HIGH COURT OF RAJASTHAN
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(1.)THIS is a revision application by the legal representatives of one Allarakha against an order of the District Judge, Merta, holding that the application filed oy allarakha under Section 17 of the Arbitration Act was not in accordance with law as the award which he filed had not been filed in accordance with Section 14 (2) of of the Arbitration Act. Allarakha filed the original registered award in Court and alleged in Paras. 6 and 7 of his application under Section 17 that the arbitrators had given the award to him for taking legal proceedings.
(2.)IT is common ground between the parties that the dispute between Allarakha and Abdul Karim with regard to a piece of land situated at Merta was referrea to five arbitrators under an agreement which is on record. The five arbitrators appointed under it were Haji Mulla Usman, Abdulla, Farid Baksh, Noor Mohammad and Ashraf Ali. Four of these arbitrators filed an affidavit in support of the application of Allarakha in which it was alleged that the award was handed over by noor Mohammad to Allarakha on behalf of Noor Mohammad and the remaining arbitrators for taking legal proceedings on the basis of it. These 4 arbitrators were cross-examined. Noor Mohammad stated in cross-examination: -. . (Vernacular Text Ommited ). . In the first part of the above statement he has used the word ----In the second part he has however stated that. . (Vernacular Text Ommited ). .
From the above statement it cannot be inferred that Noor Mohammad had been authorised by the other arbitrators to hand over the award to Allarakha for taking legal proceedings. At any rate the remaining 3 arbitrators who filed affidavits in support of Noor Mohammad made conflicting statements in cross-examination. Hazi Mulla Usman's cross-examination goes to show that he was under the impression that the award was still with Noor Mohammad. In re-examination the affidavit was read out to him. Then he stated that what he had alleged in the affidavit was true and that he had made a wrong statement in cross-examination. Abdulla stated in cross-examination that the award was written on two stamp papers one of which was given to Allarakha. Abdul Karim was called to take the duplicate but he refused to take it. The arbitrators then told Allarakha that as abdul Karim was not willing to abide by the award he should take legal steps to enforce it. The award which was filed in Court is a registered one. He did not know who brought the registered document from the Registration Department. Farid baksh is the son-in-law of Allarakha and he supported what he had alleged in his affidavit. The fifth arbitrator Ashraf was examined by Abdul Karim as his witness. He stated that he did not authorise any one to hand over the award to Allarakha. From the evidence on record it is clear that it is not proved at any rate that Haji mulla Usman authorised the handing over of the award to Allarakha. The fact that in re-examination he admitted what he had stated in the affidavit was correct and that his statement in cross-examination was wrong goes to show that this witness was not hostile to Allarakha. I have therefore no reason to doubt that the statement made by him in cross-examination is true and that he at any rate did not authorise Noor Mohammad to deliver the award to Allarakha.
On behalf of the applicants it was contended that Noor Mohammad had been appointed as umpire and therefore he could have authorised Allarakha to file the award in Court. The arbitration agreement does not provide for the appointment of an umpire. The number of arbitrators appointed was odd and therefore under para. 2 of the First Schedule of the Arbitration Act there was no implied power in the arbitrators to appoint an umpire. The arbitrators in their statements in Court referred to Noor Mohammad as the Sarpanch. These included Ashraf who appeared as a witness for Abdul Karim. The fact that the arbitrators treated Noor mohammad as an umpire would not clothe him with authority under Section 14 (2)to deliver the award to Allarakha for filing it in Court without the authority of the remaining arbitrators.
Section 14 (2) runs as follows:
"the arbitrators or umpire shall, at the request of 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 and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have oeen 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. "
From the language used in the above sub-section it is clear that the award should be filed under the authority of all the arbitrators or under the authority of the umpire. Where there is no umpire, as in the present case, the award can only be filed by the authority of all the arbitrators who give the award.
On behalf of the applicants it was contended on the authority of the decision of a learned single Judge of the Nagpur High Court in R. K. Mishra v. Kundanlal shahni, AIR 1949 Nag 349, that the award can be filed by the authority of a single arbitrator even where there are more than one arbitrator. With all respect the reasoning given by the learned Judge in support of the view is not correct. Where there is only one arbitrator the word "arbitrators" will naturally mean the single arbitrator appointed in the case. But where the number of arbitrators is more than one then the words "the arbitrators shall at the request of any party. . . . . or if so directed by the Court. . . . cause the award. . . . to be filed in Court" can only mean that all the arbitrators who have been appointed should authorise the filing of the award in Court. The learned Judge has relied on Rule 7 of the Rules framed under section 44 of the Arbitration Act by the Nagpur High Court. The Rule framed under section 44 cannot override the express provisions of the section of the Act. Another reason which is given is that the filing of the award in Court is merely a ministerial act. The filing of the award is no doubt a ministerial act which can be performed by any agent of the arbitrators. But the person filing it should have the autho- rity of all the arbitrators. Whether the award has been filed with the authority of all the arbitrators or not is a matter of substance under Section 14 (2 ). For unless the award is filed under the authority of all the arbitrators the Court is precluded from acting on it.
The learned single Judge has purported to rely on four decisions none of which can be interpreted to lend support to the view taken by him. In Narayan Bhawu v. Dewaji Bhawu, AIR 1945 Nag 117, the only question which arose for decision was whether the award was filed at the request of any of the parties. In Raghubir pandey v. Kaulesar Pandey, AIR 1945 Pat 140, the award was given unanimously by 5 arbitrators but only 4 had signed it and it was held that it was valid. In shamdas Teumal v. Khimanmal, AIR 1914 Sind 90, the question whether one arbitrator had filed the award with the authority of others was not raised at all. In khatiza Bee Bee v. I. E. Abowath, AIR 1927 Rang 197, it was expressly held that one arbitrator can send the award to Court on behalf of himself and others. It presupposes the authority on behalf of all the arbitrators.
I accordingly hold that Section 14 (2) contemplates the filing of the award either by a party or by an agent of the arbitrators with the authority of all the arbitrators. Unless the award is so filed the Court cannot act on it.
(3.)ON behalf of the applicants my attention was drawn to the decision of a division Bench of the Allahabad High Court in Rahmetulla v. Vidya Bhusan, AIR 1963 All 602. In that case the party in whose favour the award was given filed it in court and made a prayer that a decree be passed on it. It was not alleged by the plaintiff that he was filing the award under the authority of the arbitrators. When notice was issued to the opposite party no objection was raised that the award was filed without the authority of the arbitrators. From this absence of objection the learned Judges concluded that the award was filed with the authority of the arbitrators. With all respect no such inference can be drawn from the failure on the part of the defendant to raise an objection. It was held in Kumbha Mawji v. Dominion of India, AIR 1953 SC 313, by their Lordships of the Supreme Court 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 arbitrators or umpire for doing so and that authority has to be specifically alleged and proved. In Rahmetulla's case AIR 1963 All 602, Rahmetulla did not allege in his application that he had been authorised by the arbitrators to file the award in Court. As such the Court had no jurisdiction to pass a decree on the basis of the award. In this connection I may refer to the decision of another Division Bench of the same High court in Araod Kumar v. Hari Prasad, AIR 1958 All 720 in which it was held that section 14 (2) contemplates that the award is filed in Court under the authority of the arbitrator. The question as to whether it can only be filed under the authority of all the arbitrators or only some of them was not considered in that case. The only question which was considered was whether the Court could act on an award filed by a party without the authority of the arbitrator. It was observed-
"section 14 (2) contemplates the filing of the award in the Court by the arbitrator; it is not essential that he should himself take it to the Court and it is enough if he causes it to be filed. It is true that no formality in the act of filing the award is required; the arbitrator need not make an application for permission or leave to file the award. He can just file the award in the Court without any application but the act of filing must be his or on his behalf; if somebody else files it without his authority or not on his behalf, so that he cannot be said to have caused it to be filed, it is not an act to be taken notice of by the Court. The effect of Section 14 (2) is that the Court is bound to receive the award and to proceed as laid down in it and the subsequent sections, but cannot be expected to do so whenever an award is produced before it by any person; therefore, the Legislature has laid down that it must be filed or caused to be filed by the arbitrator himself. An arbitrator cannot be said to have caused the award to be filed unless he delivers it to another person with a direction to file it or directs the person, who has custody of it, to file it. He must intend to file it and must do an act which results in its being filed; otherwise he cannot be said to have caused it to be filed. If an arbitrator simply hands over the award to a party, even if he knows or has reason to believe that the party will file it in the Court and it files it, so long as he has not expressly authorised it to file it, he cannot be said to have caused it to be filed. If some other person files it he must do so as the arbitrator's agent or as observed by the Supreme Court in AIR 1953 SC 313, he should have his authority. In that case the arbitrators handed over the award to a party and the party filed it in the Court; yet the Supreme Court held that the arbitrators did not cause it to be filed because the party had no authority from them to file it. . . . . . Sri Jagdish Swarup vehemently argued that an award can be filed in the court by a party also. He referred to the provisions of Section 38 which allow a party to apply to the Court for an order that the arbitrator shall deliver the award to it on payment of his fees and argued that the only object behind the party's being given the right to obtain the award from the arbitrator must be that it can file it in the Court and obtain a decree on it. The Act does not provide for the award coming before the Court if the arbitrator dies or refuses to file it in the Court or has filed it in another proceeding or has delivered it to a party who refused to file it in the court. An award is useless unless it is followed up by a decree; prior to the passing of the Arbitration Act of 1940 an award could be sued upon, but now a suit to enforce an award is barred. It was contended that if the award can be filed in the Court by the arbitrator and not by any of the parties, the making of the award would in some cases be rendered futile. There is undoubtedly much force in the contention that if the law is that the award can be filed in the Court only by the arbitrator, the making of it would be rendered futile in some cases; but our jurisdiction consists in interpreting the law and not enacting a law. The arguments that have been advanced are for legislating that a party should be given the right to file the award in the Court but would not justify a Court's inter- p reting Section 14 to mean that the award can e filed by a party also. The only right that has been given to a party is to apply to the arbitrator to file the award in the Court; there are no words which are capable of being interpreted to mean that it also has the right to file it in the Court. . . . . . I have pointed out earlier that if a person, who nas the actual custody of the award is directed by the arbitrator to file it in the Court and complies with it, the arbitrator has caused it to be filed in the Court. It must be conceded that in some rare cases the arbitrator will not be in a position to file the award or cause it to he filed; but it would be for the legislature to provide for a decree being passed on the basis of the award in such cases. " i am respectfully in agreement with the above observations and hold that 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. It was held in some un-reported decisions of this Court that a party can file the award in Court without the authority of the arbitrator and ask for a decree. Those cases were not correctly decided in my opinion.
Where an award is filed in Court by a party under the authority of the arbitrators or the arbitrators themselves cause it to be filed in Court at the request of a parry Article 178 of the old Limitation Act is not applicable to it. That article run as follows: "178. Under the Ninety The date of service of arbitration Act of 1940 days. the notice of the for filing in Court of an making of the award. award. "
The above article is only applicable where an award is filed on an application by a party under Section 14 (2) on the instructions of the Court. Under Article 119 of the new Limitation Act this period has been reduced to 30 days.
In view of what I have held above the revision application is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this revision application.
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