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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: SREE SREE MA ENGINEERING & ANR.

DATE OF JUDGMENT08/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2229            1988 SCR  (1)  69  1987 SCC  (4) 452        JT 1987 (3)   553  1987 SCALE  (2)507

ACT:      Arbitration Act, 1940:      Sections  14   to  16,  28  and  30-Unsigned  award  by Arbitrator-Whether can  be made  rule of  the  Court-Whether Court can  cure this  formal defect  by remitting  award for signature.

HEADNOTE:      There was  a dispute  between the  first respondent and the appellant  in respect  of Silt  Clearance of River Peali from Uttarbhag  Canning Road  Bridge up to Hobon Sluice. The matter was  referred to  the Arbitrator, who made his award. The respondent  was paid  a sum  of Rs.32,525.62 in terms of the award, and a true copy of the award was forwarded to the Court.      The  first   respondent  filed   an  application  under Sections 14,  15, 16   and  30 of the Arbitration Act, 1940, for setting  aside the  award. A  Single Judge  of the  High Court dismissed  the application  and passsed  a judgment in terms of  the award.  The Division  Bench having allowed the appeal of  the respondent,  the matter  again came up before the  Single  Judge,  who  allowed  the  application  of  the respondent under  Section 5,  11  and  12  of  the  Act  and appointed a retire Judge of the High Court as arbitrator and later revoked  the authority  of  the  said  arbitrator  and appointed a lawyer of the High Court as arbitrator.      The appellant filed an appeal against the said decision to the  Division Bench,  which held  that as  there  was  an extension of  time in  making the award and the award having been filed  within the  extended time,  the  award  was  not beyond time.  However, it  held that an unsigned award could not be made a rule of the Court.      Disposing of the appeal by special leave, this Court, ^      HELD: Under  law, the  mandatory rule is that the award should be  signed by  the Arbitrator.  No doubt  an unsigned award cannot  be made  a rule of the Court. But it is only a formal defect.  The Court, in such circumstances, can extend time for making the award and direct 70 curing of  the formal  defect in the award. So much time and

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effort should  not be allowed to go waste. Law must subserve justice and endeavour to serve the purpose of law. [71 F-G]      In the  instant case,  the award was handed over to the parties and  a letter  was sent to the parties concerned and award bore no signature of the Arbitrator. The parties acted upon the  award. In  a situation  of this nature, the proper order in  the interest  of justice  would be  to  remit  the award, under Section 16 of the Arbitration Act, for enabling the Arbitrator  named therein  for signing the award and for that purpose  if it  is necessary  under Section  28 of  the Arbitration Act,  the Court has the power to extend the time to the Arbitrator for making the award final.[71F. H; 72A-B]      Accordingly, the  time is  extended by  four months and the award remitted to the Arbitrator for signature. [72B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2190 of 1987.      From the  Judgment and Order dated 29th August, 1986 of the Calcutta High Court in Appeal No. 204 of 1986.      Amal Dutta, D.K. Sinha and J.R. Das for the Appellant.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. Special leave granted.      This is  an appeal challenging the decision of the High Court of  Calcutta upholding  the decision  of  the  learned Single  Judge  of  that  Court  whereby  the  award  of  the arbitrator was  set aside  and new arbitrator was appointed. In order to appreciate the position it is necessary to state that in  the year  1964 the  Executive Engineer  had invited competitive sealed  tenders in respect of "Silt Clearance of River Peali  from Utterbhag  Canning Road  Bridge upto Hobon Sluice". Shri  D.P. Chatterjee  entered upon  the  reference soon thereafter and the award was made in November, 1966. It appears that  thereafter the  respondent asked for the award amount in  full and  final settlement  which  the  Executive Engineer turned  down. The respondent herein was paid by the appellant a  sum of  Rs.32,525.62 in  terms of the award and which sum  was received  and acknowledged  by the respondent No. 1.  Then the true copy of the award was forwarded to the Court by  the Chief  Executive Engineer  and the application was 71 filed by  the respondent  No. 1 in 1981 in the High Court of Calcutta under  Sections 14,  15, 16 & 30 of the Arbitration Act, 1940  for  setting  aside  the  award  dated  the  19th November, 1966.  The High  Court after  hearing the  parties dismissed that application on 10th May, 1982. The High Court was thereafter  pleased to  pass judgment  in terms  of  the award. The respondent herein preferred an appeal against the judgment dated  10.5.82.  The  Division  Bench  allowed  the appeal of  the appellant.  The appellant’s  advocate did not notice that the matter appeared in the daily list dated 26th April, 1985  of the learned Single Judge for judgment and as such he  did not know the result of the judgment. Thereafter the matter  again appeared in the list of the learned Single Judge and  the respondent had made an application before the learned Single  Judge for  setting aside the previous order. The learned  Single Judge  on 18th  March, 1986 rejected the application of  the appellant and allowed the application of the respondent  herein under  Section S,  11 and  12 of  the Arbitration Act  and appointed  a retired  Judge of the High Court as the arbitrator and thereafter revoked the authority of the  said arbitrator  from acting  as the  arbitrator and

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appointed a  lawyer of the High Court as the arbitrator. The appellant preferred  an appeal  against the said order dated the 3rd December, 1985 before the Division Bench of the High Court of Calcutta.      Two points were raised before the learned Single Judge, firstly that  the award  was beyond  time and  secondly, the learned arbitrator  had not  signed the  award. The Division Bench found that as there was an extension of time in making the award  and  the  award  having  been  filed  within  the extended time, expressed the view that there was no force in the first  point. The Division Bench, however, was unable to accept unsigned award being made the rule of the Court.      It is  true that  an unsigned  award cannot be made the rule of  the Court.  But it  is only  a  formal  defect.  It appears that  the award was handed over to the parties and a letter was  sent to  the parties concerned and award bore no signature of  the arbitrator. The parties had acted upon the award. It  is true  that under the law the mandatory rule is that the  award should  be signed by the arbitrator. But law must subserve  justice and endeavour to serve the purpose of law. The  Court can  in such  circumstances extend  time for making the  award and  direct curing of the formal defect in the award.  So much time and effort should not be allowed to go waste.      In the situation of this nature the proper order in the interest of H 72 justice would  be to remit the award under Section 16 of the Arbitration Act,  1940 for  enabling  the  arbitrator  named therein for  signing the award and for that purpose if it is necessary under Section 28 of the Arbitration Act, 1940, the Court has the power to extend the time to the arbitrator for making the  award final.  We did  so. We  extend the time by four months  from today  and direct the award be remitted to the arbitrator for signature.      The appeal is disposed of accordingly. N.P.V.                                   Appeal disposed of. 73