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CASE NO.: Appeal (civil) 1238-1239  of  2001

PETITIONER: EAST INDIA HOTELS LTD.

       Vs.

RESPONDENT: AGRA DEVELOPMENT AUTHORITY

DATE OF JUDGMENT:       21/03/2001

BENCH: Syed Shah Mohammad Quadri & S.N. Phukan.

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..JJ U D G M E N T

PHUKAN, J.

   Leave is granted.

   In  these  appeals  by   special  leave,  appellant  has assailed  the judgement dated 1.10.1999 of the High Court of Allahabad  passed  in  Civil Revision No.106 of  1999.   The appellant  filed  an  application under Section  20  of  the Arbitration   Act,  1940  (for   short  the  Act)   before Additional  Civil  Judge,  Agra, which was allowed  and  the disputes  between the parties were referred to  arbitration. After  the proceedings were concluded, the Umpire filed  the award before the court on 13.11.1998, which was made rule of the  court by order dated 25.02.1999.  Being aggrieved,  the respondent  filed a revision petition before the High Court, which  was  allowed  by the order under  challenge,  on  the ground that no notice under sub-section (2) of Section 14 of the Act was served on the respondent.

   To  appreciate  the  contentions raised by  the  learned counsel  for  the parties, it is necessary to refer  to  the orders passed by the trial court on different dates:

   13.11.1998    Case  was called for.  The  Parties  are absent.  The Award was filed by the Umpire Shri Jethanandji. Shri  Prem  Narain Agarwal, learned counsel for  East  India Hotels  and  Shri Suresh Chandra Gupta, learned counsel  for Agra  Development  Authority  be   informed.   Umpire   Shri Jethanandji  shall place on record all the papers concerning the Award within fifteen days.

Case be put up on 14.12.1998 for further orders.

Sd/-  VIth Addl. Civil Judge (Sr. Division) Agra.

Noted for filing of the Award.

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Sd/-            13-11-1998 (Counsel for East India Hotel).

Sd/-            19-11-1998 For ADA (Parokar) Kirpa Shankar.

Sd/- Suresh Chander Gupta Sr. Standing Counsel, ADA 23-11-1998.

   On  28.11.1998  case  record was put up  and  the  court recorded  the fact of filing of papers concerning the  award by the Umpire, as directed by the court and further directed to  put  up the case on the next date fixed.  On  14.12.1998 the  presence  of the parties was noted but the court  could not  take up the case for want of time.  That order was duly noted  on behalf of the respondent.  On 4.01.1999 the  court recorded  filing of the application under Section 17 of  the Act  by the appellant and noted that a copy was supplied  to the  respondent who prayed for time to file reply.  The case was  put  up on 7.01.1999, presence of parties was  recorded and  the  next date was fixed on 14.01.1999 as on that  date the  case could not be taken up on account of strike by  the lawyers.   On 19.02.1999 parties were present in the  court, arguments  were heard and on 25.02.1999, the award was  made rule of the court.

   We  have now to determine as to what amounts to  service of notice under sub-section (2) of Section 14 of the Act.

   Dr.   Singhvi, learned senior counsel has contended that notice  under  sub-section (2) of Section 14 need not be  in writing  and what is essential is that notice or  intimation or  communication  of  filing of Award must  be  issued  and communicated  by the court to the parties.  According to the learned counsel notice to the counsel representing the party would  be  sufficient compliance in view of Rule 5 of  Order III C.P.C.  The learned senior counsel has further submitted that  as  the order passed by the trial court on  13.11.1998 was   noted  by  the  learned   standing  counsel  for   the respondent,  it was sufficient notice under sub-section  (2) of  Section  14  of  the Act.  In  the  alternative  it  was contended  by  the learned senior counsel that if  the  said order  dated 13.11.1998 is not accepted as notice under sub- section  (2)  of  Section 14 as along with  the  award,  the records  were  not  filed  by the Umpire,  the  order  dated 14.12.1998  would amount to notice, as the order was  passed by  the  trial court after records were filed by the  Umpire and it was duly noted on behalf of the respondent.

   Mr.   Dwivedi, learned senior counsel for the respondent drawing  our attention to the language of sub-section (2) of Section  14 of the Act, has contended that only after  award along  with depositions and connected documents are filed by the Arbitrator/Umpire, the stage of issuance of notice under said  sub-section  (2)  would  arise.   In  this  connection learned  counsel  has also placed reliance on Rule 8 of  the Arbitration  Rules  framed  by  the  Allahabad  High  Court. According  to  the learned senior counsel as  on  13.11.1998 records  from the Umpire were not received by the court, the said  order  though noticed by the learned counsel  for  the respondent would not be a notice to the parties.

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   We  extract  below sub-section (2) of Section 14  of  he Act:   14.   (2)  The arbitrators or umpire shall,  at  the request  of  any party of 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  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.

   From  a  perusal  of  the   above  provision,  shorn  of unnecessary   details,  it  is   clear  that  notice   under sub-section  (2)  of  Section 14 of the Act need not  be  in writing  and that it can also be oral.  What is essential is that  there  must  be  service of notice  or  intimation  or communication  of  the filing of the award to  the  parties, mode of service of such a notice being immaterial.  But such information,  communication  and  knowledge must  be  by  or pursuant to order of the court.  However, after filing of an award  by  the arbitrator or the Umpire in the court, if  it merely  records the presence of the parties or their counsel but  does not indicate that notice of filing of the award be given to the parties, no service of notice can be attributed from that fact, as notice must be referable to an act of the court.

   Now  we  shall refer to the cases cited by  the  learned counsel.    In   Nilkantha   Shidramappa   Ningashetti   vs. Kashinath Somanna Ningashetti and Others 1962 (5) SCC 400, a four  judge  bench  while  considering  sub-section  (2)  of Section 14 of the Act held as follows:

   Sub-section  (1)  of Section 14 of he  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 a notice given  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-section  (2) of Section  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

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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.

   In  Secretary to Govt.  of Karnataka and Another vs.  V. Harishbabu  1996  (5)  SCC 400 this court  had  occasion  to consider again sub-section (2) of Section 14 of the Act, the Bench  noticed the judgment passed in Nilkantha  Shidramappa Ningashetti  vs.   Kashinath Somanna Ningashetti and  Others (supra)  and  held  that  notice under  sub-section  (2)  of Section 14 of the Act need not be in writing and it might be oral and there should be no formal mode of service;  what is essential  is that notice or intimation or communication  of the  filing of the award must be issued by the court to  the parties  and  served upon the parties.  The dictum in  these cases support the view, we have expressed.

   On  13.11.1998  the  Trial Court recorded  the  fact  of filing  of the award by the Umpire and directed that learned counsel  for  the parties be informed.  This order was  duly noted  by the counsel for both the parties.  In our  opinion the  essential requirement of sub- section (2) of Section 14 was  duly complied with inasmuch as intimation of filing the award  to  the parties was communicated.  As notice  to  the counsel  is  notice  to  the party, the  above  order  dated 13.11.1998  together with the endorsement of the advocate on the  proceeding  sheet  would amount to a proper  and  valid service of notice under sub-section (2) of Section 14 of the Act.  We have already mentioned that as per the direction of the  court  Umpire also filed the record.   We,  accordingly hold  that  order  dated 13.11.1998 which was noted  by  the learned  counsel,  would  amount  to a  valid  notice  under sub-section  (2)  of  Section 14.  We, therefore,  need  not consider the alternative arguments of Dr.  Singhvi.

   We  may  now  consider the submission of  Mr.   Dwivedi, learned  senior counsel for the respondent.  Learned  senior counsel  has contended that the stage of issuance of  notice would  come  only  after  filing  of  the  records  by   the Arbitrator/Umpire   and   as  no   records  were  filed   on 13.11.1998, the order passed by the court on that date could not  be treated as notice to the parties.  We cannot  accept this contention.  From a plain reading of sub-section (2) of Section  14 it would appear that under this sub-section  the stage  at which notice is required to be given by the  court is  after  filing of the award and the notice pertains  to the  fact of filing of the award in Court.  It is the duty of  the  Arbitrator/Umpire to file  depositions,  documents, etc.   along  with  the award.  If only award is  filed  and other  documents  are not filed, the Court may issue  notice under  this  sub-section after the award is filed.  It  need not  postpone  issuing of notice till all the documents  are filed.   In  our  view a notice issued after filing  of  the award but before filing of other documents is a valid notice under  sub-section (2) of Section 14 of the Act and no fresh notice need be issued after filing of other documents by the Arbitrator/Umpire.

   In the case on hand by order dated 13.11.1998, court not only  directed issuance of the notice to the parties of  the filing of the award but also directed the Umpire to file the

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records  which  was duly compiled with by the Umpire  before the  next date of hearing.  After taking notice of filing of award  no controversy was raised by the respondent regarding not  filing  of the records till the award was made rule  of the court nor could it have raised such a controversy on the facts.   In  fact  after  filing of  the  application  under Section  14 of the Act by the appellant, time was prayed for to  file  a  reply on behalf of the respondent but  no  such reply  was filed.  In view of the above position, we are  of the opinion that the contention of Mr.  Dwivedi has no force and accordingly it is rejected.

   Mr.  Dwivedi has also pressed into service Rule 8 of the Arbitration  Rules  framed  by the High  Court.   This  rule prescribes the mode of filing of the award and the procedure to be followed by any party, if the records are not filed by the Arbitrator/Umpire.  This rule does not speak of issuance of  notice by the court under sub-section (2) of Section  14 and,  therefore,  would  not  be relevant  for  the  present purpose.

   Relying on Rule 6 of the Arbitration Rules, Mr.  Dwivedi has  contended  that  the  order  passed  by  the  court  on 04.01.1999  could not be construed as a notice.  This  point needs  no consideration as no submission was made on  behalf of the appellant that the order passed on that date would be a notice under sub- section (2) of Section 14 of the Act.

   For  what  has  been stated above we find merit  in  the present  appeals and accordingly they are allowed by setting aside  the  impugned judgment.  The order of the  Additional Civil  Judge, Agra dated 25.02.1999 making the award a  rule of  the  court  is  affirmed.   Considering  the  facts  and circumstances  of  the case, we direct the parties  to  bear their own cost.

T.N.  CIVIL SUPPLIES CORPN.  WORKERS UNION VS T.N.  CIVIL SUPPLIES CORPN.LTD.  & ORS.