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1978 Supreme(J&K) 44
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
A.S. Anand,I.K. Kotwal, JJ.
Gian Kaur - Appellant
Versus
S. Atma Singh - Respondent
CIA No. 19/1969
Decided On : 09 August, 1978
Advocate For Appellant: K.N. Bhat
Advocate For Respondent: M.L. Qureshi
The court has power to set aside an award suo moto only if there is any patent illegality or voidness or the award directs a party to do an act which is prohibited by law.
Headnote:
ARBITRATION - AWARD - SETTING ASIDE - GROUNDS - POWER OF COURT TO SET ASIDE AWARD SUO MOTO - SCOPE AND EXTENT - DISTINCTION BETWEEN GROUNDS MENTIONED IN SECTION 30 OF THE ARBITRATION ACT AND OTHER GROUNDS - LIMITATION FOR FILING APPLICATION TO SET ASIDE AWARD - INTERPRETATION OF SECTION 30, 33 AND 17 OF THE ARBITRATION ACT AND ARTICLE 158 AND 181 OF THE LIMITATION ACT.
Fact of the Case:
An application was filed under section 14 of the Arbitration Act for making an award a rule of the court. Objections were filed by the respondent alleging misconduct on the part of the arbitrators. The trial court set aside the award on the ground of misconduct. The appellant challenged the order of the trial court.
Finding of the Court:
1. The court has power to set aside an award suo moto where it contains a direction to a party to do an act prohibited by law or where its voidity or any other illegality including the one relating to any one or more of the grounds mentioned in section 30 is apparent on its face. 2. Where an award is sought to be set aside on grounds mentioned in section 30 and the plea raised is such which requires evidence to be recorded an application within the period prescribed under Art. 158 of the Limitation Act shall be imperative. 3. An award may be challenged either on grounds mentioned in section 30 or on grounds of non-existence or invalidity of the arbitration agreement or reference, but in each case an application shall have to be made under section 33 of the Act. 4. Where an award is to be challenged on grounds mentioned in section 30, the period of limitation for making an application to that effect shall be 30 days as provided under Art. 158, and where it is to be challenged on grounds of non-existence or invalidity of the arbitration agreement or reference the period of limitation shall be three years as provided in Art. 181 of the Limitation Act.
Issues: 1. Whether the trial court had jurisdiction to set aside the award suo moto on the ground of misconduct? 2. Whether the application under section 14 of the Arbitration Act was barred by time? 3. Whether the court could condone the delay in filing the objections to the award?
Ratio Decidendi: 1. The court has power to set aside an award suo moto only if there is any patent illegality or voidness or the award directs a party to do an act which is prohibited by law. If this illegality is not patent and requires an enquiry to find out that the court may not be justified in expressing its suo moto jurisdiction. 2. An application for setting aside an award on the grounds mentioned in section 30 of the Arbitration Act is barred by limitation if it is not filed within 30 days from the date of service of notice of the filing of the award. 3. The court cannot condone the delay in filing an application to set aside an award beyond the period prescribed under the Limitation Act.
Final Decision: The appeal was allowed, the order passed by the trial court was set aside and the case was remitted back to the trial court with directions to decide whether the arbitration agreement discloses any intention on the part of the parties to fill up the vacancy caused by the death of the arbitrators. If the court finds that no such intention is disclosed, it shall declare that the arbitration agreement shall cease to have effect with respect to the property yet to be partitioned and pass a decree in terms of the present award. If the court comes to the conclusion that the agreement discloses such an intention, it shall appoint new arbitrators and remit the dispute pertaining to the property left unpartitioned for their adjudication.
1. This appeal has a chequered history and arises in the following circumstances:
2. One Raibahadur Ganda Singh owned property in more than one place. He was survived by three sons, namely, Mal Singh, Atma Singh and Balwant Singh; all of whom agreed to appoint two persons as arbitrators to partition among them entire property left by their father. A written agreement accordingly, came to be executed on 10th of Katik 999 Samvat and two persons, namely S. Gurmukh Singh, S. Mool Singh Khosla were appointed as arbitrators. The arbitrators gave their award on 20th Katik 2000 Samvat. Mal Singh moved an application under section 14 of the Arbitration Act (hereinafter to be referred to as the act) in the High Court on 18th Phagan 2007 Samvat with a composite prayer that the arbitrators be directed to file the award in the court and thereafter the same be made a rule of the court. This application was transferred by the High Court to the District Judge Srinagar on March 26, 1951. The District Judge, on receipt of the file, issued notices to the respondents in the said application, namely; Atma Singh and Balwant Singh. Pursuant to these notices, the respondents appeared in the court, and on 8th Har 2008 Samvat the court also issued directions to the arbitrators to file the award in the court. The arbitrators filed the award in the court on 3rd of Sawan 2008 Samvat in presence of the applicant and counsel for the non-applicants who were given notice of the filing of the award the same day by the court. The counsel for the parties sought time to file their objections, and the case was fixed for 29th of Sawan 2008 Samvat. Before this date, it appears, respondent Balwant Singh filed his objections wherein he stated that he would have no objection in case the award was made a rule of the court. Counsel for respondent Atma Singh, however, sought another opportunity, to file objections, which were ultimately filed by him on 4th of Bhadoon 2008 Samvat. In his objections, he not only pleaded that the application under section 14 was barred by time, but also took various objections to the validity of the award. The controversy, between the applicant and the respondent Atma Singh, gave rise to a number of issues. Both of them joined the issues and led evidence in support of their cases. Mal Singh applicant died in the meantime. His widow Mst. Gian Kour, the appellant herein was brought on record as his sole heir. The District Judge vide his order dated June 4,1969, refused to make the award a rule of the court and dismissed the application under section 14 inter alia holding:
(i) that the application was not barred by time as the arbitrators had failed to serve upon the applicant notice in writing that they had made the award ;
(ii) that it was not possible to say whether or not the award was made within time ;
(iii) that the arbitrators had committed legal misconduct, inasmuch as, they had made the award after the long delay of 8 years which had in turn resulted in mis-carriage of justice ; and
(iv) that the arbitrators did not go beyond the terms of reference though they failed to give the award in respect of all the matters referred to them.
It is this order which has been challenged in the present appeal. Atma Singh respondent No. 1 herein alone has contested the appeal. The other respondent, namely Balwant Singh has chosen to remain absent.
3. This appeal was filed on July 2, 1969. Initially, it was heard by a Bench consisting of Chief Justice S. M. F. Ali (as His lordship then was) and Late Bakshi Ishwar Singh J. The court being of the view, that in the absence of any evidence, as to when the arbitrators had entered upon the reference, it would not be possible to hold, whether or not the award was made beyond limitation, remitted the case back to the District Judge, with the direction that he shall return his finding after recording fresh evidence on the point. As none of the parties chose to lead any evidence, the District Judge su
