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PETITIONER:

FOOD CORPORATION OF INDIA AND ORS.

Vs.

RESPONDENT:

E.KUTTAPPAN

DATE OF JUDGMENT21/06/1993

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

AHMADI, A.M. (J)

CITATION:

1993 AIR 2629 1993 SCR (3)1028

1993 SCC (3) 445 JT 1993 (4) 90

1993 SCALE (3)49

ACT:

%

Arbitration Act. 1940:

S.14-Award-Limitation for filing objection-Held, period of

limitation for filing objection begins from the date of

court's accepting placement of award before it so far as

party, placing award before court is concerned.

HEADNOTE:

The respondent filed two suits against the appellant-, under

s. 20 of the Arbitration Act, 1940 for appointment of an

arbitrator. The arbitrator was appointed who made awards.

On respondent's request the Arbitrator forwarded the awards

to former's counsel who in turn filed the same in Court on

25.10.1988 directed issuance of notice to counsel for the

parties for 7.11.1988. and accordingly intimated the

appellants. The court on 3.11.1988 directed issuance of

notice to counsel for the parties for 7.11.1988. The

respondent filed objections under s. 14 (2) of the Act on

5.12.1988 computing the period of limitation from 7.11.1988.

Appellants' plea of limitation against respondent's

objections was rejected by the trial court. The revisions

filed by the appellants were dismissed by the High Court.

The appellants filed the appeals by special leave.

The appellants contended that though under s. 14(2) of the

Act notice of filing of the award was required to he sent by

the Court, with the placing of the award before the court

and court's accepting its placement into it on 25.10.1988

the factual filing of the award had been made and sequally

notice to the respondent through his counsel, and the

subsequent order dated 3.11.1988 directing notice for

7.11.1988 was of no consequence.

Allowing the appeals, and setting aside the orders of the

High Court and the trial Court, this Court

HELD : 1.1. The period of limitation for the purposes of

filing the objection, in so far as the respondent was

concerned, had begun on October 25,1988 (i.e. the date of

placing the award before the court by respondent's counsel)

and, therefore, the objections filed by the respondent on

December

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6, 1988 were barred by time, those having been filed beyond

the prescribed period of thirty days.

1.2.The mute language inherent in the action of the court in

accepting' the placement of the award into it on 25.10.1988

did convey to the party placing the award before it, the

factum of the award being filed in court. The mere fact

that at a subsequent state, the court issued notice to the

parties informing them of the filing of the award in court

for the purpose of anyone to object to the award being made

the rule of the court is an act of the court which cannot in

law prejudice the rights of the parties

Indian Rayon Corporation Lid. v. Raunag and Company Pvt.

Ltd. [1988] 4 SCC 31 & Nilkantha Shidramappa Ningashetti

v.Kashinath Somanna Ningashetti and others. [1962] 2 SCR

551, relied on.

Hansanalli Abdallai Malabari v. Shantilal Bhaidas Marfatia

and other AIR [1962] Gujarat 317 & The State of Bihar and

others v. Liason and Contracts and, another, AIR 1983 Patna

101, referred to.

2.1.The obligation of filing the award in court is a legal

imperative on the Arbitrator. The agency of the party or

its lawyer employed by the, Arbitrator for the purpose

normally need be specific but can otherwise be deducted,

inferred or implied from the facts and circumstances of a

given case. It needs, however, shedding the impression that

when a lawyer files the, award in court when given to him by

the Arbitrator his implied authority to do so, shall not be

presumed to exist.

2.2.In the instant case, it was the respondent who by his

letter had requested the Arbitrator to send to his lawyer

the award for filing it into court and to whom the

Arbitrator obliged on such request. When the Arbitrator

chose to accede to the request of the respondent in specific

terms, he by necessary implication authorised the

respondent's counsel to file the award and the connected

papers in court on his behalf.

Kumb Mawji v. Union of India [1935] SCR 878, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 3139-40 of

1993.

From the Judgment and Order. dated 4.1.90 of the Kerala High

Court in

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C.R.P Nos. 1520 and 1527 of 1989.

B. Sen Vivek Gambhir, Surinder Karnail and S.K. Gambhir

for the Appellants.

M.P. Vinod and M.K.D. Namboodiri for the Respondent.

The Judgment of the Court was delivered by

PUNCHHI. J. Leave granted.

These two appeals are directed against the common judgment

and order sated January 4, 1990 passed by a learned Single

Judge of the Kerala High Court Ernakulam in Civil Revision

Petitions No. 1520 and 1527 or 1989.

The facts giving rise thereto are few and meaningful. The

respondent filed two suits against the appellants praying

under Section 20 of the Arbitration Act hereinafter referred

to as 'the Act') for an appointment of an Arbitrator to

resolve the disputes said to have arisen out of contracts

inter-se. One B.S. Hegde was appointed as an Arbitrator.

He made awards on October 3,1988. On that date itself, the

Arbitrator on his own had given notice to the parties under

Section 14(1) of the making and signing of the a wards. The

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respondent, on October 4, 1988, requested he Arbitrator by

means of a letter to forward the awards to his counsel for

filing ,he same in the Court. On October 12, 1988, the

Arbitrator forwarded the awards and the entire record to the

advocate of the respondent by a forwarding letter with copy

of the letter to the appellant. On October 25, 1988,

respondent's counsel filed the awards in the Court and

intimated to the appellant to that effect on October 26,

1988. Later the Court per its order dated November 3, 1988,

directed the issuance of notice to the counsel appearing for

the parties for November 7, 1988. The respondent filed

objections under Section 14(2) of the Act on December 5,

1988, computing the period of limitation of thirty days

under Article 119 of the Limitation Act 1963 from November

7, 1988, the date for which counsel for the parties were

summoned by the court to be told of the filing of the

awards. The appellants raised in defence the plea of

limitation against the respondent's objections and

conversely prayed for making the awards the rule of the

court. The trial court did not find favour with the

objections of the appellant and proceeded to hear the

objections of the respondent against the awards. The High

Court declining to interfere in the two revisions separately

filed by the appellants to press for the objection of

limitation has led the appellant Food Corporation of India

to come before us in these appeals.

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Sub-section (1) of Section 14 of the Act says that when the

Arbitrator or umpire have made the award, they shall sign it

and shall give notice in writing to, the parties of the

making and signing thereof and of the amount of fees and

charges payable in respect of the arbitration and award.

Sub-section (2) provides that the Arbitrator 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 a the award, cause the award

or a signed copy of it, together with any depositions and

documents which may have been taken any proved before them,

to be filed in Court, and the Court shall thereupon give

notice to the parties of the filing of the award. Article

119 of the limitation At, 1963 provides that an application

under the Arbitration Act, 1940, for setting aside the award

or getting an award remitted for reconsideration, the period

of limitation is 30 days computable from the date of service

of the notice of the filing of the award. Now what do the

words "give notice" mean in the context, has been subject of

judicial exponance as also to the effect of filing of award

in Court by a party (instead of the Arbitrator) with or

without the express or implied authority of the Arbitrator.

For the former, take the cases of [1962] 2 SCR 55-[1988] 4

SCC 3 1, and AIR (1962) (Gujarat) 317, and for the latter

take the cases of [1953] SCR 879 and AIR 1983 Patna 101.

In the case of Nilkantha Shidramappa Ningashetti v.

Kashinath Somarna Ningashetti and others [1962] 2 SCR 55 1,

the Arbitrator had filed the award in court on February 18,

1948 and three days later on February 21, 1948, the Civil

Judge adjourned the matter "for parties say to the

Arbitrator's report", to March 22, 1948. The point which

fell for consideration was that when no specific notice in

writing had been issued by the court under Section 14 of the

Act to the parties, where from shall the period of

limitation be reckoned for filing an objection against the

award. This Court observed on page 555 of the report as

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follows:-

"Sub-section (1) of Section 14 of the

Arbitration Act, 1940 (X of 1940)requires the

arbitrator or umpire to give notice in writing

to the parties of the making and signing of

the award. Sub-section (2) of that section

requires the Court, after the filing of the

award, to give notice to the parties of the

filing of the award. The difference in the

provisions of the two sub-sections with

respect to the giving of notice is significant

and indicates clearly that the notice which

the Court is to give to the parties of the

filing of the award need not be a notice in

writing. The notice can be given orally. No

question of the service of the notice in the

formal way of delivering the notice or

tendering it to the party can arise in the

case of a notice given

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orally. The communication of the information

that an award has been filed is sufficient

compliance with the requirements of sub-

section (2) of Section 14 with respect to the

giving of the notice to the parties concerned

about the filing of the award. Notice' does

not necessarily mean 'communication in

writing'. 'Notice', according to the Oxford

Concise Dictionary, means intimation,

intelligence, warning and has this meaning in

expressions like give notice, have notice' and

it also means 'formal intimation of something,

or instructions to do something and has such a

meaning in expressions like 'notice to quit,

till further notice'. We are of opinion that

the expression give notice' in sub-s. (2) of

s. 14, simply means giving intimation of the

filing of the award. which certainly was given

to the parties through their pleaders on

February 21, 1948. Notice to the pleader is

notice to the party, in view of r.5 of 0.111,

Civil Procedure Code, which provides that any

process served on the pleader of any party

shall be presumed to be duly communicated and

made known to the party whom the pleader

represents and, unless the Court otherwise

directs, shall be as effectual for all

purposes as if the same had been, given, to or

served on the party of person."

In the case of Indian Rayon Corporation Ltd. v. Raunag and

Company Pvt. Ltd.[1988] 4 SCC 31, this Court before applying

the ration of Nilkantha's case supra, analysed the facts to

state that the award therein had been filed in the High

Court on February 4, 1977. The respondent therein had

affirmed an affidavit on November, 29, 1977 stating that the

award had been filed in the court on February 4, 1977 and

made prayer on that basis that a notice be issued and served

on the appellant so that the judgment in terms of the award

could be passed. The court then went on to hold in view of

the facts that the notice was served on the appellant on

February 4, 1978 because on that date the appellant had

acknowledged by affidavit that the award had been filed in

the High Court of Calcutta but it had been filed in a wrong

court. According to the appellant, he had later got notice

of the filing of the award communicated to him by the court

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on which date he would have limitation reckoned. But this

Court held that limitation was to be computed from February

4, 1978 and on that basis objection to set aside the award

made in September 8, 1981 was held to be time barred.

Ration of Nilkantha's case was applied to reiterate that the

expression' give notice' in Section 14(2)simply meant giving

information of filing of the award and such intimation need

not be given in writing and could otherwise be communicated.

In Hansanalli Abdulalli Malabari v. Shantilal Bhaidas

Marfatia and other

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AIR 19621 (Gujarat) 317, a learned Single Judge of the

Gujarat High Court has taken the view that when written

notice is sent under Section 14 (2) of the Act, that would

be the starting point for the period of limitation. If

there is no written notice then the date on which oral or

informal or constructive intimation was given to the parties

by the Court of the fact that the award stood filed would be

the starting point for limitation' The Court took the view

that since there cannot be two starting points for the

period of limitation, one from the date of oral intimation

and the other from the date of service of notice, the

latter, if existing, would prevail over the former.

In Kumbha Mawji v. Union of India,[1953] SCR 878, this Court

had the occasion to examine the question whether a party

filing an award in court without the authority of the

Arbitrator or the Umpire, could be said to have "filed the

award on his behalf" in terms of Section 14 (2) of the Act.

This Court took the view that where the award or a signed

copy thereof is in fact filed into court by a party, he

should have before hand the authority of the Arbitrator or

umpire for doing sc. It was also ruled that it cannot be

assumed that the mere mending over of the awards to the

parties necessarily implied the authority of the Arbitrator

or of the Umpire to file the into Court on his behalf and

that such authority has to be specifically alleged and

proved. It was taken that the Arbitrator or the Umpire may

not in a given situation be aware that the award should be

filed in to court by himself only or under his authority.

In that case implied authority could not be proved.

A Division Bench of the Patna High Court in The State of

Bihar and others v. Liason and Contracts and another, AIR

[1983] (Patna) 101, overlooking the judgment in Kumbha

Mawji's case supra, took the view that where the pleader of

the defendants had filed the award in court and the court

had not issued separate notices of the filing of the award

under Section 14, then it could not be said by the

defendants that they had no knowledge of the filing of the

award merely because no separate notice had been issued to

them under Section 14. No notice was held, required to be

issued to any of the parties as the fact of filing of the

award must the deemed to be within their knowledge on the

basis that their own pleader had filed the award and, hence

the objections if any should have, been filed within the

prescribed period of thirty days.

Assimilating the legal thoughts afore-expressed and applies

to the facts afore-stated. it becomes manifest that when the

Arbitrator had sent the award and other papers to the

respondent through his counsel, unless he had authorised the

respondent or his counsel on his behalf to the filing of it

in court, it cannot be assumed that when the respondent or

his counsel filed the award and other

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connected papers in court it was not done for and on behalf

of the Arbitrator. ,Instantly it was the respondent who by

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his letter had requested the Arbitrator to send to his

lawyer the award for filing it into court and to whom the

Arbitrator obliged on such request. In our view, when the

Arbitrator chose to accede to the request of the respondent

in specific terms, he by necessary implication authorised

the respondent's counsel to file the award and the connected

papers in court on his behalf. The law enjoined on the

Arbitrator to file the award in Court for which purpose he

could even be directed by the court. The obligation of

filing the award in court is a legal imperative on the

Arbitrator. The agency of the party or its lawyer employed

by the arbitrator for the purpose normally need be specific

but can otherwise be deduced, inferred or implied from the

facts and circumstances of a given case. It needs, however,

shedding the impression that when a lawyer files the award

in court when given to him by the Arbitrator his implied

authority to do so, shall not be presumed to exist. It the

instant case, no one raised the plea that the filing of the

award in court by the respondent's lawyer was without the

authority of the Arbitrator and the courts below were not

engaged on that question. The matter was agitated on the

basis of knowledge of award from that fact.

On the strength of afore-mentioned two cases of this court,

i.e. Nilkantha's case and Indian Rayon's case, it was

claimed on behalf of the appellants that though the legal

requirement is that the notice be sent by the court, some

other act of the court is enough to foist awareness of the

filing of the award in court, where from the period of

limitation was to commence. Instantly, it was urged that

when the award had factually been placed before the court

and the court had accepted its placement into it on October.

25. 1988 itself, the factual filing of the award had been

made and sequally notice to the respondent through his

counsel. Even though the court had subsequently on November

3, 1988 issued notice for November 7, 1988, the former act,

according to the appellant, was enough compliance of court

sending the notice and the latter act was of no consequence.

It does not lie in the mouth of the respondent to say that

though he filed the award in court through his counsel, with

or without the implied or express authority of the

Arbitrator, he did not have the corresponding knowledge of

the filing of the award, when the award was readily received

by the court. It seems to us that the mute language

inherent in the action of the court did convey to the party

placing the award before it, the factum of the award being

filed in court. The mere fact that at a subsequent stage,

the court issued notice to the parties informing them of the

filing of the award in court for the purpose of anyone to

object to the award being made the rule of the court is an

act of the court which cannot in law prejudice the rights of

the parties. If once it is taken that the period of

limitation for the purposes of filing the objection, in so

far as the respondent was concerned, had begun on

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October 25, 1988, the objections filed by it on December 6,

1988 were obviously barred by time, those having been filed

beyond the prescribed period of thirty days. If this be the

logical conclusion, the appeals shall merit acceptance,

holding the objections. filed by the respondents to be time

barred. Thus, so concluding, we allow these appeals, set

aside the common judgment and order of the High Court, and

that of the trial court, holding the objections filed by the

respondents to be time barred. The trial court will proceed

further in these matters in accordance with law. The

parties to bear their own costs.

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R.P. Appeals allowed.