation that the arbitrator who was already seized of the dispute should expeditiously deal with it and pass the award. The arbitrator gave his award on Sept. 29, 1982 and sent a copy of the same on Oct. 1, 1982 to the applicant who received it on Oct.4, 1982.

On Oct.20, 1982, the applicant filed an application u/s 14(1) of the Act seeking a direction to the arbitrator to file the award with the records. This was registered as civil suit No. 97-A/82 and a notice was issued to the arbitrator.

On Oct.3, 1982 the applicant filed an independent application u/s 30 of the Act challenging the award dated Sept.29, 1982. This was registered as civil suit No. 20 A/82 of the Court of II Additional Judge, Drug.

In civil suit No. 97-A/82, the arbitrator filed the award on Mar. 24, 1983. The Court gave notice of filing of the award to both the parties including applicant. The counsel for applicant requested for a date to go through the award and the documents. The case was therefore adjourned Order sheet dated Aug.2, 1983 mentions that no objection application u/s 30/33 of the Act has been filed. The counsel for the applicant informed the Court that an application to that effect is pending in the Court of II Additional Judge. The applicant was therefore directed to file the copies of application and order sheet on the next date. The order was complied with by the applicant on Aug.18, 1983. On Sept.30, 1983, the applicant filed another application for consolidation of civil suit No. 20-A/82 with the present suit No. 97-A/82. The ld. District Judge rejected the application on the same day.

On Oct. 12, 1983, the applicant applied to the Court of II additional Judge in CS No. 20- A/82 for returned of the application, which was allowed by that Court on the same date. The said Court made an endorsement to the effect:

The application filed on Nov. 3, 1982 and is being returned on Oct. 12, 1983 for presentation to proper Court.

This was re-presented before the ld. District Judge on Oct. 1 J, 1983.

After hearing ld. Counsel for both parties, the District Judge rejected the objections against award as barred by limitation and passed the decree in terms of the award. Aggrieved by the said award, the applicant has filed this revision.

Learned Counsel for the non-applicant raised a preliminary objection that the impugned order is appealable u/s 39(vi) of the Act and as such no revision lay. In reply ld. Counsel for the applicant submitted that he is challenging the order where his objections against the award were rejected and not the decree framed in terms of the award which is a consequential order and the High Court in exercise of its revisional power can interfere with the impugned order.

The first question for the decision is whether the impugned order is revisable. On examining this order, I find it is a composite order which on the one hand dismissed the objections of the applicant to the award and on the other hand adopts the award and directs that the decree should be framed in terms of the judgment passed by it. Such an order is to be treated as an order refusing to set aside an award and appeal is maintainable against the order u/s 39(vi) of the Act, see Sheoramprasad Ram Narayanlal Bania Vs. Gopalprasad Parmeshwardayal Shukla and Others, ;. Raja Brijendra Singh Vs. Buti Saha and Others, and Jay Kumar Jain and Others Vs. Om Prakash and Another, .

Learned Counsel for the applicant in support of his submission relied on Chhaoni Lal Pragdas Vs. Commr. of Income Tax, . Ganesh Chandra Misra Vs. Artatrana Misra and Others, . These cases lay down that where an application challenging the validity of an award is rejected on an erroneous assumption or misconception of law, it exercise its jurisdiction not vested in it by law for entertaining an objection against the award and the High Court can set aside the order u/s 15 Code of Civil Procedure. Learned Counsel for the applicant also relied on Hiralal v. Keshripal 1959 MPLJ 33. This decision does not support the applicant at all inasmuch as it holds to the contrary. In view of D.B. cases of this Court, it is not possible to take a different view in the matter and I hold that revision is not maintainable.

Learned Counsel for the applicant next argued that a copy of the award was received by him on Oct.4, 1982 and he filed application u/s 30 challenging the validity of the said award which was registered as independent CS No. 20-A/82 of the Court of II Additional Judge. This application Was finally returned on Oct. 12, 1983. After receiving it from the Court of II Additional Judge the application re-presented it on Oct. 13, 1983 in CS No. 37-A/82 and submitted that the period from Nov.3, 1982 to Oct. 12, 1983 is liable to be excluded for computing the limitation for filing objections against the award. As seen above the award was filed on Mar. 24, 1983. The objection was filed on Oct. 13, 1983. Thus it is barred by nearly more than 6 months unless the time is spent in prosecution of the said application as CS No. 20-A/82 is executed u/s 14 of the Limitation Act.

Before Section 14 can be invoked, it has to be demonstrated that the earlier civil proceedings were prosecuted bonafied and with due diligence. On careful consideration, I find that the applicant failed to establish his bonafied. He had received a copy of the award and on that basis he could start proceedings u/s 14 of the Act. That was not availed of in CS No. 97-A/82 he went on taking adjournments to file the objections. Thus the entire conduct of the applicant shows lack of good faith. There is noting on record to explain why independent application u/s 30 of the Act was filed to set aside award, when he had already filed application u/s 14 of the Act, which was pending then. At any rate the applicant had not been diligent in prosecuting application u/s 30 in another court nor has it been shown that there was any bonafide mistake of the counsel to file it.

Learned Counsel for the non-applicants submitted that even if the objection against the award is taken to be within time with the aid of Section 14 of the limitation Act, the applicant does not get any benefit out of it. As seen above, the application u/s 30 was filed on Nov.3, 1982, whereas the award was filed in the Court on Mar. 24, 1983. Thus the objection was filed about 5 months before the filing of the award. In other words no objection was filed after the notice of filing of the award given to the parties. Section 17 of the Act contemplates filing of the objections against the award only after the award has been filed. (See Janardhanprasad v. Chandrashekhar and Ors. AIR 1951 Nag. 198) and Lachhmi Prasad Vs. Gobardhan Das and Others, .

In view of the foregoing discussions the revision fails and is dismissed with costs. Counsel''s fee according to schedule.