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PETITIONER: INDIAN RAYON CORPN. LTD.

       Vs.

RESPONDENT: RAUNAQ & COMPANY PVT. LTD.

DATE OF JUDGMENT04/08/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SHARMA, L.M. (J)

CITATION:  1988 AIR 2054            1988 SCR  Supl. (2) 231  1988 SCC  (4)  31        JT 1988 (3)   482  1988 SCALE  (2)739

ACT:     Arbitration  Act, 1940: ss. 14 &  30:  Award-Application for setting aside of-Time for-30 days from service of notice of filing of award by Court-Statutory requirement-Filing  of award in proper Court and intimation thereof by Court or its office-Notice need not be in writing-Can be communicated  in any form. %     Limitation  Act, 1963: Article  119(b)-Award-Application for setting aside of-Time for-30 days from service of notice of filing of award by Court or its office.

HEADNOTE:     Section  14(2) of the Arbitration Act, 1940 enjoins  the arbitrator  or the umpire to give notice to the  parties  of filing of the award. Under clause (b) of Article 119 of  the Limitation Act, 1963, the time for making an application for setting  aside  an award or getting an  award  remitted  for reconsideration  is thirty days from the date of service  of the notice of the filing of the award.     The award was filed in the court on 4th February,  1977. The respondent affirmed an affidavit on 29th November,  1977 to that effect and prayed that a notice be issued and served on  the appellant. Thereafter a Master’s Summons  was  taken out  by the respondent on 10th January, 1978 using the  said affidavit  as the ground for the prayers. On  4th  February, 1978 the appellant filed an affidavit stating that the award had  been wrongly filed in the High Court and it  should  be taken off the file. On 3rd May, 1978 an order was passed  as prayed  in  the affidavit and the Master’s Summons,  and  on July 30, 1981 a notice under s. 14(2) of the Act was  served on the appellant.     The appellant applied for certified copy of the award on 18th  August, 1981 and received the same on  lst  September, 1981.  It made an application under s. 30 of the Act on  8th September,  1981  for setting aside of the award.  The  High Court  held that the notice was served prior to  30th  July, 1981  and  as such the application was barred  by  lapse  of time.                                                   PG NO 232     Dismissing the appeal by special leave,

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   HELD:  In order to be effective both for the purpose  of the judgment in terms of an award and for setting aside  the award,  the award must be filed in the proper  court.  There must be service of notice or intimation or communication  of the filing of the said award by the court to the parties. If all  these factors are established or are present, the  mode of  service of the notice would be irrelevant. It  need  not necessarily  be  in writing. If the substance is  clear  the form  of  the notice is irrelevant but the notice  of  award having been filed in the court, is necessary. The filing  in the  court  is necessary and the intimation thereof  by  the Registry of the court to the parties concerned is essential. Beyond  this  there  is  no  statutory  requirement  of  any technical  nature  under s. 14(2) of  the  Arbitration  Act. [234D]     It  is upon the date of service of such notice that  the period  of limitation begins and as at present under  clause (b)  of Art. 119 of the Limitation Act, 1963 the  limitation expires  on the expiry of the thirty days of the service  of that  notice  for an application for setting  aside  of  the award. l236F]     In the instant case, on 4th February, 1978 an  affidavit had  been filed in the High Court, stating on behalf of  the appellant  that  the award had been wrongly  filed  in  that Court.  The appellant had, therefore, acknowledged  that  it had  notice  of the said filing communicated to  it  by  the Court. The notice can thus be attributed to have been served on the appellant either on 3rd or 4th February, I978,  prior to  30th  July,  1981.  If that is  the  position  then  the application  for  setting, aside of the  award  was  clearly barred by lapse of time. [234C, 236B-H, 237A]     Nilkantha  Shidramappa Ningashetti v. Kashinath  Somanna Ningashetti  &  Ors., [1962] 2 SCR 551 and  Dewan  Singh  v. Champat Singh & Ors., [1970] 2 SCR 903 referred to.

JUDGMENT:    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2746  of 1988.     From  the  Judgment  and Order dated  25.8.1987  of  the Calcutta High Court in Appeal from Original Order No. 158 of 1982.     D. Bhandari for the Appellant.     S.K. Dholakia and Vineet Kumar for the Respondent.                                                   PG NO 233     The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI,  J.  Special  leave  granted.  The appeal is disposed of by the order herein.     This  appeal is directed against the judgment and  order of  the Division Bench of the High Court of Calcutta,  dated 25th  August, 1987, dismissing the application  for  setting aside the award, on the ground that the said application was barred by lapse of time. The award in this case was filed in the  High  Court  on  4th  February,  1977.  The  respondent affirmed  an affidavit on 29th November, 1977  stating  that the award had been filed in the Court on 4th February,  1977 and  Prayed  that  a  notice be issued  and  served  on  the appellant  so that the judgment in terms of the award  could be passed.     On  10th  January, 1978  the  respondent’s  advocate-on- record  took out a Master’s Summons and used  the  aforesaid affidavit  as the ground for the prayers which were made  in the  summons. On lst February, 1978 M/s. Khaitan &  Company, solicitors, on behalf of the appellant, filed a  Vakalatnama

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and  a requisition in the department of the High  Court  for searching  the records in this case. On 2nd February,  1978, M/s. Khaitan & Co. searched the records of the High Court of Calcutta.  On  4th February, 1978, the  appellant  filed  an affidavit  stating that the award had been wrongly filed  in the  High Court of Calcutta and it should be taken  off  the file.     On  3rd May, 1978 an order was passed as prayed  in  the affidavit and the Master’s Summons, and on 30th July,  1981, a  notice under Section l4(2) of the Arbitration  Act,  1940 (hereinafter called ‘the Act’) was served on the  appellant. Section  14(2)  of  the Act enjoins the  arbitrator  or  the umpire to give notice to the parties of filing of the  award in order to facilitate the passing of the order thereon.     On  18th  August,  1981, the  appellant  applied  for  a certified copy of the award and the application for  setting aside  the award under Section 30 of the Act, was  filed  on 8th September, 1981. Under clause (b) of Article 119 of  the Limitation Act, 1963 the time for setting aside an award  or getting  an  award remitted for reconsideration is  30  days from the date of the service of the notice of the filing  of the  award.  Hence,  there must be filing of  the  award  in Court. A notice must be given to the party/parties concerned of  such filing of the award in the Court and on the  expiry of  30 days from the service of the said  notice  limitation for setting aside an award expires. ln this case, it appears                                                   PG NO 234 that the appellant applied for a certified copy of the award on  18th  August,  1981  and on  lst  September,  1981,  the appellant  received the certified copy from the  Court.  The application  under Section 30 of the Act, for setting  aside the  award  was made on 8th September, 1981. Hence,  if  the date of service of the notice of the filing of award be 30th July,  1981,  then  in  the events  that  have  happened  as narrated  above,  indisputably the  application  was  within time.  If,  however, the notice is attributed to  have  been served prior to that date then the application was barred by lapse  of time. The High Court held that the notice in  this case was served prior to 30th July, l981.     It  appears  as mentioned before that on  4th  February, 1978 an affidavit had been filed in the High Court,  stating on  behalf of the appellant that the award had been  wrongly filed   in  that  Court.  The  appellant   has,   therefore, acknowledged that the award had been filed and a notice  was issued  to it in respect of the said award. ln our  opinion, this  conclusion irresistibly follows from the narration  of events mentioned hereinbefore. ln order to be effective both for  the purpose of obtaining the judgment in terms  of  the award  and  for setting aside the award, the award  must  be filed  in  the  Court. There must be service  of  notice  or intimation or communication of the filing of the said  award by  the  Court  to the parties. If  all  these  factors  are established  or  are  present, the mode of  service  of  the notice  would be irrelevant. If the substance is clear,  the form of the notice is irrelevant but the notice of the award having been filed in the court, is necessary. The filing  in the  Court  is necessary and the intimation thereof  by  the Registry   of  the  Court  to  the  parties  concerned,   is essential. Beyond this there is no statutory requirement  of any technical nature under Section 14(2) of the Act.     This  conclusion, in our opinion,  irresistibly  follows from  the principles enunciated by this Court  in  Nilkantha Shidramappa Ningashetti v. Kashinath Sommanna Ningashetti  & Ors.,  [1962]  2  SCR 551 where this  Court  held  that  the communication by the Court to the parties concerned or their

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counsel, of the information that an award has been filed was sufficient  compliance with the requirements of  sub-section (2) of Section 14 of the Act. ln the aforesaid decision this Court  reiterated that the notice need not necessarily  mean "communication in writing". The expression "give notice"  in sub-section (2) of Section 14 of the Act simply means giving intimation of the filing of the award. Such intimation  need not be given in writing and could be communicated orally  or otherwise.  That would amount to service of the notice  when no particular mode was specified. Elaborating the  aforesaid                                                   PG NO 235 principles  this  Court  at  page 555  of  the  said  report observed as follows:     "Sub-section  (1) of s. 14 of the Arbitration Act,  1940 (X  of  1940)  requires the arbitrators 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  notice given  orally. The communication of the information that  an award  has  been  filed is sufficient  compliance  with  the requirements  of  sub-s.(2)  of s. 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 O. III,  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 in person."     The  aforesaid  question  was  again  examined  from   a slightly  different  angle later in Dewan Singh  v.  Champat Singh  &  Ors.,  [1970] 2 SCR 903  where  this  Court  while dealing  with Article 158 of the Limitation Act, 1908  which was  the  previous Article corresponding to  clause  (b)  of Article 119 of the Limitation Act, 1963, held that the said                                                   PG NO 236 Article  gave  30 days’ time for applying to set  aside  the award; from the date of service of the notice of the  filing of  the award. As mentioned hereinbefore, the notice of  the service  of  the award may be communicated in any  form.  It need not necessarily be in writing. If that is the  position in law then in view of the facts of this case the conclusion would  irresistibly be that the notice was served  at  least either  on 3rd or 4th February, 1978  because at  that  time the appellant had acknowledged that the award had been filed in  view of the affidavit filed by it in the High  Court  of

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Calcutta and that the award had been filed in a wrong Court, according  to the appellant, and that he had notice  of  the said filing communicated to him by the Court. That would  be natural  and ordinary inference to draw from the conduct  of the parties as narrated before. lf that is the position then the application, in our opinion, for setting aside the award was, indisputably, barred by limitation.     Counsel  for the appellant, however, drew our  attention to  the  statement recorded by the High Court where  it  was stated as follows:     "The  learned counsel for both parties have  agreed  the service of notice under section 14(2) of the Arbitration Act is  a  mandatory provision and an  application  for  setting aside  of the award shall not be time barred so long as  the aforesaid notice is not served."     It  was, however, submitted on behalf of  the  appellant that there cannot be any concession on a question of law. We are  of the opinion that this concession does not, as  such, help  the parties very much. The fact that the parties  have notice of the filing of the award, is not enough. The notice must  be served by the Court. We reiterate again that  there must  be  (a) filing of the award in the proper  court;  (b) service  of  the notice by the court or its officer  to  the parties concerned; and (c) such notice need not  necessarily be in writing. It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of Article 119 of the Act, the limitation expires on  the  expiry of the thirty days of the  service  of  that notice  for an application for setting aside of  the  award. The  importance of the matter, which need be emphasised,  is the service of the notice by the Court. It is not the method of  the service that is important or relevant. In this  case as both the Courts have, in fact, found that the notice  was issued and served and, in our opinion, that finding is based on  cogent  material and relevant evidence,  prior  to  30th July,  1981, the application  made in this case was  clearly barred by lapse of time.                                                   PG NO 237     We  find,  therefore, no ground to  interfere  with  the decision of the High Court. The appeal accordingly fails and is dismissed without any order as to costs.        P.S.S.                              Appeal dismissed.