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PETITIONER: PATEL MOTIBHAI NARANBHAI & ANR.

       Vs.

RESPONDENT: DINUBHAI MOTIBHAI PATEL & ORS

DATE OF JUDGMENT:       09/01/1996

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) AHMADI A.M. (CJ)

CITATION:  1996 AIR  997            1996 SCC  (2) 585  JT 1996 (1)   265        1996 SCALE  (1)294

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN, J.      Leave granted.      This case  arises out  of a  property  dispute  between Motibhai Naranbhai Patel and Chandrakant Motibhai Patel, the appellants  herein,   and   Pravinbhai   Ishwarbhai   Patel, Mahendrakumar Ishwarbhai  Patel and  Jayantikumar Ishwarbhai Patel, the respondents.      The  dispute,   by  mutual   consent  was  referred  to arbitration.  Dinubhai   Motibhai  Patel,  an  Advocate  was selected as  Arbitrator by  the  parties.  The  dispute  was referred to the Arbitrator on 21st May, 1985. The Arbitrator made his Award on 26th February, 1986 and gave intimation of the Award  to  all  the  Parties.  Thereafter  on  24.4.1986 Chandrakant Dave,  an Advocate  wrote to  the Arbitrator  on behalf of the appellants:-      "You have  recently given an award as an      Arbitrator between  my clients  and  the      heirs  of   his  deceased  brother  Shri      Ishwarbhai Naranbhai  Patel with  regard      to   the    properties    and    present      distribution  adhered  in  some  of  the      representation made  by our clients have      not considered  and thereby  my  clients      hereby raise  written objection  against      the award  being filed  and hence  as an      Arbitrator you  should not  initiate any      steps to file."      Because of  this letter  or for  some other reason, the Award was  not filed  in Court. Under the provisions of sub- section (2)  of Section  14 of the Arbitration Act, 1940, it was open to any of the parties to the arbitration to request the Arbitrator to file the Award in Court. The parties could also apply  to the Court for a direction upon the Arbitrator to file  the Award. Neither of these two steps were taken by

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the appellants  or the respondents. Under Article 119 of the Limitation Act, 1963, an application for filing the Award in Court could  be made within a period of thirty days from the date of  service of  notice of  the making  of the Award. An application for setting aside of an Award could be made also within a  period of  thirty days from the date of service of the notice  of the  filing of the Award. Since the Award was not filed  in Court,  the question  of applying  for setting aside of  the Award did not arise. But the right to apply to the Court for filing of the Award, expired after thirty days of the service of the notice of making of the Award. Neither of the  two parties  tried to enforce the Award. It has been contended on  behalf of the respondents that the parties had come to a settlement in the meantime. But the letter written on 24th  April, 1986  by  the  advocate  on  behalf  of  the appellants does  not indicate  that any  such settlement had been  arrived   at.  On   31st  January,   1992  Jayantibhai Ishwarbhai Patel  the fourth respondent herein, instituted a suit in  the City  Civil Court at Bombay in which one of the prayers was  for permanent  injunction upon  the  defendants from putting  up any illegal or unauthorised construction on the suit  property, viz.,  plot of land being S.No.61, Hissa No.5, Part,  admeasuring 1932  sq. yards and industrial shed and also  plot of  land bearing  S.No.22, Hissa No.1, Paret, admeasuring 295  sq. yards  situated at  Valnai, Ramachandra Lane Extension, Malad (West), Bombay.      The  plaintiff   claimed  his   right  over   the  suit properties on  the basis  of the  Award dated 26th February, 1986 passed  by  the  Arbitrator.  On  5th  February,  1992, Motibhai Naranbhai  Patel, appellant  No.1, filed  his reply raising the  point of  maintainability of  the suit  on  the ground that the suit was in effect filed to enforce an Award which has  neither been  registered nor made the rule of the Court in accordance with law.      Promptly,   thereafter,    on   8th   February,   1992, Jayantikumar Ishwarbhai  Patel asked  the Arbitrator to file the Award,  passed on 26th February, 1986, in Court. After a long lapse  of six  years, the  Arbitrator Dinubhai Motibhai Patel not  only made  an application for filing the Award in Court but  also applied  for a  decree in terms of the Award and engaged  a lawyer  for this  purpose. This action of the Arbitrator is  incomprehensible.  It  appears  that  he  had decided to  shed the  mantle of an arbitrator and join force with a  party in  the dispute.  A decree,  as prayed  by the Arbitrator, was passed by the Court of Civil Judge (S.D.) at Anand on  5th  October,  1994.  It  may  be  mentioned  that Jayantikumar Ishwarbhai  Patel had also applied for a decree in terms  of the  Award. Both the applications were disposed of by  the aforesaid  order passed on 5th October, 1994. The appeal against  the decree  was  dismissed.  The  appellants have, therefore, come up on appeal before this Court.      The only  question that falls for determination in this case is  whether the  Arbitrator could after a long lapse of nearly six  years from  the date of the Award file his Award and ask  for a decree in terms of the Award, especially when neither of  the two  parties made any application for filing of the  Award in  Court even  after receiving  intimation of making of  the Award.  The question of making an application under  Section  17  of  the  Arbitration  Act  for  judgment according to  the Award  cannot arise  until and  unless the Award is  filed in  Court. There is no specific provision in the Arbitration  Act casting  a duty  upon the Arbitrator to file his  Award in  Court  suo  moto.  Article  119  of  the Limitation  Act  lays  down  a  time  limit  for  making  an application for  filing the  Award in  Court or  for setting

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aside  the   Award  or   getting  the   Award  remitted  for reconsideration. In the instant case, the Arbitrator has not merely filed  the Award  in  Court,  he  has  also  made  an application (Miscellaneous  Civil Application No.19/1992] in the Court  of Civil Judge (S.D.), Anand, under Section 14 of the Arbitration  Act and has engaged a lawyer Shri G.B. Shah to obtain  orders as  prayed. It  has been  recorded in  the judgment passed  by the  Civil Judge on 5th October, 1994 on the application made by the Arbitrator:-      "The brief facts of the applicant’s case      are as under:-      That the applicant was appointed as Sole      Arbitrator in  the dispute  between non-      applicants by reference dated.21/5/1985.      That after  giving an opportunity to the      non-applicant,   the    applicant    had      declared  his  Award  on  26/2/1986  and      intimation of  the Award  were given  to      the non-applicants.  That  non-applicant      No.1&       2        requested       the      applicant/arbitrator    through    their      advocate Shri  C.G. Dave  by letter dtd.      24.4.86 not  to file  the award and non-      applicant No.5 by his letter dtd. 8/2/92      requested  the  applicant/arbitrator  to      file the  award. Hence  this application      has been  preferred to  file  the  award      under  the  provisions  of  Sec.  14  of      Arbitration Act.  That it  is prayed  by      the applicant that the non-applicant may      be served  with the notice of filing the      award and decree may please be passed in      terms of  the award.  In other words the      award  passed   by  the  arbitrator  may      please be made the rule of the Court and      decree in  terms of  the  award  may  be      passed."      It has  also been recorded that the non-applicants No.1 and 2  had also moved an application under Section 17 of the Arbitration    Act    and    had    contended    that    the applicant/Arbitrator had filed the present application under Section 14 of the Arbitration Act on 14th February, 1992 and the Award  should be  made the  rule of the Court and that a decree in  terms of  the Award  be passed.  The Civil  Judge ultimately passed the following order:      "Applications  are   allowed.  Award  is      hereby declared and made the rule of the      Court,"      In  other   words,  the   Civil   Judge   allowed   the applications for  filing of the Award and passed an order in terms of the Award.      Under sub-section  (2) of  Section 14,  a duty  is cast upon the  arbitrator to file the award or cause the award to be filed  in the  court at  the request  of the party to the arbitration agreement  or if so directed by the court. There is no  provision which  requires the  arbitrator to apply to the court for filing of the award and pass a decree in terms of the  award. An  application for filing the award in court has to  be made  within thirty days from the date of service of the  notice of  making of  the award under Article 119 of the Limitation Act. Even if it is held that Article 119 will apply only  to an application made by a party and not by the arbitrator,  Article  137  will  come  in  the  way  of  the arbitrator’s making  any application  beyond the  period  of three years from the date of making of the award.

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    Faced with the situation that an application for filing the Award  in Court  under Section  14(2) of the Arbitration Act has become barred by limitation, Jayantikumar Ishwarbhai Patel induced  the Arbitrator  to make  an  application  for filing of  the Award  and also for making the Award the rule of the Court. In other words, Jayantikumar Ishwarbhai Patel, a party to the dispute, with the help of the Arbitrator, did indirectly what  he could  not have done directly. We are of the view  that law  cannot be  allowed to be circumvented in this fashion.  The Court  should have  declined to entertain the application  moved by  the Arbitrator  nearly six  years after making  of the  Award. Without  the application of the Arbitrator, the  application made by Jayantikumar Ishwarbhai Patel under  Section 14(2)  could  not  survive.  The  court should not  come to  the aid of a party where there has been unwarrantable delay  in seeking  the statutory  remedy.  Any remedy must  be sought  with reasonable  promptitude  having regard to the circumstances.      In our  view, the  respondents Nos.3  to  5  cannot  be allowed  to   circumvent  the  law  with  the  help  of  the Arbitrator and  obtain indirectly  an order under Section 17 of the Arbitration Act, which they could not do directly.      The appeal  is allowed.  The order  passed by  the High Court on  30th September,  1994 and also the decree in terms of the Award passed by the Civil Judge (S.D.), Anand, on 5th October, 1994  are set  aside. There  will be no order as to costs.