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1985 Supreme(Cal) 425
IN THE HIGH COURT AT CALCUTTA
Pratibha Bonnerjea, J.
Jaydeb Bose – Petitioner
Versus
State of West Bengal & other – Respondents
Matter No. 579 of 1985
Decided On: December 12, 1985
The provisions of section 14(2) of the Arbitration Act will have no application where the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf. However, the court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure. The provisions of the Code of Civil Procedure will apply to all proceedings before the court and to all appeals under the Arbitration Act, subject to the provisions of the Act and of the rules made thereunder.
Headnote:
ARBITRATION - FILING OF AWARD - AUTHORITY OF ARBITRATOR - LIMITATION - SECTION 14(2) OF THE ARBITRATION ACT, 1940 - SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 - ARTICLE 119 OF THE LIMITATION ACT, 1963 - Where the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf, section 14(2) of the Arbitration Act will have no application. However, the court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure. The provisions of the Code of Civil Procedure will apply to all proceedings before the court and to all appeals under the Arbitration Act, subject to the provisions of the Act and of the rules made thereunder. An application for filing the award can only be made under the Arbitration Act and under no other Act or provision. Hence, section 41(a) of the Arbitration Act will apply to such an application whether it is made strictly in accordance with the provisions of section 14(2) or not. The court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure, even if the application is not made strictly in accordance with the provisions of section 14(2) of the Act.
Fact of the Case:
The petitioner filed an application to grant him leave to file the award signed by the Arbitrator on 21.10.1983. The arbitrator died on 22.4.1984 before filing the said award. The respondents opposed the application, alleging that the petitioner was not authorized by the arbitrator to file the award.
Finding of the Court:
The court held that the provisions of section 14(2) of the Arbitration Act will have no application where the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf. However, the court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure. The provisions of the Code of Civil Procedure will apply to all proceedings before the court and to all appeals under the Arbitration Act, subject to the provisions of the Act and of the rules made thereunder. An application for filing the award can only be made under the Arbitration Act and under no other Act or provision. Hence, section 41(a) of the Arbitration Act will apply to such an application whether it is made strictly in accordance with the provisions of section 14(2) or not.
Issues: 1. Whether the court can make an order for the filing of an award under section 151 of the Code of Civil Procedure, even if the application is not made strictly in accordance with the provisions of section 14(2) of the Arbitration Act? 2. Whether the provisions of the Code of Civil Procedure will apply to an application for filing the award, even if it is not made strictly in accordance with the provisions of section 14(2) of the Arbitration Act?
Ratio Decidendi: 1. The court held that the provisions of section 14(2) of the Arbitration Act will have no application where the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf. However, the court may, in a proper case, make an order for the filing of the award under section 151 of the Code of Civil Procedure. The provisions of the Code of Civil Procedure will apply to all proceedings before the court and to all appeals under the Arbitration Act, subject to the provisions of the Act and of the rules made thereunder. An application for filing the award can only be made under the Arbitration Act and under no other Act or provision. Hence, section 41(a) of the Arbitration Act will apply to such an application whether it is made strictly in accordance with the provisions of section 14(2) or not. 2. The court held that the provisions of the Code of Civil Procedure will apply to an application for filing the award, even if it is not made strictly in accordance with the provisions of section 14(2) of the Arbitration Act. The opening words of section 41 of the Arbitration Act subject to the provision of this Act and of rules made thereunder clearly indicate that the provisions of the Civil Procedure Code will apply to all proceedings and appeals which are permitted to be made under the Act. It has already been held in Panchanan's case that .there is nothing in the Act to indicate that the provisions of section 14(2) are exhaustive and as such stringent construction of this section would be unreasonable.
Final Decision: The court directed the petitioner to produce the signed award dated 21.10.1983 before the Registrar. O.S., along with any other records and documents or copies thereof relating to the said arbitration proceeding which might be in his possession, within a week from date for the purpose of filling the said award in this court. The court also directed the department to issue Notice under Section 14(2) of the Act on the parties to the award within a fortnight from the date of re-opening of the court after the Christmas vacation.
Pratibha Bonnerjea, J.
1. This is an application by the petitioner to grant him leave to file the award signed by the Arbitrator on 21.10.1983. It is alleged in the petition that the arbitrator died on 22.4.1984 before filing the said award. Prior to his death, the petitioner by his letter dated 8.12.1983, requested the arbitrator to file the award and made all the payments and charges due to him. But the arbitrator died subsequently without filing the award.
2. In the affidavit-in-opposition, the respondents alleged that the petitioner was not authorised by the arbitrator to file the award and as such, he was no right to make this application. No party can file an award without the authority of the arbitrator.
3. To appreciate this argument the provisions of Section 14(2) of the Arbitration Act have to be considered.
"Section 14(2) – The arbitrators or umpire shall, at the request or 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, cause the award or a signed copy of it, 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."
4. The respondents' Counsel submits that the award should be filed either by the arbitrator himself or by some one with his authority. If none of these conditions is fulfilled in a particular case, then section 14(2) of the Arbitration Act will have no application. Hence the present application cannot be treated as an application under section 14(2) of the Arbitration Act. He strongly relies on Panchanan Dey vs. Union of India, 63 CWN 382, in support of his contention, where it has been held by our Division Bench at page 388 as follows:-
"Section 14(2) – So far as is material, provides that the arbitrator or umpire shall at the request of any party to the agreement or any person claiming under such party or if so directed by the court, cause the award or a signed copy of it, 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. Obviously the section pre-supposes that the arbitrator or umpire is alive and available or at the most, if he is dead or not available, be has before his death or departure from the place authorised a party or some one else to file the award in court on his behalf. But where, as here, the arbitrator dies before filing the award and without authorizing anyone to file it on his behalf, the section can have no application."
5. The respondents' Counsel builds up his argument on the basis of the authority mentioned above and submits that this award cannot be filed at all. He also cites Smt. Hoora & other vs. Abdul Karim, AIR 1970 Rajasthan 22, a single Bench decision, where it has been held at page 25 paragraph 10:-
"The court cannot act on an award which has not been filed under the authority of the arbitrators either by a party or by some other agent of the arbitrators."
6. The single Bench in Hoora's case has relied on Kumbha Mewji vs. Union of India, AIR 1953 SC 313, where it has been held that section 14(2) implies that where the award is in fact filed into court by a party, he should have the authority of the arbitrator or umpire for doing so and that authority has to be specifically alleged and proved. The respondents' counsel invites my attention to the facts of this case and points out that in this application no allegation has been made by the petitioner that he had any authority from the deceased arbitrator to file the award on his behalf. Hence court should not pass any order on this application. He also submits that the present application is barred by limitation under Article 119 of the Limitation Act.
7. It is true that the petitioner in the
