Full Judgment Text
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CASE NO.:
Appeal (civil) 1238-1239 of 2001
PETITIONER:
EAST INDIA HOTELS LTD.
Vs.
RESPONDENT:
AGRA DEVELOPMENT AUTHORITY
DATE OF JUDGMENT: 21/03/2001
BENCH:
Syed Shah Mohammad Quadri & S.N. Phukan.
JUDGMENT:
L...I...T.......T.......T.......T.......T.......T.......T..JJ U D G M E N T
PHUKAN, J.
Leave is granted.
In these appeals by special leave, appellant has
assailed the judgement dated 1.10.1999 of the High Court of
Allahabad passed in Civil Revision No.106 of 1999. The
appellant filed an application under Section 20 of the
Arbitration Act, 1940 (for short the Act) before
Additional Civil Judge, Agra, which was allowed and the
disputes between the parties were referred to arbitration.
After the proceedings were concluded, the Umpire filed the
award before the court on 13.11.1998, which was made rule of
the court by order dated 25.02.1999. Being aggrieved, the
respondent filed a revision petition before the High Court,
which was allowed by the order under challenge, on the
ground that no notice under sub-section (2) of Section 14 of
the Act was served on the respondent.
To appreciate the contentions raised by the learned
counsel for the parties, it is necessary to refer to the
orders passed by the trial court on different dates:
13.11.1998 Case was called for. The Parties are
absent. The Award was filed by the Umpire Shri Jethanandji.
Shri Prem Narain Agarwal, learned counsel for East India
Hotels and Shri Suresh Chandra Gupta, learned counsel for
Agra Development Authority be informed. Umpire Shri
Jethanandji shall place on record all the papers concerning
the Award within fifteen days.
Case be put up on 14.12.1998 for further orders.
Sd/- VIth Addl. Civil
Judge (Sr. Division)
Agra.
Noted for filing of the Award.
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Sd/- 13-11-1998
(Counsel for East India Hotel).
Sd/- 19-11-1998
For ADA (Parokar)
Kirpa Shankar.
Sd/-
Suresh Chander Gupta
Sr. Standing Counsel, ADA
23-11-1998.
On 28.11.1998 case record was put up and the court
recorded the fact of filing of papers concerning the award
by the Umpire, as directed by the court and further directed
to put up the case on the next date fixed. On 14.12.1998
the presence of the parties was noted but the court could
not take up the case for want of time. That order was duly
noted on behalf of the respondent. On 4.01.1999 the court
recorded filing of the application under Section 17 of the
Act by the appellant and noted that a copy was supplied to
the respondent who prayed for time to file reply. The case
was put up on 7.01.1999, presence of parties was recorded
and the next date was fixed on 14.01.1999 as on that date
the case could not be taken up on account of strike by the
lawyers. On 19.02.1999 parties were present in the court,
arguments were heard and on 25.02.1999, the award was made
rule of the court.
We have now to determine as to what amounts to service
of notice under sub-section (2) of Section 14 of the Act.
Dr. Singhvi, learned senior counsel has contended that
notice under sub-section (2) of Section 14 need not be in
writing and what is essential is that notice or intimation
or communication of filing of Award must be issued and
communicated by the court to the parties. According to the
learned counsel notice to the counsel representing the party
would be sufficient compliance in view of Rule 5 of Order
III C.P.C. The learned senior counsel has further submitted
that as the order passed by the trial court on 13.11.1998
was noted by the learned standing counsel for the
respondent, it was sufficient notice under sub-section (2)
of Section 14 of the Act. In the alternative it was
contended by the learned senior counsel that if the said
order dated 13.11.1998 is not accepted as notice under sub-
section (2) of Section 14 as along with the award, the
records were not filed by the Umpire, the order dated
14.12.1998 would amount to notice, as the order was passed
by the trial court after records were filed by the Umpire
and it was duly noted on behalf of the respondent.
Mr. Dwivedi, learned senior counsel for the respondent
drawing our attention to the language of sub-section (2) of
Section 14 of the Act, has contended that only after award
along with depositions and connected documents are filed by
the Arbitrator/Umpire, the stage of issuance of notice under
said sub-section (2) would arise. In this connection
learned counsel has also placed reliance on Rule 8 of the
Arbitration Rules framed by the Allahabad High Court.
According to the learned senior counsel as on 13.11.1998
records from the Umpire were not received by the court, the
said order though noticed by the learned counsel for the
respondent would not be a notice to the parties.
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We extract below sub-section (2) of Section 14 of he
Act: 14. (2) The arbitrators or umpire shall, at the
request of any party of 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 together with any depositions and documents which
may have been 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 a perusal of the above provision, shorn of
unnecessary details, it is clear that notice under
sub-section (2) of Section 14 of the Act need not be in
writing and that it can also be oral. What is essential is
that there must be service of notice or intimation or
communication of the filing of the award to the parties,
mode of service of such a notice being immaterial. But such
information, communication and knowledge must be by or
pursuant to order of the court. However, after filing of an
award by the arbitrator or the Umpire in the court, if it
merely records the presence of the parties or their counsel
but does not indicate that notice of filing of the award be
given to the parties, no service of notice can be attributed
from that fact, as notice must be referable to an act of the
court.
Now we shall refer to the cases cited by the learned
counsel. In Nilkantha Shidramappa Ningashetti vs.
Kashinath Somanna Ningashetti and Others 1962 (5) SCC 400, a
four judge bench while considering sub-section (2) of
Section 14 of the Act held as follows:
Sub-section (1) of Section 14 of he Arbitration Act,
1940 (X of 1940) requires the arbitrators or umpire to give
notice in writing to the parties of the making and signing
of the award. Sub-section (2) of that section requires the
Court, after the filing of the award, to give notice to the
parties of the filing of the award. The difference in the
provisions of the two sub-sections with respect to the
giving of notice is significant and indicates clearly that
the notice which the Court is to give to the parties of the
filing of the award need not be a notice in writing. The
notice can be given orally. No question of the service of
the notice in the formal way of delivering the notice or
tendering it to the party can arise in the case of a notice
given orally. The communication of the information that an
award has been filed is sufficient compliance with the
requirements of sub- section (2) of Section 14 with respect
to the giving of the notice to the parties concerned about
the filing of the award. Notice does not necessarily mean
communication in writing. Notice, according to the
Oxford Concise Dictionary, means intimation, intelligence,
warning and has this meaning in expressions like give
notice, have notice and it also means formal intimation of
something, or instructions to do something and has such a
meaning in expressions like notice to quit, till further
notice. We are of opinion that the expression give
notice in sub-section (2) of Section 14, simply means
giving intimation of the filing of the award, which
certainly was given to the parties through their pleaders on
February 21, 1948. Notice to the pleader is notice to the
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party, in view of r.5 of O.III, Civil Procedure Code, which
provides that any process served on the pleader of any party
shall be presumed to be duly communicated and made known to
the party whom the pleader represents and, unless the Court
otherwise directs, shall be as effectual for all purposes as
if the same had been given to or served on the party in
person.
In Secretary to Govt. of Karnataka and Another vs. V.
Harishbabu 1996 (5) SCC 400 this court had occasion to
consider again sub-section (2) of Section 14 of the Act, the
Bench noticed the judgment passed in Nilkantha Shidramappa
Ningashetti vs. Kashinath Somanna Ningashetti and Others
(supra) and held that notice under sub-section (2) of
Section 14 of the Act need not be in writing and it might be
oral and there should be no formal mode of service; what is
essential is that notice or intimation or communication of
the filing of the award must be issued by the court to the
parties and served upon the parties. The dictum in these
cases support the view, we have expressed.
On 13.11.1998 the Trial Court recorded the fact of
filing of the award by the Umpire and directed that learned
counsel for the parties be informed. This order was duly
noted by the counsel for both the parties. In our opinion
the essential requirement of sub- section (2) of Section 14
was duly complied with inasmuch as intimation of filing the
award to the parties was communicated. As notice to the
counsel is notice to the party, the above order dated
13.11.1998 together with the endorsement of the advocate on
the proceeding sheet would amount to a proper and valid
service of notice under sub-section (2) of Section 14 of the
Act. We have already mentioned that as per the direction of
the court Umpire also filed the record. We, accordingly
hold that order dated 13.11.1998 which was noted by the
learned counsel, would amount to a valid notice under
sub-section (2) of Section 14. We, therefore, need not
consider the alternative arguments of Dr. Singhvi.
We may now consider the submission of Mr. Dwivedi,
learned senior counsel for the respondent. Learned senior
counsel has contended that the stage of issuance of notice
would come only after filing of the records by the
Arbitrator/Umpire and as no records were filed on
13.11.1998, the order passed by the court on that date could
not be treated as notice to the parties. We cannot accept
this contention. From a plain reading of sub-section (2) of
Section 14 it would appear that under this sub-section the
stage at which notice is required to be given by the court
is after filing of the award and the notice pertains to
the fact of filing of the award in Court. It is the duty
of the Arbitrator/Umpire to file depositions, documents,
etc. along with the award. If only award is filed and
other documents are not filed, the Court may issue notice
under this sub-section after the award is filed. It need
not postpone issuing of notice till all the documents are
filed. In our view a notice issued after filing of the
award but before filing of other documents is a valid notice
under sub-section (2) of Section 14 of the Act and no fresh
notice need be issued after filing of other documents by the
Arbitrator/Umpire.
In the case on hand by order dated 13.11.1998, court not
only directed issuance of the notice to the parties of the
filing of the award but also directed the Umpire to file the
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records which was duly compiled with by the Umpire before
the next date of hearing. After taking notice of filing of
award no controversy was raised by the respondent regarding
not filing of the records till the award was made rule of
the court nor could it have raised such a controversy on the
facts. In fact after filing of the application under
Section 14 of the Act by the appellant, time was prayed for
to file a reply on behalf of the respondent but no such
reply was filed. In view of the above position, we are of
the opinion that the contention of Mr. Dwivedi has no force
and accordingly it is rejected.
Mr. Dwivedi has also pressed into service Rule 8 of the
Arbitration Rules framed by the High Court. This rule
prescribes the mode of filing of the award and the procedure
to be followed by any party, if the records are not filed by
the Arbitrator/Umpire. This rule does not speak of issuance
of notice by the court under sub-section (2) of Section 14
and, therefore, would not be relevant for the present
purpose.
Relying on Rule 6 of the Arbitration Rules, Mr. Dwivedi
has contended that the order passed by the court on
04.01.1999 could not be construed as a notice. This point
needs no consideration as no submission was made on behalf
of the appellant that the order passed on that date would be
a notice under sub- section (2) of Section 14 of the Act.
For what has been stated above we find merit in the
present appeals and accordingly they are allowed by setting
aside the impugned judgment. The order of the Additional
Civil Judge, Agra dated 25.02.1999 making the award a rule
of the court is affirmed. Considering the facts and
circumstances of the case, we direct the parties to bear
their own cost.
T.N. CIVIL SUPPLIES CORPN. WORKERS UNION VS T.N. CIVIL SUPPLIES CORPN.LTD. & ORS.