UNION OF INDIA Vs. SEWAK RAM AND CO

JUDGEMENT

(1.) THIS appeal is directed against a judgment and order passed by a learned Single Judge of this Court on the 15th of May 1979 whereby the Learned Judge dismissed the application under Section 33 read with Section 30 of the Arbitration Act, 1940 (thereafter referred to as the said Act) for setting aside an Award made by the sole Arbitrator by which a sum of Rs. 83,519 was awarded in favour of the respondent in respect of the claim No. 1 with interest at the rate of 6% per annum from the date of the award to the date of the decree unless paid within sixty days from the date of the Award. We need not go into the facts of the case in detail in view of the ultimate order we propose to pass. In March 1972 the respondent was appointed by the petitioner as a contractor for extension of a hospital at Ichapore for a lump sum amount of Rs. 13,45,575. The said contract contained an Arbitration clause. Certain claims were made by the respondents. Thereafter, the respondent called upon the authority concerned to appoint an Arbitrator in accordance with the Arbitration agreement contained in the parent agreement. The authority concerned declined to appoint an Arbitrator. Subsequently upon an application made by the respondent under Section 20 of the said Act, by an Order, dated 9th September, 1977, a learned Single Judge of this Court directed the said Arbitration agreement, dated 3rd of March 1972 to be filed in Court and the appropriate authority was directed to appoint an Arbitrator within the period specified therein. All the disputes between the parties which were subject matter of the said application were sent to the Arbitrator for his adjudication. The parties filed their respective statements and counter statements before the Arbitrator. On 30th of June 1978 the Award was signed and published by the Arbitrator. THIS was communicated by the Arbitrator to the parties by his letter of the same date wherein the signed copy of the Award in question was enclosed. THIS would appear from one of the annexures to the petition of the appellant herein. On 28th of July 1978 an application was made by the respondent under Section 14 of the Act for a direction upon the Arbitrator to file the award. On 25th September, 1978 the Award was filed in this Court. The admitted position is that the Union of India had the knowledge of the filing of the Award of that date in view of such application under Section 14(1) which was disposed of on 25th of September, 1978. The High Court was closed for long vacation from 30th September, 1978 to 5th November, 1978. On 6th November, 1978 the High Court reopened when, according to the appellant, they filed an application for certified copy of the Award. Pursuant to leave granted to the respondents, formal notice under Section 14(2) of the Act was served on the appellant through the Commander, Works Engineer on 28th November, 6th December, 1978. On 31st of January, 1979 this application for setting aside the Award was filed by the appellant. It is stated that by that time no certified copy of the award had been obtained but on 9th of January, 1979 the Officer of this Court notified the folio stamp for the copy and on the same day they were put in. It is stated that ultimately on 9th of February, 1979 the certified copy was obtained. Upon filing of affidavits, this application was heard by the learned Judge and as stated hereunder the application for setting aside the Award was dismissed. The Learned Judge upheld the preliminary objection of the respondent regarding the maintainability of the petition and held that the said application was barred by limitation. The Learned Judge in this context referred to the decision of the Supreme Court in the case of Nilkanta Sidremeppe Ningeshetti vs. Kashinath Ningeshetti and others reported in A.I.R. 1062 S.C. 666. Following the decision in the case of Bhagwan Swarup vs. Municipal Board Ujhani and others reported in A.I.R. 1970, Allahabad 652 the learned Judge held that if the applicant, does not annexe a certified copy of the Award to the petition for setting aside, it is not entitled to any exclusion of time on that account. Accordingly, the Learned Judge held that whether the time under Section 14(2) of the Act, in either view of the matter this application must be held to be barred by limitation. In view of the other arguments advanced, the learned Judge briefly referred to them. Other objections raised were based on the question of manifest error of law. It was a case of non-speak-d Judge held .that there was no error of law apparent on the face of the Award. There was no legal proposition which appeared on the face of the Award or some note or document appended to the Award on the basis of which the Award is made. It was also held that when a specific question of construction of a contract which is a question of law, is referred to the Arbitrator, even if. the Arbitrator commits an error in deciding the local proposition, the award cannot be assailed on the question of awarding interest the learned Judge held that the Arbitrator had full authority and jurisdiction to pass such award. Regarding the contention of the petitioners, that in view of the no claim certificate there was no dispute and no scope for any award, the learned Judge referred to a decision by the learned Judge in Union of India vs. D. Bose end Company (Award Case No. 124 of 1978) wherein following a Supreme Court decision, the learned Judge had held that the question whether a no claim certificate extinguished the claim was itself a dispute decided by the Arbitrator. It was lastly contended before the learned Judge that the Arbitrator acted without any evidence and therefore the award contained an error of law apparent on the face of it. The learned Judge rejected such contention. The learned Judge held that there was enough evidence before the Arbitrator to come to his finding on the claims.

(2.) BEING aggrieved by the same, this appeal has been preferred. In support of the appeal Mr. Chatterjee appearing on behalf of the Union of India has submitted very frankly that if the time to obtain certified copy of the award is not excluded in calculating the period of limitation in respect of the application, then admittedly the application was barred by limitation. However, he has drawn our attention to Section 12(4) of the Limitation Act and submitted that in the facts of this case such time should be excluded and in. that event the application for setting aside the award is not barred by limitation.

(3.) MR. Bose learned Advocate appearing on behalf of the respondent has submitted that it is clear that the application of the appellant herein was barred by limitation. He has drawn our attention to a letter sent on 20th June 1978 whereby the Arbitrator communicated to the parties about his signing and publishing the award and enclosed, along with the said letter, the signed copy of the award. This, in his opinion, was the knowledge of the award within the meaning of Section 14(2) of the Arbitration Act and admittedly on that basis the application was barred by limitation. He has next submitted that in any event when the award was filed in this Court on 25th September 1978 already such an application was barred by limitation. He has further submitted that in any event the award was filed in this Hon'ble Court on the 25th September and admitted1y the respondent had knowledge of the same because of the order passed in the application under Section 14(1) of the Act. We may point out that the fact of this knowledge was not disputed on behalf of the appillant before us. Calculating from the date also the application is barred by limitation. Even assuming for a moment that time did not start to run either from 30th June 1978 or 25th September 1978, time started to run in any event on 6th December, 1978 when the notice under Section 14(2) of the Act was served on the Union of India. With regard to exclusion of time for certified copy he has drawn our attention to the fact that Section 12(4) does not mention about certified copy; it only mentions about copies. He has also submitted that in any event, if a copy is received from the source or it emanates from the authority who has passed the award, then the purpose of Section 12(4) of the Act is satisfied and filing of an application under Section 12(4) of the act in Court long time thereafter, would not help the matter and Section 12(4) can not be read in that fashion. It was for the purpose of making an effective application or appeal that the time is excluded, but when it was not necessary to obtain such certified copy for the purpose of making such application, the time taken for obtaining certified copy is not to be excluded. He has relied on Nilkanta Sidramappa Ningashetti vs. Kashinath Somanna Ningashetti and Ors. A.I.R. 1962 S.C. 666; State of West Bengal vs. M/s. A. Mondal A.I.R. 1985 Cal. 12; Sree Sree Ma Engineering and Co. vs. State of West Bengal and Anr. A.I.R. (1986) Cal. 270.