DHANSUKHLAL C MEHTA Vs. NAVNITLAL CHUNILAL

JUDGEMENT

(1.) This application is made by the third party for extension of time for filing the award. This suit was tried by me for several days, and thereafter, by consent of the parties, the whole matter in dispute was referred to the arbitration of the two senior counsel who appeared in the case at the hearing. By the consent order made on June 22, 1932, the arbitrators were directed to make and file their award within four weeks from the date of service of that order on them, with liberty to enlarge the time for making the award by making endorsements to that effect at the foot of the copy. In the event of the arbitrators disagreeing or failing to make and file the award within the time prescribed or enlarged as aforesaid, the matter was to be referred to the umpirage of Sir J. B. Kanga, who was also to make his award within the time provided in the order. The arbitrators entered upon the reference, held meetings from time to time, and it is common ground that by making endorsements on the order served on them extended the time up to April 25, 1933. The arbitrators in fact had made their award before that day, but it was not filed because there were certain disputes about payment of the fees of the arbitrators. The affidavits show that the plaintiff has now paid the arbitrators their fees and the award is in a position to be filed.

(2.) On behalf of defendants Nos. 1 to 5 three objections are raised against the present application: (1) that the time to file the award having expired the Court has no jurisdiction to extend the time ; (2) that by the terms of the order, on the expiry of the time, i.e., April 25, 1933, the matter ipso facto stood referred to the umpirage of Sir J. B. Kanga and, therefore, there is no question of extending the time for filing the award of the arbitrators appointed under the order ; and (3) that the order of reference itself is invalid because under that order the Court has not fixed a definite time within which, even after the extensions, the arbitrators have to make the award.

(3.) In support of the first contention the defendants rely on the wording of para. 8 of the second schedule to the Civil Procedure Code and the decision in Raja Har Narain Singh V/s. Chaudhrain Bhagwant Kuar (1891) L.R. 18 I.A. 55. I do not think that contention of the defendants is sound. In the Code no time is prescribed for the filing of the award. Para. 10 of the second schedule. only directs that the arbitrators should file the award after it is made with the depositions and documents mentioned in that para. It is, however, contended that just as in the case of making the award the Court has no jurisdiction to extend the time, after the time prescribed in the order has expired, if the arbitrators have in fact made the award before the Court has extended the time, in the present case as the arbitrators have made the award the Court has no jurisdiction to extend the time for filing it. I am unable to accept this contention. In the first place para. 8 only provides for the extension of time for "making" the award. According to the Privy Council decision, the Court will not extend the time for "making" the award if it has expired and the arbitrators have made the award before the Court has granted the extension, Reading the words " making and filing " in place of " making" in para. 8, the conclusion would, therefore, be that the Court would not extend the time for making and filing the award after the time prescribed, if the arbitrators have "made and filed" the award before the extension is granted by the Court. The Privy Council decision does not, therefore, stand in the way of the jurisdiction of the Court to extend the time for filing the award in the present case, as the award is not filed in Court. Reading paras. 8 and 10 together, I think that the Court has ample jurisdiction to extend the time for merely filing the award which is nothing but a ministerial work to be done by the arbitrators. The form prescribed by the Code for an order of reference ( Form No. 2 in the appendix to schedule II) does not mention anything in respect of filing the award. The word file is inserted in the order by reason of the form prescribed under High Court Rule 881 (Form No. 80). In my opinion the filing of the award is merely a ministerial act, and para. 8 of schedule II has nothing to do with the jurisdiction of the Court to extend the time for filing the award. I, therefore, think that the first contention of the defendants fails.