1964 Supreme(Ori) 55

HIGH COURT OF ORISSA
G. K. Misra, J.
GANESH CHANDRA MISRA - Appellant
Versus
ARTATRANA MISRA - Respondent
Civil Revn.  288  Of  1963
Decided On : MAY 06, 1964

The principle of waiver and estoppel applies to arbitration proceedings, and a party who takes part in the proceeding and submits himself to the jurisdiction of the arbitrators after the expiry of the time limit fixed for making the award is estopped from challenging the validity of the award as being out of time.

Headnote:

ARBITRATION - WAIVER AND ESTOPPEL - JURISDICTION OF ARBITRATORS - LIMITATION - APPLICATION TO SET ASIDE AWARD - INHERENT JURISDICTION OF COURT - CIVIL REVISION - JURISDICTION OF HIGH COURT.

Fact of the Case:

An arbitration agreement was executed between the petitioner and the opposite party, appointing three arbitrators to decide their dispute. The arbitrators entered on the reference on 10-7-1958. Both parties applied for time before the arbitrators on various dates. Eight witnesses were examined by the petitioners and two witnesses by the opposite party from 26-5-1959 to 28-5-1959. The award was passed on 26-6-1959 and was signed by all the arbitrators. The award was filed in court by one of the arbitrators on 25-7-1959. The opposite party filed an application under Section 33 of the Arbitration Act, 1940, challenging the validity of the award. The trial court dismissed the application, holding that the award was not maintainable as it was filed only by one of the arbitrators and that the application was barred by limitation. The lower appellate court dismissed the appeal.

Finding of the Court:

The High Court held that the award was valid as the opposite party had waived his objection to the jurisdiction of the arbitrators by taking part in the proceeding and submitting himself to their jurisdiction after the expiry of four months from the date of reference. The Court further held that the application filed by the opposite party under Section 33 of the Act was barred by limitation and that the Court had no inherent jurisdiction to examine the validity of the award on the ground raised in the application. The Court also held that the finding of the Courts below that the arbitrators misconducted themselves was based on surmise and not on evidence and must be vacated.

Issues: 1. Whether the award was valid as the opposite party had waived his objection to the jurisdiction of the arbitrators by taking part in the proceeding and submitting himself to their jurisdiction after the expiry of four months from the date of reference? 2. Whether the application filed by the opposite party under Section 33 of the Act was barred by limitation? 3. Whether the Court had inherent jurisdiction to examine the validity of the award on the ground raised in the application? 4. Whether the finding of the Courts below that the arbitrators misconducted themselves was based on surmise and not on evidence?

Ratio Decidendi: 1. The Court held that the award was valid as the opposite party had waived his objection to the jurisdiction of the arbitrators by taking part in the proceeding and submitting himself to their jurisdiction after the expiry of four months from the date of reference. The Court relied on the principle of waiver and estoppel, which applies to arbitration proceedings, and held that the opposite party was estopped from challenging the validity of the award as being out of time. 2. The Court held that the application filed by the opposite party under Section 33 of the Act was barred by limitation. The Court relied on Article 158 of the Limitation Act, which provides a limitation period of thirty days for an application to set aside an award or to get an award remitted for reconsideration. The Court held that the application was filed long after the expiry of the limitation period and that it was not saved by Section 5 of the Limitation Act. 3. The Court held that the Court had no inherent jurisdiction to examine the validity of the award on the ground raised in the application. The Court held that under Section 16 (c) of the Act, the Court may remit the award for reconsideration where an objection to the legality of the award is apparent on the face of it. However, in this case, there was no illegality apparent on the face of the award and no such question was raised in the Courts below. Therefore, the Court held that it had no inherent jurisdiction to examine the legality of the award. 4. The Court held that the finding of the Courts below that the arbitrators misconducted themselves was based on surmise and not on evidence. The Court held that there were neither pleadings nor evidence to prove that some of the arbitrators did not take part at some or any stage of the proceeding. Therefore, the Court held that the finding of the Courts below was based on surmise and not on evidence and must be vacated.

Final Decision: The High Court allowed the Civil Revision and set aside the judgments of the Courts below. The petitioner was entitled to a judgment according to the award and a decree shall follow the judgment.