JUDGMENT J.C. Mishra, J.
1. This revision has been filed against the order dated 25.2.1999 passed by Additional Civil Judge (Senior Division). Agra, making the award, the rule of Court on the ground that no objection was filed by either party and awarding interest at the rate of 15% from the date of order till the date of realisation on the amount awarded.
2. The revision was time-barred. The application filed by the revisionist to condone the delay was allowed after hearing the parties.
3. Initially the learned counsel for the opposite party had raised preliminary objection that the impugned order is not revisable and being a decree only appeal could be filed. However, during the hearing the learned counsel for the opposite party gave up this plea and argued the revision on merits.
4. The grievance of the revisionist is that no notice as envisaged under Section 14(2) of the Arbitration Act was given and therefore, the award could not be made the rule of the Court.
5. The learned counsel for the opposite party on the contrary contended that since the counsel for the revisionist had knowledge about the filing of the award, there was no necessity of giving a notice by the Court and as no objection was filed by the revisionist disputing the award the same was rightly made rule of the Court.
6. In order to appreciate the argument advanced by the learned counsel, a brief resume of some events may be given. It is not disputed that an application under Section 20 of the Arbitration Act was moved before the Additional Civil Judge, Agra in Suit No. 137 of 1995 on 17.2.1995 and the said application was allowed on 17.8.1995. The Umpire Jethanand Ji filed award on 13.1.1998. The learned Additional Civil Judge directed the office to inform the learned counsel for the parties, namely, Srf Prem Narain Agrawal, the learned counsel for the East India Hotels and Sri Suresh Chandra Gupta, the learned counsel representing the Agra Development Authority. The Umpire was further directed to file documents concerning the award. The learned Additional Civil Judge fixed 24.12.1998 for further orders.
7. The order sheet indicates that Sri Jethanand Ji filed record on 28.11.1998. The learned Additional Civil Judge directed the case to be put up on the date fixed, i.e., 14.12.1998. On that date, the case could not be taken up as the Presiding Officer could not get time to take up this case and he adjourned the case to 7.1.1999. On 7.1.1999 and on subsequent date 14.1.1999, the case could not be taken up.
8. The order sheet indicates that the learned counsel for the revisionist Agra Development Authority appended his signature on the order sheet on 23.11.1998. It may be mentioned that 23.11.1998 was not a date fixed in the Court and till that date, the Umpire had not filed record and the statements recorded by the Arbitrators. Thereafter the case could not be taken up on subsequent dates for one reason or another, either due to strikes of the lawyers or the Presiding Officer being busy with some other cases. On 19.2.1998, the learned Presiding Officer heard the learned counsel for the parties on the application for making the award the rule of the Court and thereafter passed the impugned order on 25.2.1999.
9. In the said application which was filed by East India Hotels Limited, it was averred that the Umpire Sri Jethanand Ji Advocate had filed his award on 13.1.1998 and the parties were also informed about the filing of the award. It was further stated that the limitation for filing objection against the award as per Article 119 of the Limitation Act. 1963, was thirty days from the date of notice of the filing of the award and as none of the parties had filed objection against the award the same may be made the rule of the Court and a decree be passed in terms of the award.
10. From the above narration, it appears that in compliance of the order of the Additional Civil Judge, no notice/information of the filing of the award by the Umpire was served on the revisionist and further the statements and other documents in the record were not filed by the Umpire till 28.11.1998. It also appears that on 23.11.1998 the learned Senior Standing Counsel of Agra Development Authority had appended his signature on the order sheet. The question that arises for consideration is whether this endorsement made by the standing counsel on the order sheet recording the filing of the award could be treated as notice envisaged by Section 14(2) of the Arbitration Act. The second question that may arise for consideration is whether the notice as required by Section 14(2) of the Act could be given before the filing of the record. From the order sheet it does not appear that the revisionist or its counsel was ever given notice of the filing of the award after the record concerning the award was filed by the Umpire.
11. From the order sheet, it also appears that the impugned order was passed after hearing the learned counsel for the parties. The relevant provision of Section 14 of the Arbitration Act is reproduced below for convenience :
"14. Award to be signed and filed.--(1) When the arbitrators or Umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.
(2) The arbitrators or Umpire shall, at the request of any party to 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 it 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.
(3) Where the arbitrators or Umpire state a special case under clause (b) of Section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the award."
12. Article 119 of the Limitation Act. 1963, provides the period of limitation "(b) for setting aside an award or getting an award remitted for reconsideration thirty days from the date of service of the notice of the filing of the award".
13. Sub-section (1) of Section 14 requires the Arbitrator or Umpire to give a notice in writing to the parties of the making and signing of the award. In the case before this Bench, no notice as envisaged by sub-section (1) was given by the Arbitrator/ Umpire.
14. The issuance of a notice under Section 14(2) of the Act by the Court is a mandatory requirement though the section does not prescribe any formal mode of the service of the notice and this information can be given even orally. It has been observed by the Supreme Court in Secretary to Government of Karnataka v. Harishbabu, JT 1996 (6) SC 489, that it is the substance and not the form of the notice which is relevant and once it is established that a notice or communication or information of the filing of the award has been issued by the Court and served on the party concerned, the statutory requirements of Section 14(2) of the Act would stand satisfied. Keeping in view the difference in the phraseology of Sections 14(1) and 14(2) of the Act, it follows that the notice from the Court under Section 14(2) of the Act need not be in writing. It can be oral also but what is necessary is that a notice, communication or information to the effect that an award has been filed in the Court must be given by the Court to the parties concerned. A notice by the Arbitrator under sub-section (1) of the Act is not a substitute for the notice which the Court is enjoined upon to issue under sub-section (2) of Section 14 of the Act.
15. A four Judge Bench of the Supreme Court In Niikantha Shidramoppa, Ningashetti v. Kashinath Somanna Ningashetti and others, 1962 (2) SCR 551, while considering the requirements of service of notice under Section 14 of the Act opined :
"Sub-section (1) of Section 14 of the Arbitration Act, 1940 (Act 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 subsections 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 subsection (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."
16. In Indian Rayon Corporation Limited v. Raunaq and Company Pvt. Limited, 1988 (3) SC 382 : (1988) 4 SCC 31, while dealing with the question of limitation with regard to the filing of the objections seeking the setting aside of an arbitration award, the Supreme Court opined :
"The fact that the parties have notice of the filing of the award, is not enough. The notice must be served by the Court. We reiterate again that there must be (a) filing of the award in the proper Court ; (b) service of the notice by the Court or its office to the parties concerned ; and (c) such notice need not necessarily be in writing. It is upon the date of service of such notice the period of limitation begins and as at present under clause (b) of Article 119 of the Act, the limitation expires on the expiry of the 30 days of the service of that notice for an application for setting aside of the award. The importance of the matter, which need be emphasised, is the service of the notice by the Court."
17. The Supreme Court in Secretary to Government of Karnataka v. Harishbabu, referred to above observed :
"In view of the settled law and our discussion above, our answer to the question posed in the opening part of the judgment is that the period of limitation for filing objections seeking the setting aside of an arbitration award commences from the date of service of the notice issued by the Court upon the parties regarding the filing of the award under Section 14(2) of the Act. Such a notice need not be in willing but what is essential is that the 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 concerned. Date of service of a notice issued by the arbitrator under Section 14(1) of the Act or the date of obtaining an endorsement of the award by the arbitrator from the party concerned is irrelevant for determining the question of limitation for filing objections under Article 119 (b) of the Limitation Act, 1963."
18. In the above case before the Supreme Court the arbitrator had filed the original award along with various documents in the Court on 24.6.1993 after securing an endorsement from the Government Pleader to the effect "seen subject to objections'. On 13.7.1993 the respondent filed a memo seeking final disposal of the petition filed under Sections 14/17 of the Act and the notice of the said memo was served on the Additional Government Pleader who was present in the Court on behalf of the State and he was directed to file objection, if any, by 31.7.1993. The record also showed that no communication or information at any point of time except on 13th July. 1993 was given to the Additional Government Pleader by the Court regarding filing of the award by the arbitrator. The Supreme Court observed that from the aforesaid facts, it unmistakably follows that no notice, whether in writing or orally, was ever issued by the Court to the appellant regarding the filing of the award in the Court so as to enable it to file objection, if any, seeking the setting aside of the award. Notice of the petitioner filed by the respondent under Section 14/17 of the Act for final decision of the petition cannot be construed as a notice of the filing of the award. It was further observed that the filing of the copy of the signed award along with the petition should be deemed to be a notice issued by the Court under Section 14(2) of the Act. The Supreme Court allowed the appeal and after setting aside the order passed by the trial court and High Court remanded the case for fresh disposal in accordance with law after taking consideration the objection to be filed by the appellant seeking setting aside of the award.
19. The learned counsel for the Opposite party contended that the revisionist's counsel had appended his signature on the order sheet on 23.11.1998 which indicates that the counsel had knowledge about filing of the award. He contended that the signature on the order sheet raises a presumption that the counsel had read the order dated 13.1.1998 which has recorded the filing of the award. The learned counsel contended that in view of the decision of the Supreme Court, there was no necessity of issuing a formal notice contemplated by Section 14(2) of the Arbitration Act and, therefore, the revisionist should have filed objection within 30 days from 23.11.1998.
20. He referred to the following observation made by the Supreme Court In Secretary to Government of Karnataka and another v. V. Harishbabu. (supra):
"In a case where a party has knowledge aliunde of the filing of the award and seeks time to file objections to the award, absence of a formal notice from the Court would be rendered immaterial and in such a case the date when the party enters its appearance and either through an application in writing or orally sleets time to file objections to the award, shall be deemed to be the date of service of the notice within the meaning of sub-section (b) of Section 119 of the Limitation Act read with Section 14(2) of the Act."
21. The learned counsel for the revisionist contended that the senior standing counsel of the revisionist Development Authority was appearing in a number of such cases and, therefore, his signature on the order-sheet is not indicative of his knowledge of the factum of filing of award and only knowledge of date fixed can be inferred. The Manager of the opposite party in his affidavit has stated on the basis of perusal of record that the counsel had knowledge about the filing of award but no document has been filed to support his averment in para 27 of the counter-affidavit.
22. The learned counsel referred to subsequent observation made by the Supreme Court in above case and contended that knowledge of the revisionist's counsel could not be presumed under the circumstances ; more so the revisionist had not sought any time to file objection to the award. The Supreme Court observed "however, where the order of the Court merely records the presence of the parties or their counsel, after an award is filed by the arbitrator in the Court but does not Indicate that the notice of the filing of the award has been given to the parties no service of notice can be presumed from that order".
23. The learned counsel for the revisionist contended that mere filing of an award in the Court is not sufficient and unless a party has knowledge of the filing of the award or unless a notice is given to the party intimating the filing of the award the party is not required to file objection within 30 days as envisaged by Article 119 of the Limitation Act. The learned counsel contended that signature of the counsel on the order-sheet can utmost be equated to the presence of counsel which is not sufficient for presuming service of notice under Section 14(2) of the Arbitration Act.
24. On consideration of the entire facts and circumstances and submissions made by the learned counsel for the parties, 1 am of the view that there is nothing on record to indicate that the notice of filing award has been given to the revisionist and, therefore, no service of notice can be presumed. Moreover. there is nothing on the record to indicate that any notice was given after the arbitrator had filed the record including the deposition and documents on 28.11.1998. Subsection (2) of Section 14 of Arbitration Act requires the Court to give notice to the parties of the filing of the award after the award along with depositions and documents is filed in the Court. This is an additional ground on which service of notice envisaged by Section 14(2) of the Arbitration Act cannot be presumed.
25. Even if the filing of the application by the opposite party to make the award rule of the Court is considered as notice under Section 14(2) of the Act it may not empower the Court to make the award rule of the Court on 25.2.1999 as the thirty days' period for filing objection against the award had not expired. The trial court committed Jurisdictional error in making the award rule of the Court without notice as envisaged by Section 14(2) of the Act and the order if allowed to continue would cause irreparable injury and serious prejudice to the revisionist.
26. The revision is allowed. The Impugned order is set aside. The revisionist may file objection within 30 days from today. The trial court is directed to consider the objection, if any, filed against the award and decide the case in accordance with law.