BENGAL JUTE MILLS Vs. JEWRAJ HEERALAL

JUDGEMENT

(1.) This is an application for setting aside an award. The award in question was made on 19th May 1942, and the application to set aside that award was made on 1 August 1942. A preliminary point has been taken on behalf of the respondents to the effect that the application is misconceived because the award has not been filed and is not before the Court. The question now before me was raised in the Bombay High Court in Ratanji Virpal V/s. Dhirajlal Manilal ( 42) 29 A.I.R. 1942 Bom. 101. The head-note of that case is as follows:

(2.) Under the Arbitration Act, 1940, till the award has been filed in Court, it is not competent to a party to an arbitration to file a petition to set aside the award. In cases where it is necessary to have the validity of an award ascertained and the award has not been filed in Court it is open to a party to the arbitration to proceed under Section 14(2), Arbitration Act, to have the award filed in Court." It is clear that under the Arbitration Act of 1940 the validity of an arbitration agreement or an award can only be challenged by means of an application. Under the previous Act it: was considered possible to challenge the validity of an award by means of a suit. Section 32 of the 1940 Act provides that no suit shall lie for the challenging of an arbitration agreement or an award.

(3.) There is no doubt that the award in the present application has not been filed and it is contended that the award cannot now be filed owing to the amended Arts. 158 and 178, Limitation Act. Art. 178 provides a period of 90 days from the date of service of notice of the making of the award within which an application may be made for the filing in Court of the award. Art. 158 provides that an application to set aside an award must be made within 30 days of the date of service of the notice of the filing of the award. The award has been made, and the notice of the making of the award was served on or about 19 May 1942. 90 days have elapsed since the date of service of the notice, and it is argued that under Art. 178 no application can now be made for the filing of the award. It follows that no application can now be made to set aside the award. It is pointed out, however, that the arbitrators have the power to file the award by forwarding it under a sealed cover to the Registrar with a letter of request that the award be filed. This is provided under Rule 13 of the Rules of the Original Side of this Court made under Section 44, Arbitration Act. Learned counsel on behalf of the petitioner argues that the Court has power under Section 31, Arbitration Act, to set aside the award. Section 31(2) provides, so far as is material, that all questions regarding the validity, effect or existence of an award shall be decided by the Court in which the award has been or may be filed and by no other Court. Stress is laid on the words "may be filed" and it is argued that the arbitrators still have the power to file the award without making any substantive application. In my opinion Section 31 is not an enabling section, but a section which merely defines the jurisdiction. The marginal note refers to jurisdiction and the entire Section 31, including Sub-section (2) defines the particular Court or Courts which may deal with questions regarding the validity, effect or existence of an award, that is to say, this Court is given jurisdiction to deal with those questions because this Court is a Court in which the award may be filed.