JOHURIMULL JUGALKISHORE Vs. KASHIPROSAD JHAJHARIA

JUDGEMENT

(1.) This application raises an interesting and a not unimportant point o(limitation. The petitioner was a party to arbitration proceedings before the Tribunal of Arbitration of the Bengal Chamber of Commerce. On 29 July 1941 an award was made, under which the petitioner was ordered to pay to the respondents a sum of Rs. 2531 together with a sum of Rs. 313 as costs of the arbitration. On 22nd August, the award was filed in this Court. The petitioner at one time alleged that the notice of the filing of the award was never effectively served upon him, but he now concedes that this application must proceed on the basis that he was effectively served with the notice on 21 November 1941, On 22 December, 1941, the respondents made an application under Section 17, Arbitration Act, 1940, for judgment upon the award. The matter was in the list, and, when it was called, no one appeared on behalf of the petitioner to oppose. Accordingly judgment was pronounced in terms of Section 17.

(2.) Later in the day learned Counsel for the present petitioner presented a petition asking that the award should be set aside on various grounds. Learned Counsel stated that that day, that is to say 22 December, 1941, was the last day on which he could make the application. I directed that it should be noted as made on that date. There is an endorsement on the back of the petition which is as follows: "Noted as made today. Notice returnable on 12 January 1942." I will assume that the petitioner was not aware that judgment had been pronounced in terms of the award before the petition to set aside the award was presented. He has now applied for an order that the decree and judgment passed on 22 December, 1941 be recalled or set aside. His notice of motion is dated 19 January 1942, and made returnable on 16th February 1942. The petitioner admits that, unless he succeeds in setting aside the judgment and the decree made on 22 December, 1941, he cannot proceed with his application which is still pending, to have the award of 29 July 1941 set aside.

(3.) The only ground on which he asks that the judgment should be set aside is that it was made without jurisdiction. Under Section 17 of the Act, it is a condition precedent to pronouncing judgment that the time for making an application to set aside the award has expired, or alternatively that, such application having been made, the Court has refused it. The question is whether on 22 December, 1941 the time for making an application to set aside the award had expired. The period for making such an application is prescribed by Article 158, Limitation Act, as amended by Schedule 4, Arbitration Act, 1940. The article now prescribes 30 days from the date of service of the notice of filing the award. It is now conceded that the notice of filing the award was served on 21 November 1941. It is also conceded that the last day of the prescribed period would ordinarily be 21 December 1941. It would seem therefore that on 22 December, 1941, when the Court pronounced the judgment, the period had expired. However, counsel for the petitioner says that because of the provisions of Section 4, Limitation Act, the period had not expired, since 21 December 1941, being a Sunday, was a day on which the Court was closed. Section 4, Limitation Act, is as follows: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.