Sinha, J. - (1.) THIS is an appeal against an order made by Mitter, J., dated 1st May, 1961 whereby he dismissed an application made on behalf of the respondent, under Section 14(2) of the Arbitration Act for setting aside a decree made in terms of an award made in Case No. 249 of 1949 of the Tribunal of Arbitration, Bengal Chamber of Commerce. The facts are briefly as follows: The appellant before us, the petitioner in the said application, is a partnership firm, of which the partners are Sohanlal Ruia and Iswari Prosad Ruia. By a contract in writing No. 46/A dated 29th March 1946 entered into between the appellant firm and the respondent company, Messrs. Clive Mills, Co. Ltd. the appellant sold and the respondent bought, 2000 mda of jute on terms and conditions mentioned in the said contract, which was in the prevailing contract form of the Indian Jute Mills Association. The said contract contained the usual arbitration clause whereby all disputes and differences were to be referred to the arbitration of the Bengal Chamber of Commerce, according to the rules of its Tribunal of Arbitration for the time being in force. Disputes and differences having arisen between the parties in respect of the said contract, the same were referred to the arbitration of the Tribunal of the Bengal Chamber of Commerce, in terms of the said arbitration clause and was numbered as Case No. 485 of 1947. In accordance with the rules of the said Tribunal, the Registrar constituted a court to adjudicate upon the dispute. Notice of the fact was given to the appellant and it was asked to file its statement. On account of certain proceedings had in this Court, the arbitration could not be proceeded with before July, 1949. On the 2Ist July, 1949 the Tribunal made an award against the appellant and in favour of the respondent, for a sum of Rs. 36,500/- together with interest at the rate of 6 per cent per annum, and costs. On the 23rd February, 1950 a notice under Section 14 (2) of the Arbitration Act (hereinafter referred to as the 'said Act") was issued from this Court; Section 14 (2) provides that the arbitrators shall, at the request of any party to the arbitration agreement, cause the award or a signed copy of it together with any deposition or document which may have been taken and proved before the arbitrators, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. The said 'Act does rot prescribe the manner in which the service of notice under Section 14(2) is to be effected. Section 44 of the said Act gives the High Court the power to make rules consistent with the said Act as to the filing of awards and all proceedings consequent thereon and incidental thereto. Rules have been framed by the High Court in exercise of such flower. Under Rule 14, where the provisions of Rule 13 are complied with by the arbitrators, the Registrar is required to file the award and to issue notice thereof to the parties under Section 14(2) of the said Act intimating to them that the Court will proceed to pronounce judgment thereon on a date to be fixed in the notice. The notice is in a prescribed form, being Form No. 6, and it is to be served by such party or parties as the Registrar may direct Rule 15 prescribes that such a notice has to be served not less than eight clear days before the returnable date, in the manner provided for service of notice in Chapter VIII, so far as the same may be applicable. Rule 26 of Chapter VIII lays down that "except where otherwise provided by Statute or prescribed by Rules of this Court, all notices, summonses, orders or other documents required to be given to or served, on any person, shall be served in the manner provided by the Code for the service of summons." Under Rule 28, "where personal service of a notice is required, the service shall be effected, as nearly as may be, in the manner prescribed for the personal service of a Writ of summons."
(2.) ON the 6th March, 1950 the notice is stated to have been served on the appellant and this appears from a joint affidavit of service affirmed on the 31st March, 1950 which has been filed in Court It will be necessary to refer to this affidavit in greater detail presently. ON the 17th April, 1950 a decree was passed upon the award. Besides the decree made in this case, the respondent obtained three other decrees against the appellant in Award Cases Nos. 248 of 1949, 277 of 1949 and 278 of 1949. In November 1955 the respondent made two applications for execution of two of these decrees by arrest and detention of Sohanlal Ruia, one of the partners, in civil prison. ON or about the 28th January, 1956 an application was made on behalf of "Chaturbhuj Sohanlal" by Sohanlal Ruia, describing himself as a Karta and/or a partner. In the application, the relief asked for was that four decrees passed in award cases of the Tribunal of Arbitration of the Bengal Chamber of Commerce, including the decree that was passed herein on the 17th April, 1950 should be set aside. The allegation in the petition was that Sohanlal Ruia was a Karta of a Hindu joint family and that several contracts were entered into with the respondent company by the said joint family. The petition proceeded to state that disputes arose under the said contracts and were referred to the arbitration of the said Tribunal and four awards were made and filed in Court and decrees were passed on the said awards. It was then stated that the award should be set aside because "no valid notice under Section 14(2) of the Indian Arbitration Act was issued in all the four cases". In order to appreciate why no valid notice was said to have been served the following grounds set out in the petition may be noted. "(b) No notice under Section 14 (2) of the Indian Arbitration Act was issued against your petitioner as Karta and/or as a partner or against any member of the joint family in any of the said cases. (c) Notice under Section 14(2) of the Indian Arbitration Act was not served on your petitioner as Karta of the joint family and/or as a partner and/or in any other capacity nor on any member of the said joint family. (e) As there was no valid notice under Section 14(2) of the Indian Arbitration Act and for no service in the manner prescribed by law there was no service as contemplated by Article 51 of the Limitation Art and therefore, the Limitation for applying to set aside the said Award never started to run and the decree was passed before expiry of time for applying to set aside the award." These grounds were supported by an affirmation of Sohanlal Ruia a being true to his knowledge. It is clear to me that in the grounds made out, there was no denial at the factum of service, but it was stated that the service was not in accordance with law and as such not a. valid service. This application having come up for hearing before S.R. Das Gupta J., an objection was made that one application could not be made for setting aside four awards which had no connection with one another. Thereupon, by an order dated 28th February 1956 the learned Judge allowed the applicant to withdraw the said application with regard to three of the decrees and the application was treated as being an application in respect of only one of them. The application, so far as the award in the present case was concerned, was withdrawn. On the 1st March, 1956 a second application was made for setting aside the decree dated 17th April, 1950 and the petition was made on behalf of "Chaturbhuj Sohanlal" through S7ohanlal Ruia as a Karta and/or a partner. In the meanwhile, what had happened was that a suit had been filed for partition of the joint family of the Ruias and on the 8th January, 1952 a preliminary decree for partition had been passed appointing a Special Referee and Commissioner of Partition to effect the partition. The Special Referee and Commissioner of Partition made a report that the business of "Chaturbhuj Sohanlal" did not form a part of the joint family of the Ruias, but was carried on by Sohanlal Ruia and Iswari Prosad Ruia in, their individual capacity and not as a joint family business. On the 14th February, 1955 a report of the said Special Referee was confirmed and a final decree was passed in the partition suit. In spite of all this, the petition, which was made on the 1st day of March, 1956 was made as aforesaid, and the grounds made out for setting aside the award were identical with those of the previous petition, namely, that no valid notice had been issued under Section 14(2) as it was not issued against Sohanlal Ruia as Karta and/or as partner or against any member of the joint family and that the service was not in a manner prescribed by law. On the 23rd April, 1956 the second application was dismissed on the ground that the petition made on behalf of "Chaturbhuj Sohanlal" through Sohanlal Ruia as Karta and/or partner and signed by Sohanlal Ruia as Karta was not in accordance with law. Liberty was however given to make a fresh application in accordance with law. Thereupon, an application was made, based on a petition affirmed by Sohanlal Ruia on the 25th day of March, 1957. This petition is set out in the Paper Book at pages 4 to 10. In the petition, it will be observed, that on this occasion the petition was made by "Chaturbhuj Sohanlal" itself and not through Sohanlal Ruia and it was signed by both the partners. In this petition, the grounds were varied, as will appear from the relevant ones set out below: "(a) No valid notice under Section 14(2) of the Indian Arbitration Act and/or Order 30 R. 3 of the Code of Civil Procedure was issued. (b) No notice under Section 14(2) of the Indian Arbitration Act was served on your petitioner validly or at all. (d) As there was no valid notice under Section 14(2) of the Indian Arbitration Act and/or no service in the manner prescribed by law there was no service as contemplated by Article 51 of the Limitation Act and therefore the Limitation for applying to set aside the said Award never started to run and the decree was passed before expiry of time for applying to set aside the Award."
(3.) IN the body of the petition nothing was said as to how the petitioner came to know of the decree. IN the affidavit in opposition, it was stated on behalf of the respondent that notice under Section 14(2) of the said Act had been validly issued and served upon Sohanlal Ruia who duly accepted the same but refused to sign in acknowledgment thereof. Reference was made to a joint affidavit of service affirmed by Ratanlal Saraf and Profulla Ranjan Pal affirmed on the 31st March, 195O and filed in Court. This allegation had been dealt with in the affidavit in reply affirmed by Sohanlal Ruia and Iswari Prosad Ruia on the 18th day of May, 1957. The relevant paragraph is paragraph 7 which runs as follows: "7. With reference to paragraph 7 of the said affidavit we repeat what we stated in paragraph S of the petition and deny each and every allegation contrary thereto. IN particular, we deny that the notice was validly issued and/or served or was served on Sohanlal Ruia. We dispute the insinuations contained in the said paragraph. We deny that the application is a frivolous one or has been made by way of counter-blast. We deny that the defect in respect of service of the notice has been waived or that we are estopped from taking any point as to the defect or that the defects relate to procedure.";