Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
SREE SREE MA ENGINEERING & ANR.
DATE OF JUDGMENT08/09/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
OZA, G.L. (J)
CITATION:
1987 AIR 2229 1988 SCR (1) 69
1987 SCC (4) 452 JT 1987 (3) 553
1987 SCALE (2)507
ACT:
Arbitration Act, 1940:
Sections 14 to 16, 28 and 30-Unsigned award by
Arbitrator-Whether can be made rule of the Court-Whether
Court can cure this formal defect by remitting award for
signature.
HEADNOTE:
There was a dispute between the first respondent and
the appellant in respect of Silt Clearance of River Peali
from Uttarbhag Canning Road Bridge up to Hobon Sluice. The
matter was referred to the Arbitrator, who made his award.
The respondent was paid a sum of Rs.32,525.62 in terms of
the award, and a true copy of the award was forwarded to the
Court.
The first respondent filed an application under
Sections 14, 15, 16 and 30 of the Arbitration Act, 1940,
for setting aside the award. A Single Judge of the High
Court dismissed the application and passsed a judgment in
terms of the award. The Division Bench having allowed the
appeal of the respondent, the matter again came up before
the Single Judge, who allowed the application of the
respondent under Section 5, 11 and 12 of the Act and
appointed a retire Judge of the High Court as arbitrator and
later revoked the authority of the said arbitrator and
appointed a lawyer of the High Court as arbitrator.
The appellant filed an appeal against the said decision
to the Division Bench, which held that as there was an
extension of time in making the award and the award having
been filed within the extended time, the award was not
beyond time. However, it held that an unsigned award could
not be made a rule of the Court.
Disposing of the appeal by special leave, this Court,
^
HELD: Under law, the mandatory rule is that the award
should be signed by the Arbitrator. No doubt an unsigned
award cannot be made a rule of the Court. But it is only a
formal defect. The Court, in such circumstances, can extend
time for making the award and direct
70
curing of the formal defect in the award. So much time and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
effort should not be allowed to go waste. Law must subserve
justice and endeavour to serve the purpose of law. [71 F-G]
In the instant case, the award was handed over to the
parties and a letter was sent to the parties concerned and
award bore no signature of the Arbitrator. The parties acted
upon the award. In a situation of this nature, the proper
order in the interest of justice would be to remit the
award, under Section 16 of the Arbitration Act, for enabling
the Arbitrator named therein for signing the award and for
that purpose if it is necessary under Section 28 of the
Arbitration Act, the Court has the power to extend the time
to the Arbitrator for making the award final.[71F. H; 72A-B]
Accordingly, the time is extended by four months and
the award remitted to the Arbitrator for signature. [72B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2190 of
1987.
From the Judgment and Order dated 29th August, 1986 of
the Calcutta High Court in Appeal No. 204 of 1986.
Amal Dutta, D.K. Sinha and J.R. Das for the Appellant.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Special leave granted.
This is an appeal challenging the decision of the High
Court of Calcutta upholding the decision of the learned
Single Judge of that Court whereby the award of the
arbitrator was set aside and new arbitrator was appointed.
In order to appreciate the position it is necessary to state
that in the year 1964 the Executive Engineer had invited
competitive sealed tenders in respect of "Silt Clearance of
River Peali from Utterbhag Canning Road Bridge upto Hobon
Sluice". Shri D.P. Chatterjee entered upon the reference
soon thereafter and the award was made in November, 1966. It
appears that thereafter the respondent asked for the award
amount in full and final settlement which the Executive
Engineer turned down. The respondent herein was paid by the
appellant a sum of Rs.32,525.62 in terms of the award and
which sum was received and acknowledged by the respondent
No. 1. Then the true copy of the award was forwarded to the
Court by the Chief Executive Engineer and the application
was
71
filed by the respondent No. 1 in 1981 in the High Court of
Calcutta under Sections 14, 15, 16 & 30 of the Arbitration
Act, 1940 for setting aside the award dated the 19th
November, 1966. The High Court after hearing the parties
dismissed that application on 10th May, 1982. The High Court
was thereafter pleased to pass judgment in terms of the
award. The respondent herein preferred an appeal against the
judgment dated 10.5.82. The Division Bench allowed the
appeal of the appellant. The appellant’s advocate did not
notice that the matter appeared in the daily list dated 26th
April, 1985 of the learned Single Judge for judgment and as
such he did not know the result of the judgment. Thereafter
the matter again appeared in the list of the learned Single
Judge and the respondent had made an application before the
learned Single Judge for setting aside the previous order.
The learned Single Judge on 18th March, 1986 rejected the
application of the appellant and allowed the application of
the respondent herein under Section S, 11 and 12 of the
Arbitration Act and appointed a retired Judge of the High
Court as the arbitrator and thereafter revoked the authority
of the said arbitrator from acting as the arbitrator and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
appointed a lawyer of the High Court as the arbitrator. The
appellant preferred an appeal against the said order dated
the 3rd December, 1985 before the Division Bench of the High
Court of Calcutta.
Two points were raised before the learned Single Judge,
firstly that the award was beyond time and secondly, the
learned arbitrator had not signed the award. The Division
Bench found that as there was an extension of time in making
the award and the award having been filed within the
extended time, expressed the view that there was no force in
the first point. The Division Bench, however, was unable to
accept unsigned award being made the rule of the Court.
It is true that an unsigned award cannot be made the
rule of the Court. But it is only a formal defect. It
appears that the award was handed over to the parties and a
letter was sent to the parties concerned and award bore no
signature of the arbitrator. The parties had acted upon the
award. It is true that under the law the mandatory rule is
that the award should be signed by the arbitrator. But law
must subserve justice and endeavour to serve the purpose of
law. The Court can in such circumstances extend time for
making the award and direct curing of the formal defect in
the award. So much time and effort should not be allowed to
go waste.
In the situation of this nature the proper order in the
interest of H
72
justice would be to remit the award under Section 16 of the
Arbitration Act, 1940 for enabling the arbitrator named
therein for signing the award and for that purpose if it is
necessary under Section 28 of the Arbitration Act, 1940, the
Court has the power to extend the time to the arbitrator for
making the award final. We did so. We extend the time by
four months from today and direct the award be remitted to
the arbitrator for signature.
The appeal is disposed of accordingly.
N.P.V. Appeal disposed of.
73