B SUBBARAMA NAIDU Vs. B SIDDAMA NAIDU

JUDGEMENT

(1.) In this appeal by special leave from the decision of the High Court of Madras the appellant challenges the validity of an award made by an arbitrator appointed by the Court in a suit for partition and recovery of possession filed by the appellant of his half share in certain properties upon three grounds. The first ground is that the reference to arbitration was itself invalid because the Court failed to comply with the mandatory requirements of S. 23, sub-s. (1), of the Arbitration Act, 1940 (10 of 1940), in the matter of specifying the time within which the award was to be made. The second ground is that the award was filed in Court by the arbitrator after the expiry of the time subsequently panted by the court for filing the award. The third ground is that the arbitrator erred in allotting to the appellant less than half the share in the properties in suit. In our opinion there is no substance in any of these grounds.

(2.) It is undoubtedly true that sub-s. (1) of S. 23 requires that an order thereunder referring a dispute to an arbitrator must specify the time within which the award is to be made. What is imperative is the fixation of the time for making the award. But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad. In Raja Har Narain Singh vs. Chaudhrain Bhagwant Kaur, 18 Ind App. 55 (PC) which was a case under the Code of Civil Procedure, 1882, the Privy Council had to consider the provisions of S. 508 which correspond to those of S. 23 (1) of the Arbitration Act. While pointing out that the provisions of S. 508 are mandatory and imperative they held that though the failure of the Court to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient." There also, as here, subsequent to the making of the reference the Court repeatedly made orders enlarging the time and in those orders fixed the time within which the award was to be made. Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948. The entry in the diary of that date reads thus:"Subject matter of suit is referred to Arbitration on joint petition. Call on. . . . . . . . 24-2-1948". The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948. In our opinion this entry should be read along with the order of reference. Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948. The mere omission to mention this date in the order of reference itself did not vitiate the reference.

(3.) As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948. A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948. The Diary contains the remark "call o" and this remark precedes the mention of the adjourned date. The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948 to March 25, 1948. The entry dated March 25, 1948, contains the following: