I. S. ISRANI, J. - (1.) THIS civil misc. appeal under Section 39 of the Arbitration Act, 1940, (here-in-after referred to as 'the Act') has been filed against the order dated 28. 10. 1978, passed by the learned Distt. Judge, Ajmer in arbitration proceedings in civil suit number 57 of 1970, by which he refused to set aside the award on the basis of objections filed by the appellant under S. 13 read with S. 15 to 17 and 33 of the Act.
(2.) ALL will suffice to say for the purpose of this appeal that respondent No. 2, had purchased a truck on hire purchase agreement for Rs. 31,075/-which has to be paid by way of instalments. It was contended by the respondent that the appellant stood as. a guarantor of respondent number 2, and executed an agreement to this effect on October, 1966. It was agreed between the parties that* in case of the dispute with regard to hire purchase agreement, the same shall be referred to arbitration of one Shri Gopal Narain Mathur. The respondent No. 1, alleged that a dispute arose between the parties and the matter was referred to the arbitration on January 3, 1970, and the arbitrator gave its award and filed an application under S. 14 (2) of the Act to make the award a decree of the Court. The learned Distt. Judge, passed an ex-parte order dated March 19, 1971, against the appellant on the application filed by the arbitrator, but the same was set-aside on July 7, 1975. The next date was fixed on August 7, 1975, on which the appellant paid the costs of Rs. 200/- regarding setting-aside the ex-parte order. On this date, the appellant sought time to file objections to the award and filed his objections on August 20, 1975. The respondent submitted an application on several grounds and one of the grounds was that the application for objections dated August 20, 1975, was time barred and therefore, issue number 8, was framed regarding the question of limitation. The learned District Judge, recorded the evidence of both the parties and after hearing the arguments dismissed all the objections raised by the appellant vide his impugned order dated October 28, 1978. The contention of learned counsel for the appellant is that the trial court has grossly erred in holding that the application of objections filed by the appellant on August 10, 1975, was time barred. It is also contended that the issue number 2, which is regarding signatures of the appellant on the agreement, were secured by the respondent No. 1, in fact, on blank printed form. It is further contended that the arbitrator acted contrary to law and principles of natural justice as no hearing was given to the appellant. It is contended that appellant did not receive any communications from the arbitrator which is alleged to have been refused by the appellant. It is further contended that the arbitrator did not give any notice regarding award in writing to the appellant as required under the provisions of the Act. It is also stressed that the arbitrator has mis-conducted himself by filing the award in court suo-moto, which is contrary to the provisions of S. 14 (2) of the Act. Learned counsel for the appellant has pointed out that on application under O. 9 Rule 13, CPC filed by the appellant, the learned District Judge, set aside the ex-parte decree passed against the appellant on December, 18, 1973, vide his order dated July 7, 1975. It is further pointed out that even though ex-parte order was ordered to be set-aside on the above date, cost of Rs. 200/- was imposed on the appellant and the next date in the case was fixed on August 7, 1975. It is therefore, contended that the objections filed by the appellant on August 20, 1975, were within the period of 30 days from the date of August 7, 1975, the day on which the costs of Rs. 200/-for setting-aside the ex-parte order was paid by the appellant. It is stressed that the ex-parte order is deemed to have been set-aside only on payment of costs which was done on August 20, 1975, and the appellant could not have filed the application of objection earlier than that. Regarding other grounds it has been urged by the learned counsel for the appellant that from the evidence on record it is clear that the trial court has erred in relying upon the evidence of respondent No. 1, in comparison to that of appellant. It is usual practice of the financiers that the signatures of the loanee and guarantors are obtained on blank forms and this was also done in this case. It is further contended that even though there is endorsement of refusal on the notice sent under registered post but merely on that ground it cannot be said that the appellant refused to accept the same. Reliance has been placed on the case of Ratnava Vs. Gurushiddappa (1) in which it was held that the fact that parties were aware of making of award is wholly irrelevant circumstance in computing limitation, keeping in view the provisions of S. 42 of the Act. In the case of The District Co-operative Development Federation Ltd. Vs. Ram Jamuji Tewari (2) it was held that mere signatures of counsel of parties on award, does not amount to service of notice of award on the parties. It was further observed that Article 178 (now Article 119 of the new Limitation Act), will not govern award which is filed by the arbitrator either suo-moto or on the suo moto direction of the Court in absence of an application under S. 14 of the Act. In the case of M/s United Builders Vs. Union of India and ors. (3), it was held that any knowledge of filing of award from extraneous source would not constitute notice as per the provisions of Section 14 (2) of the Act. However, it was further observed that no formal notice under Section 14 (2) of the Act, would be necessary where a party has acquired knowledge of filing of the award in the Court, but such knowledge must be one which directly or indirectly emanates from the Court in which the award is filed. In the case of Chhota Khan and another Vs. Jeevan Khan & ors (4) it was held by this Court that even when award is signed by the arbitrator as also by the parties, the limitation would run from the date on which notice under S. 14 (1} of the Act, is served subsequently on the parties. Mr. K. N. Tikku, learned counsel for the respondent contends that the learned trial court has given a detailed judgment with the reasons on decision of each issue, which does not call for any interference. It is further contended that the endorsement of refusal on the notices sent by the arbitrator to the appellant sufficiently proved that he deliberately refused to attend the proceedings before the arbitrator. Apart from that a notice was published in the 'daily Nayjyoti' news-paper, regarding filing of the award by the arbitrator which was also ignored by the appellant. It is pointed out that the award was filed in the Court by the arbitrator on application of the respondent No. 1. It is further contended that in any case appellant came to know of the award when he inspected the file of the Court and filed an application under O. 9 R. 13 CPC on December 18, 1973, in the trial court. It is therefore, stressed that in any case, the appellant came to have knowledge of the award on December 18, 1973 and he could have filed an application raising objections for setting-aside the award within 30 days from the above mentioned date, but this was not done. There-after the ex-parte order was set-aside on July 7, 1975, and the trial-court did not fix any particular date for payment of costs but fixed the next date on August 7, 1975, to see whether payment of costs Rs. 200/- has been made by the appellant. The appellant did not file any objection within 30 days from the date of July 7, 1975 also but filed objections only on August 20, 1975. It is, therefore, contended that from all angles it is evident that the appellant came to have knowledge of the award as early as December 18. 1973, but preferred to file objections only on August 20, 1975. It is further contended that it has been fully proved that the agreement was explained to the appellant, there-after he signed the same as guarantor of respondent No. 2. Full opportunity of hearing was given by the arbitrator to the appellant but he in his own wisdom thought not to participate in the proceedings. It is also pointed out that on an application of respondent No. 1, the arbitrator filed award in the Court and a notice of the same was given by the Court to the appellant as required under the provisions of the Act. Therefore, there is no ground on which proceedings taken by the arbitrator or by the trial-court can be assailed. Learned counsel has also placed reliance on the case of Parasramka Commercial Co. Ltd. Vs. Union of India (5) in which it was observed that the words 'notice in writing' cannot be limited to only a letter, and a notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed. Where a copy of the award signed by the arbitrator is sent to the party in whose favour award is made, there is sufficient notice that the award had been made and signed. A notice of the amount of the fees and charges payable in respect of arbitration and award is not an essential part of the notice for the purpose of limitation. Reliance has also been placed on the case of Neelkantha Vs. Kashi Nath (6), in which question of limitation and the provisions of Section 14 (2) of the Act, were discussed. In the case of National Insurance Co. Vs. Poonam Chand Jain and another (7) the principles laid-down in the case of Neelkantha Vs. Kashi Nath (supra) were followed and it was held that the limitation would run from the date of knowledge of filing of the award. In the case of Union of India Vs. Ajeet Ram Jain (8), it was held that under clause (b) of article 119 of the Limitation Act, 1963, the period of limitation of 30 days for filing of an application for setting-aside the award has been given simply to reckon the period of limitation after the expiry of which a party cannot be permitted to file an objection but that does not mean that a party cannot file an objection before the period of limitation starts to commence. In the case of State of West Bengal Vs. M/s. Mandal & Co. , (9) it was held while discussing S. 14 (2) and 33 of the Act, that the limitation under Article 119 for setting-aside the award, starts from the date of informal notice or even oral notice of filing award in the Court. In the case of Bahadur Singh Vs. Fuleshwar Singh and ors. (10), in which again the authority of Neelkantha Vs. Kashi Nath (Supra) has been relied, it was held that there can be no doubt that the respondent came to know of the filing of the award on June 12, 1967, when he filed an application for inspection and therefore, his objections were obviously beyond 30 days from that date.
(3.) IT has been further contended by the learned counsel for the respondent that the appellate-court, is not expected to re- examine and re-appraise the evidence considered by the arbitrator, and held that the conclusion reached by the arbitrator is wrong, except when the finding of the arbitrator is purverse. Reliance in this respect has also been placed on the case of The President, U. O. I. and another Vs. Kalinga Constitution Co. (11 ). I have heard the learned counsel appearing on behalf of both the parties and also perused the impugned judgment, award and the record of the trial-court. No notice was required to be given by the arbitrator to the appellant as required under S. 14 (1) of the Act, as this provision is not applicable to the facts and circumstances of the present case. The arbitrator as per clause (2) of S. 14 of the Act, on an application made by respondent No. 1, filed the award in the Court whereupon notice was issued by the court to the appellant which was published in the 'daily Navjyoti' news-paper. It is also evident that before filing the application to set-aside the ex-parte decree under O. 9 Rule 13 of the CPC, passed by the trial-court in favour of the appellant, appellant inspected the file of the Court and had knowledge on December 18, 1973, regarding passing of the award by the arbitrator. As a prudent person he infact should have filed an application of objections against the award even alongwith the application to set-aside the ex-parte decree under the provisions of O. 9 Rule 13 of the CPC. Even if this aspect of the matter may be over-looked, the ex-parte order was set-aside on July 7, 1975, on costs of Rs. 200/- and the next date in the case was fixed on August 7, 1975. When the ex-parte order was set-aside on July 7, 1975, there was no reason why the appellant did not file objections within 30 days from this date and waited till August 20, 1975, for filing of the objections. If the appellant desired, he could have paid costs of Rs. 200/- at any time before August 7, 1975, and also filed the objections to set-aside the award in the Court. In the case of Neelkantha Vs. Kashi Nath (Supra) the Apex-court has clearly held, while discussing this question of limitation, as under : - "according to Art. 158 of the Limitation Act, the period of limitation for an application to set-aside an award under the Arbitration Act, 1940, begins to run from "the date of service of the notice of the filing of the award". There is no ground to construe the expression 'date of service of notice' to mean only a notice in writing served in a formal manner. When the Legislature used the word 'notice' it must be presumed to have borne in mind that it means not only a formal limitation but also an informal one. Similarly it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. ";