LUCKNOW DECEAN TRUST ASSOCIATION Vs. RAMESH CHAND JAIN

JUDGEMENT

(1.) This first appeal from order has been preferred against the order dated 13th May, 1965, passed by the 1st Additional Civil Judge, Agra in suit No. 312 of 1971 making an award dated 12th April, 1985, rule of the court. The sole Plaintiff -Respondent has put in appearance and a caveat has been filed by the counsel. A counter affidavit has also been filed on behalf of the Plaintiff -Respondent. Two points have been urged before us by counsel for the Appellant. Firstly, it has been submitted that no notice of the filing of the award as contemplated by Sec. 14 of the Arbitration Act was served on the Appellant and secondly, that even if service of notice of the filing of the award on the counsel for the Appellant is held to be sufficient, the order dated 13th May, 1985 making the award rule of the court is liable to be set aside inasmuch as it was passed before the expiry of 30 days from the date of service of the notice of filing of the award on counsel for the Appellant.

(2.) Counsel for the parties has made a joint request that the first appeal from order may be finally decided at this very stage. We have accordingly heard counsel for the parties on the merits of the appear'. In order to deal with the two submissions made by counsel for the Appellants it is necessary to give certain facts in brief. Even according to the Plaintiff -Respondent the notice of the filing of the award was sieved not on the Respondent personally but on his counsel Sri A.N. Agarwal on 16th April, 1985. A certified copy of the order -sheet dated 18th. April, 1985 has been produced before us which indicates that on being informed to the filing of the award Sri A. N. garwal stated that after the Arbitrators had given their award no pairokar of the Defendant -Appellant had come to him. However, the service of notice on Sri A.N. A goral was treated to be sufficient service by the trial court and since no one appeared for the Appellant nor was any objection filed on its behalf the order appealed against dated 13th May, 1985 was passed.

(3.) On these facts it was urged by counsel for the Appellant that in view of the statement given by Sri A.N. Agarwal it was apparent that he had no instructions to a kept any noble on behalf of the Appellant and the trial court committed an error in holding service of notice of the filing of the award on the Appellant as sufficient. For the Respondent, on the other hand, it has been urged by his counsel that in vie of the provisions contained in this behalf in Order 3 Rule 5 Code of Civil Procedure, service of notice on Shri A. N. Agarwal who was counsel for the Appellant was sufficient service and the mere fact that since after the making of the award the Appellant or his pairokar did not meet Sri A. N. Agarwal, was not sufficient to hold that service of the notice was improper. According to counsel for the Respondent after the service of notice upon him it was the duty of Sri A. N. Agarwal to contact the appellant and to file an objection within the period prescribed in this behalf. Counsel for the Appellant also urged that Sri A.N. Agarwal had been engaged as its counsel by the Appellant only for conducting the proceedings before the Arbitrator and he was not entitled to act for the Appellant in the trial court. For this purpose he wanted some time being granted to produce a certified copy of the VakaJatnama. Since in our opinion the order appealed against deserves to be set aside on the basis of the second submission made by counsel for the Appellant, we have not considered it expedient to grant the time prayed for by counsel for the Appellant to produce a certified copy of the VakaJatnama. The limitation for making an application for setting aside an award or getting an award remitted for reconsideration as prescribed under Article 119 of tie Limitation Act 1963 is 30 days from the date of service of the notice of the filing of the a hard. In the instant case even according to the Plaintiff -Respondent the notice of the filing of the award was served on Sri A.N. Agarwal on 15th April, 1985. Calculated from this date 30 days had obviously not expired on 13th May, 1985 when the order appealed against making the award rule of the court was passed. It is for this reason that we are of opinion that it is not necessary to go into the question as to whether service of notice on Sri A.N. Agarwal was valid or not. As seen above, even if service of notice was valid the order appealed against having been passed within 30 days of the date of service of notice namely, 15th April, 1985, cannot be sustained.