JAYANTILAL JAMNADAS Vs. CHHAGANLAL NATHOOBHAI

JUDGEMENT

(1.) This is a petition filed by the petitioner praying that the award dated July 14, 1943, be taken off the file of this Court. It seems that a suit was filed in the Small Causes Court, Bombay, by the respondent against the petitioner and that suit was referred to the arbitration of Chhotalal Jekissondas Ghia, an advocate practising in that Court. The arbitrator made and published his award on July 14, 1943. On July 15, 1943, he gave notice to the advocates of the petitioner and the respondent who had been appearing before him during the reference that he had published and signed his award on July 14, 1943. He again gave a notice on March 3, 1944, to the parties themselves of the fact of his having made and published the award. The ground on which the petitioner seeks to have the award taken off the file is that it is out of time under Art. 178 of the Indian Limitation Act, 1908.

(2.) The first contention raised by Mr. M.V. Desai is that the notice given by the arbitrator on July 15, 1943, is not the statutory notice contemplated by Section 14(1) of the Indian Arbitration Act inasmuch as the notice should be served on the par-ties and not on their advocates. In view of my decision on the second contention urged by Mr. Desai, I do not think it necessary to express any opinion on this particular contention put forward by Mr. Desai.

(3.) The next contention of Mr. Desai is that Art. 178 of the Indian Limitation Act has no application whatsoever when the award is filed by an arbitrator under the Indian Arbitration Act. The Indian Limitation Act provides for limitation for applications made to the Court under the various articles which come under the third division to the first schedule to that Act. The preamble to the Indian Limitation Act states that it is a law relating to the limitation of suits, appeals and certain applications to Court; and Section 3 of the Act says that subject to the provisions contained in Secs.4 to 25, every suit instituted, appeal preferred, and application made, after the period of limitation prescribed there for by the first schedule shall be dismissed, although limitation has not been set up as a defence. Therefore under Article 178 it must be an application made to Court for the filing in Court of an award which can come under that article. If such an application is made ninety days after the date of service of the notice of the making of the award, the application is out of time and will be liable to be dismissed. The question that arises for determination is whether when an arbitrator files the award under Section 14(2) of the Indian Arbitration Act he is making an application to the Court as contemplated by Art. 178 of the Indian Limitation Act. Section 14(2) of the Indian Arbitration Act provides that the arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. Therefore an arbitrator under the Act has to file the award either at the request of any party to the arbitration agreement or on an order being passed by the Court to that effect. In this case the Court did not direct the arbitrator to file the award and, therefore, presumably he acted under the first part of Section 14(2). Rules have been framed by our High Court under the Act, and Rule 375 lays down the procedure that the arbitrator has got to follow when he files his award. That rule provides that he has to forward the award under a sealed cover with a letter requesting that the same be filed. Rule 373 of the High Court Rules lays down that all applications under the Act shall be made by petition except those under Secs.17, 20 and 34 of the Act which have got to be made in open Court on a notice of motion. Therefore, reading Rules 373 and 375 together, it is clear that an arbitrator does not make an application to the Court when he files an award but he does an act which the statute requires him to perform, and he intimates to the Court by his letter that he has made the award and that award should be taken on the file. All that the Court does through its Prothonotary and Senior Master, upon the arbitrator forwarding the award with a letter of request, is to endorse the award and to direct that it should be filed.