BALWANT SINGH Vs. PARTAP SINGH JAWALA SINGH

JUDGEMENT

(1.) THE applicants. Balwant Singh and Budh Wanti, in this revision application and the first three respondents to it, namely Partap Singh Darshan Singh and Sardul Singh entered into an agreement for arbitration of disputes between them by respondent 4, Mehtra Raja Ram Dutt, and one Kartar Singh who were thus appointed by the parties arbitrators to arbitrate on the disputes between them

(2.) THE arbitrators made their award on August 20, 1960 It has been found as a fact by the trial Court in its order of November 3 1965, that after notice the parties appeared before the arbitrators on August 20 1960, the award was made in their presence and they read the award also Obviously in the circumstances the parties knew of the award and had notice of it it appears that none of the five parties thereafter moved to have the award filed in Court and made a rule of the Court

(3.) IT has already been pointed out that no party to the award has made an application for filing the award in Court. No such party has made an application through the Court calling upon the arbitrators to file the award. No person claiming under any such party has done so either If the Delhi Court had jurisdiction in the matter it could be said that by its order of September 19, 1964, it had directed the filing of the award in Court, but that Court had no jurisdiction in the matter The award came to the Ludhiana Court -- the Court having jurisdiction in the matter -- on having been called by the Delhi Court, the Court not having jurisdiction in the matter and on that the applicants wanted the Court to make it a rule of the Court and respondents 1 to 3 wanted that the application of respondent 4 (one of the arbitrators) to file the award in Court to be dismissed as barred by time. Now the wording of Sub-section (2) of Section 14 of the Act 10 of 1940 as such, does not refer to this, that an arbitrator or an umpire can file an award himself though he can be compelled to do so, by the persons referred to in the sub-section through the Court. However, in Narayan Bhawu v. Dewaji-bhawu, AIR 1945 Nag 117 Puranik J. was of the opinion that there is nothing in Section 14 which precludes an arbitrator from filing the award in Court and he considered it not correct to say that only the parties to the arbitration should make an application in Court for filing an award or causing an award to be filed. No doubt Sub-section (2) of Section 14 does not, in the negative, say that an arbitrator or umpire cannot file an award The fact in this case is that as respondent 4, as an arbitrator, brought the award to the Ludhiana Court with his application, for filing it, it must be accepted as a fact that it was he as an arbitrator, who filed the award in Court But it has been pointed out in Amod Kumar Varma v. Hari Prasad Burman, AIR 1958 All 720 by a Division Bench of that Court, that an arbitrator need not make an application for permission or leave to file the award and he can just file the award in Court without making any application, It means that no application was necessary, in law, by respondent 4 as an arbitrator for filing the award in Court, and it would make no difference that he in fact did make one such application. As no such application was necessary by respondent 4, his application for filing the award must be treated as a mere surplusage, in which case the occasion for dismissing the application for filing the award as barred by time cannot possibly arise in this case. The reason is obvious, for there is no such application and there can be no application. It may be pointed out here that a Full Bench of the Madras High Court in Mahomed Yusuf v. Mohammed Hussain. AIR 1964 Mad 1 (FB) has been of the opinion that where an award made on a reference out of Court has not been filed into Court at the instance of any of the parties thereto within the time permitted by Article 178 of the Limitation Act 1908, it will he open to the Court to passed decree in terms thereof, if it is produced before the Court by the arbitrators themselves it would then be competent to the Court to investigate into the validity of such an award. In the present case the award has come before the Court not through any step taken by either the applicants or respondents 1 to 3 but by a step taken by one of the arbitrators respondent 4, in filing the award in Court, having had it produced by the other arbitrator through the agency of the Delhi Court. So the Ludhiana Court having the award before it just could not ignore it by saying that it found the application for filing the award by one of the arbitrator as barred by time for as stated, no such application was necessary, and an application not necessary cannot be barred by time. It is in these facts and circumstances and on this approach that this case has to be looked at and the conduct of the trial Court in refusing to adjudicate on the validity it otherwise of the award has to bf seen In that approach apparently the substantive effect of the order of the trial Court is no more but to set aside the award because it has refused to make it a rule of the Court, and immediately the order of the trial Court comes within the scope and ambit of Clause (vi) of Sub-section (1) of Section 39 of Act 10 of 1940, and thus the appeal to the District Judge was competent under that provision.