(1.) This application has been made on behalf of the State of West Bengal for setting aside an award in favour of the contractor. Disputes and differences arose between the parties out of a contract for excavation of main channel from Krishnapur to Kulti Reach F.G. in connection with Bagjola-Chuni-Jatragachi Drainage Scheme. Under Clause 25 of the contract the said disputes were referred to the sole arbitration of Sri H. N. Brahma, Superintending Engineer, Western Circle, Irrigation and Waterways Directorate, Government of West Bengal, who was duly appointed on July 15, 1963. After taking oral and documentary evidence of both the parties the arbitrator passed an award on December 24,1968, in favour of the contractor whereby a sum of Rs. 1,63,000 was to be paid by the Petitioner. The arbitrator filed the award on or about June 5, 1969, in this Court.
(2.) Mr. M. N. Banerjee on behalf of the contractor has raised the preliminary point that the application is barred by Article 119(b) of the Limitation Act, 1963. Mr. Chakraborty on behalf of the Petitioner has, however, contended that in the present case the Petitioner received the notice under Section 14(2) on or about July 14, 1969, and the present application has been made within 30 days from the said date. Relying upon several decisions he has asked me to reject the contention of the Respondent's counsel.
(3.) As the Respondent has not stated any facts on the basis of which the said preliminary point was raised, supplementary affidavit has been filed on behalf of the Respondent showing that the Registrar, Original Side, High Court, Calcutta, wrote to the arbitrator on June 5, 1969, informing him that the award had been filed on that date. On June 13,1969, a copy of the said letter was sent to the Executive Engineer, Canals Division, Irrigation and Waterways Directorate, Government of West Bengal, and also to the contractor. The counsel for the Respondent has argued that the Petitioner and the Respondent duly received copies of the said letter on or about June 16, 1969. Thus, although the Petitioner received the said notice of filing the award the Petitioner chose to make this application on August 12, 1969. Mr. Chakraborty, as stated earlier, has submitted that the period of limitation would commence from July 14, 1969, when the formal notice was served on his client under Section 14(2) of the Act by the Registrar, Original Side, High Court, Calcutta. It may be stated here that the Petitioner has not filed any counter-affidavit in reply to the Respondent's said supplementary affidavit. In course of the argument also Mr. Chakraborty has not contended that the said letter darted June 13,1969, was not received by his client at all. Ordinarily, it is expected that the Petitioner should file an affidavit in reply to the Respondent's supplementary affidavit challenging the sufficiency or validity of the letter or notice dated June 13, 1969. Both the counsel proceeded on the basis that Article 119(b) of the Limitation Act, 1963, would apply in the present case. The said Article reads as follows:
It is the common case for both the parties that the period of limitation for filing the present application is 30 days 'from the date of service of the notice of the filing of the award'. Mr. Chakravorty has argued that the notice mentioned in Article 119(b) is the statutory notice under Section 14(2) of the Arbitration Act. The letter or notice dated June 13, 1969, is only a reply to the arbitrator's letter and, as such, it cannot be deemed to be a notice under Section 14(2). The notice dated July 14, 1969, itself shows that this is the only notice which has been issued under Section 14(2) and, as such, the period of limitation would commence from the service of the said notice dated July 14, 1969. According to him rules have been framed by Original Side, High Court, Calcutta, under Section 44 of the Arbitration Act, 1940. The relevant rules of the Original Side, High Court, Calcutta, are set out in Appendix No. 14 at p. 900 which may be stated as follows:
13. The Arbitrator or umpire shall forward the Award, or a signed copy thereof (duly stamped) together with any depositions and documents which may have been proved before them or him when causing the same to be filed under Section 14(2) of the Act together with necessary court-fees for filing (and in case of awards in languages other than English Rs. 2 for every folio of ninety words as translation fees) under a sealed cover to the Registrar with a letter requesting that the award be filed.
14. When the provisions of the Act and of Rule 13 have been complied with the Registrar shall file the award and issue notice thereof to the parties under Section 14(2) of the Act intimating to them that; the Court will proceed to pronounce judgment thereon on a date to be fixed in the notice (Form No. 6). Such notice shall be served by and at the expense of such party or parties as the Registrar may direct.
Under Rule 13 the arbitrator shall forward the award or a signed copy thereof together with depositions and documents to the Registrar, Original Side, High Court, Calcutta, requesting him in writing that the award be filed. Under Rule 14 if the arbitrator forwards the said award with the records of the proceedings under Rule 13, it is the mandatory duty of the Registrar to file the said award and to issue notice thereof to the parties under Section 14(2) of the Arbitration Act intimating to them that the Court will proceed to pronounce judgment thereof on a date to be fixed in the notice. But the said Rule 14 of the Original Side specifically states, such notice under Section 14(2) shall be served by and at the expense of such party or parties as the Registrar may direct. This rule, therefore, shows that the notice under Section 14(2) of the Act is not served by the Court or by the Registrar without reference to the parties. Notice under Section 14(2) is served at, the instance of a party or parties at his or their expenses as the Registrar may direct. Now, when the arbitrator forwards the award under Rule 13 in accordance with Section 14(2) of the Act, the parties would not necessarily have knowledge of the same. The Registrar does not incur expenses for serving notice under Section 14(2) of the Act on his own. He will have to get the expenses from the interested party and, therefore, the Registrar will have to inform the parties that necessary steps for notice under Section 14(2) would have to be made. In my opinion, that is, the back-ground, why a notice earlier than the notice under Section 14(2) has got to be served on the parties, and this was done in the present case when the Registrar wrote to the parties on June 13, 1969. Thus, it cannot be said that the letter dated June 13, 1969, is a notice under Section 14(2) of the Act, as argued by the counsel for the Respondents, nor can it be urged that such notice is unauthorised and not sanctioned by law as contended by the counsel for the Petitioner. The notices under Section 14(2) shall be made returnable before the Court and are to be served not less than 8 clear days before the returnable date in the manner set out in Rule 15 in chap. VIII of the rules. Thus the rules having been duly framed under Section 44 of the Arbitration Act and they not having been challenged provide for the following preliminary steps are to be followed:
(a) The arbitrator shall forward the award or a signed copy thereof duly stamped together with the depositions and documents, proved before him for filing the same under Section 14(2) of the Act together with necessary court-fees.
(b) While forwarding the said award with the records of the arbitration proceeding the arbitrator shall write a letter to the Registrar, Original Side, requesting the award to be filed.
(c) After the arbitrator forwards the said award with the records of the arbitration proceeding and writes the said letter requesting the Registrar to file the award, the Registrar shall do the same.
(d) The Registrar shall ask the parties for providing him with necessary expenses for issuing the formal notice under Section 14(2) of the Act. For the said purpose the Registrar may if he has not been offered such expenses by any party inform the parties that the award has been filed in the Court.;