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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 1029

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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 1030 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. 1031 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               1032               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 1033 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 1034 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 1035 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.