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High Court Of Madhya Pradesh
Bishambhar Dayal, S. P. Bhargava, JJ.
Jamna Prasad Agrawal
Vs.
Mahesh Prasad Shukla
Misc. F.A. No. 106 of 1966
Decided on : 17-9-1969.
(2) Limitation Act, 1963 - Art. 119 - applicability of - not applicable to application made by the Arbitrator-Arbitration Act, 1940 - S.14.
Article 11 9 of the new Limitation Act, which corresponded to Article 178 under the old Limitation Act, applies only when an application is made by the parties far filing an award. The said Article has reference only to the application made by a party to the arbitration proceedings and is not intended to apply to an arbitrator filing an award in Court. AIR 1960 SC 629, AIR 1951 Nag. 32, ILR 1946 Bom. 113 & ILR 7 Cal. 333 relied on. [Para 6
(3) Arbitration Act, 1940 - S.28, Sch. 1, R.3 – award filed after four months of the reference-power of the Court to enlarge time- powers of the appellate Court-time may be enlarged suo motu-discretion how to be exercised.
Section 28 (I) enacts that the Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award Under this provision, If an award has been made by an arbitrator beyond time, the delay may be condoned at any time by the Court in a proper case, for this section gives power to the Court of extend time even after the award has been made. AIR 1962 SC 78 & AIR 1945 Cal. 19 relied on. [Para 9
The word 'Court' as used in section 28 would also include an appellate or revisional Court when the matter is before it for consideration. [Para 11
If the trial Court was called upon to consider the question of enlargement of time, and decided the question one way or the other, and it appeared that the discretion was exercised by it judicially, its opinion could be held to be final. But where the trial Court did not consider that question at all, there is no reason to hold that the question of extension of time cannot be considered by the appellate court. AIR 1956 Born. 459 distinguished. [Para 11
It is true that the power of the Court under section 28 is discretionary but discretion has to be exercised on sound judicial principles. What is necessary for the Court for exercising its discretion in favour of enlargement of time is that the case Should be a fit one for exercising that discretionary power. The conduct of the party in appearing before the arbitrator even after the time for making the award had expired without any objection on the ground of time is to be read as a further consideration on in favour of enlarging the time for the making of the award. AIR 1957 Cdl. 658 & AIR 1958 All. 568 relied on. [Para 12
The Court can enlarge time even suo motu. AIR 1954 Orissa 29 relied on. [Para 12
(4) Appeal-powers of the appellate Court-can exercise all the powers of the trial Court.
The appeal is a continuation of the suit and hearing of the appeal is a rehearing of the lis. The appellate Court, from the very nature of its jurisdiction, can exercise all those powers which are vested in the trial Court. [Para 11
Bhargava, J.
l. This appeal arises out of an application which was made by the first respondent under section 14 of the Arbitration Act in the trial Court. The trial Court held the said application to be barred by time and dismissed it. The appellant, who was one of the parties impleaded in the said application, has filed this appeal.
2. Briefly stated, the facts are these. The appellant agreed to purchase a house belonging to the second' respondent for Rs. 11,000 on 28-3-1959 and he paid Rs. 9000 out of the agreed sale price to him on that date. The agreement is Ex. P-l on record. The appellant then paid a further sum of Rs.1000 towards the sale price to the second respondent on 6-4-1960. According to the terms of Ex. p-1, the sale deed was to be executed within one year. However, no sale deed was executed within that time and on 6-4-1960 under the agreement Ex. P-1-A the parties extended the time of the execution of the sale deed till 28-3-61. No sale deed was executed within this extended period also, but on 28-3-1962 the appellant and the second respondent entered into a fresh agreement where- by they agreed to the total sale price being raised to Rs. 14,000. The appellant paid Rs.1000 to the second respondent on 28-3-1962 and the time for execution of the sale deed was extended by one year. A notice was then given by the appellant to the second respondent on 1-7-1963 requiring the respondent to execute the sale-deed after receiving from the appellant the remaining price thereafter the appellant and second respondent agreed to refer their dispute to the arbitration of the first respondent Shri Mahesh Prasad Shukla, Advocate. The arbitrator entered on the reference on 8-8-1963. However, he made his award on 11•4-1965 and filed it in Court on 20-10-1965 impleading the appellant Jamna prasad and Dwarkaprasad as non-applicants in the application. He prayed that the award made by him may be made a rule of the Court and a decree may be passed in accordance with the award.
3. The first respondent in his award held that the real nature of the transaction between the parties was that of a loan and the appellant Jamna Prasad was entitled to recover from Dwarkaprasad the amount of Rs. 11, 000.
4. The second respondent urged in reply to the application of the first respondent under section 14, inter alia, that as the award was not filed within thirty days of its having been made, it was barred under Article 119 of the new Limitation Act (corresponding to Article 178 of the Limitation Act, 1908). The second objection raised was that as the award had not been made within four months of the arbitrator-respondent having entered on the reference and as the time was not got extended by the Court, the award could not be made a rule of the Court.
5. The trial Court considered both these objections as preliminary objections. It decided both these objections in favour of the second respondent and dismissed the application of the first respondent as being barred by time. Feeling aggrieved, the appellant has filed this appeal.
6. Both the learned counsel agreed before us that the finding of the trial Court about the application under section 14 of the Arbitration Act being barred by time on the ground that the award was not filed in Court by the Arbitrator within one month of the date of its making, was erroneous. Article 119 of the new Limitation Act, which corresponded to Article 178 under the old Limitation Act, applies only when an application is made by the parties for filing an award. The said Article has reference only to the application made by a party to the arbitration proceedings and is not intended to apply to an arbitrator filing an award in Court. (See Champalat Vs. Mst. Samrathbai AIR 1960 SC 629; Robarts Vs. Harrison ILR VII Cal. 333; Jayantilal Jamnadas Gandhi Vs. Chhaganlal Nathoobhai Mehta ILR 1946 Born. 113 and Gendalal Motilal Vs. Malhuradas Ramprasad and others AIR 1951 Nag, 32. It is, therefore, held that the finding recorde
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