V K ITTOOP Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant, who is a Contractor, entered into a contract with the respondents regarding the work "construction of Civil Station at Thrikkakkara Al Block levelling site and forming roads-balance work under contract agreement No. 4/secc/74-75". Certain disputes arose between the appellant and the respondents, which were referred to the Chief Engineer (Arbitration), Trivandrum , for settlement. THE Arbitrator made and published his award on 14-5-1978. THE Arbitrator gave notice to the appellant and respondents and to their counsel about the passing of the award by Setter dated 14-5-1978. THEreupon the appellant's counsel sent a request to the Arbitrator dated 8-6-1978 to file the award before the Subordinate Judge's court at Ernakulam. He also produced non judicial stamp paper worth Rs. 76. 50 for engrossing the award. Copy of this request was also given to the counsel for the respondents. THE Arbitrator filed the award before the Sub Court , ernakulam along with his letter dated 27-6-1978 requesting the court "to notify the parties of the filing of the award and the connected documents". Copies of the letter of the Arbitrator to the court were sent to all the parties and their counsel. THE award was actually filed in court on 15-7-1978. THE court did not take any action on the award. THE appellant filed arbitration O. P. No. Ill of 1984 on 27-10-1954 under S. 17 of the Arbitration Act praying to pronounce judgment according to the award and to pass a decree thereon and for incidental reliefs. THE lower court dismissed the petition on the ground of limitation. In this appeal the appellant is challenging that order.

(2.) ACCORDING to learned counsel for the appellant, under s. 14 (2) of the Arbitration Act, the court was to give notice to the parties of the filing of the award and no application by any of the parties is contemplated under the statute. Under Rule 10 (1) of the Rules framed by the high Court of Kerala under the Arbitration Act the Arbitrator is to file the award in the manner prescribed by Rule 29 of the Kerala Civil Rules of practice. Under Rule 29, the filing has to be done by the party, his pleader or pleader's registered clerk to the Chief Ministerial Officer of the Court or any officer specially authorised in that behalf. We are informed that the award was filed by the Government Pleader on behalf of the Arbitrator. Under Rule 10 (3)when the Arbitrator files in court the award at the instance of any party, he shall give to such party notice of such filing and produce in court within a week of such filing evidence of service of such notice on the party concerned. As provided in sub-rule (4) the court shall then order notice of the filing of the award to the other parties effected by the award and such notice shall be taken cut by the party at whose instance the Arbitrator or Umpire has filed in court the award. Although the award was filed and copies of the letter of the arbitrator dated 7th June 1978 filing the award were given to all the parties, evidence of service of the notice was not filed in court as required under sub-rule (3 ). However, in the letter dated 27th June, 1978 itself it was mentioned that copies were given to all parties and that could be taken as service of notice, the letter being an official act regarding which there was a presumption that official acts have been regularly performed. However, the fact remains that the court did not actually order notice to any of the parties. The appellant also did not move any application or bring to the notice of the court the necessity of sending notice to parties. As per the rules the notice was to be issued in Form No. 6 requiring to appear and show cause why judgment in terms of the award should not be pronounced. Chapter II of the Civil Rules of practice relates to the payment of process fee and the manner in which summons or notice is to be served on the parties. Under Rule 61 of that Chapter any proceeding in which summons has to be issued by any court to any person, the party presenting the plaint, application etc. shall also file in court a process memo affixing necessary stamps for the issue of process together with sufficient number of copies of the plaint etc. Under Sub-rule 6 of Rule 61 when orders for the issue of process are passed by the court the date fixed for appearance will be inserted in the Form to be filed by the party ob whose behalf summons or notice is issued and the process will be dated and signed by the officer of the court duly authorised. Under Rules 82 and 85 a memorandum for issue of process has to be filed. No specific rule is brought to our notice requiring the court to order notice before the memo for issue of process is to be filed. In so far as the appellant did not file the process, we have to hold that the non-issue of the notice to the parties was solely due to the reason that process was not filed by the appellant.

(3.) IN Oil and Natural Gas Commission v. Forasol (1984 supple. S. C. C. 264) Madon, J. held as follows: "the provisions for enforcing an award under the english Act and under our Act are different. Under the English Act, if it is sought to enforce an award by making an application under S. 26 (1), such application has to be made under Order 73 Rule 3 of the Rules of the Supreme court, 1965, by an originating summons. There is no time-limit provided for taking out such summons. There is, however, a time limit provided for making an application to the court to remit an award under S. 22 or to set aside an award under S. 23 (2), under Order 73 Rule 5 (1) of the Rules of the Supreme court,1965,the period of limitation being 21 days after the award has been made and published to the parties. An application for leave to enforce the award under S. 26 (1) can, however, be made even before the expiry of the time for moving to set aside the award. IN such a case, however, it can be resisted upon the ground that a motion to set aside the award is to be made. It is opined in russel on Arbitration, Twentieth Edn. , Page 375. that in such a case, the party resisting the application would be required to show, upon affidavit, a substantial case for contesting the validity of the award, as well as to swear to his intention of doing so. Under S. 17 of our Act, an application for a judgment according to the award can only be made after the time for making an application to set aside the award has expired, or if such application has been made, only after it is refused. Under the English Act, the court is not bound to grant leave to enforce the award. IN doubtful cases, it would ordinarily leave the party to pursue bit remedy by filing an action on the award none of these contentions is available to a respondent where an application for a judgment according to the award is made under S. 17 of our Arbitration Act, 1940. They can only be raised by way of an application to set aside or recent the award after the award has been filed in court and notice thereof issued to the parties under S. 14 of the Arbitration Act, 1940. The period of limitation for such an application is prescribed by Article 119 (b) of the Limitation Act, 1963 (XXXVI of 1963 ). If the period of limitation expires without any such application being made, the court, on application being made to it for that purpose, must proceed to "pronounce judgment according to the award" whereupon a decree has to follow. S. 17 expressly provides that in such a case "the court shall proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow. " The only ground upon which such a decree can be challenged in appeal is that "it is in excess of or not otherwise in accordance with the award. " The court before which an application for judgment in terms of the award is raids, has, therefore, no discretion IN the matter except possibly in a case where the award is on the face of it patently illegal or violative of a provision of the law. "