Salil K.Roy Chowdhury, J. - (1.) THE COURT
(2.) THIS is an application for setting aside an award inter alia on the ground that the award is alleged to have been made beyond time. Mr. Gour Roy Chowdhury, appearing for the petitioner submitted in his usual fairness that the award being out of time and the arbitrator being functus officio the award must be said to be bad and must be set aside. Whereas, Mrs. Puspa Choucharia appearing for the respondent pointed out to a letter written by both the parties which is annexed to the affidavit of Niranjan Lal Todi affirmed on the 14th day of May, 1980, at page 43 being the affidavit in opposition filed on behalf of the respondent which is set out hereunder : "26th July, 1979 In the Matter of Arbitration Between Messrs. Ganesh Narayan Brijlal Ltd. v. Thakur Sankar Prasad Singh and Ors. As agreed in the meeting held on 11th April 1979 we confirm in writing the extension of time for the Arbitrator to make and publish the award. The time of the Arbitrator to make and publish the award is agreed to be extended till 30th September 1979 from the date of the last meeting. The extension of time up to 30th September 1979 have been agreed notwithstanding anything else contained in the minute or the said date. For Ganesh Narayan Brijlal Ltd. Sd/- Niranjan Lal Todi. Sd/- Thakur Sankar Prasad Singh. Sd/- Rama Sankar Singh. Director. (In Hindi)."
(3.) FROM that letter it is quite clear that the parties agreed to extend the time for making the award by the arbitrator and the only point which Mr. Roy Chowdhury tried to eanvass is that the arbitrator has not mentioned the said letter. In his minute or in the award and, therefore, it must be held that the award was made beyond time. I am unable to accept the said contention as from the conduct of the parties when the said letter agreeing to extend the time by the arbitrator is not disputed and which has come into existence after the meeting held on the llth April 1979 as recorded in the said letter itself the award must be held to be valid and binding on the parties and the meeting out of time is extended by the arbitrator with the consent of the parties as recorded in the said letter. Section 114 Illustration (e) applies to this case as the arbitrator is performing a judicial act in discharging his judicial function making and publishing the said award. The award is a non-speaking award and in the absence of any positive evidence it must be presumed that the arbitrator has extended the time with the consent of the parties as recorded in the said letter and, admittedly, the award has been made within the said extended time i. e., 30th September as the date up to which date the time was extended and the award dated 4th September, 1979, is within the extended time to which the parties agreed and the arbitrator must have with the consent of the parties extended the time.;