Sachania v Ramji (Civil Case No. 148 of 1933.) [1934] EACA 22 (1 January 1934)

ORIGINAL CIVIL.

Before GAMBLE, Ag. J.

DAMODARDAS WAGHJI SACHANIA (Plaintiff)

$v.$

RAMJI LAXMAN KARGASTHALA (Defendant).

Civil Case No. 148 of 1933.

Arbitration—Article 158, Indian Limitation Act—Limitation.

$Held$ (11-5-34).—That for the purpose of making an objection to an award, time runs from the date the award is submitted to Court. The date of opening the award is immaterial.

Mangat for Plaintiff.

Schwartze for Defendant.

ORDER.—Mr. Mangat is seeking that the umpire's award be remitted to the umpire for completion or in the alternative that the award may be set aside.

Mr. Schwartze contends with regard to the first prayer that Order XLIII Rule 14, which deals with the remission of an award by the Court does not apply and as regards the alternative prayer that it is out of time. I have carefully considered the provisions of Order XLIII, Rule 14 (a), (b) and (c) and am not satisfied that on the facts deponed to in the affidavit this is a fit case for the remission of the award. It is not contended that the award has left any matters undetermined or has gone outside the terms of the submission as specified in sub-section (a). It is not claimed that the award is so indefinite as to be incapable of execution under sub-section $(b)$ . Nor can I find nor is it contended that there is any illegality in the award which is apparent on the face of it.

All the affidavit alleges is; that certain documents and evidence ancillary to the award itself have not been filed with the award. These depositions should in accordance with Rule 10. be filed along with the award. Such an omission might be valid ground for moving under Rule 15 $(1)$ $(a)$ that the award be set aside. I offer no opinion on this at the present stage. I am, however, satisfied that non-conformity with the latter portion of Rule 10, is not ground for remission under Rule 14.

I will now deal with the question whether the alternative part of the prayer to have the award set aside is barred by article 158 of the Indian Limitation Act.

Under that article application to set aside an award must he made within ten days of the date on which the award was submitted to Court. There is ample authority for holding that the Court has no power to extend or vary this period. In this suit the award was filed on 12-4-34 but this application was not made until 1-4-34, prima facie out of time.

An order was made that the envelope containing the award was not to be opened until plaintiff had paid Sh. 1,000 towards the umpire's costs. In my opinion that was not a correct order as the proper procedure to recover such costs is by action. This order also had the effect of suspending indefinitely the opening of the award as there was no sanction behind the order that the plaintiff should pay Sh. 1,000. In other words until the plaintiff should take it into his head to pay Sh. 1,000 the award remained unopened and inoperative. In order that the whole object of the submission to arbitration might not be stultified I had to vary the order of 18-4-34 and the award was in fact opened on $21 - 4 - 34$ .

Mr. Mangat points out that he could not apply to have the award set aside until he was aware of its terms and that as it was not opened until 21-4-34 he should have had ten days from that date in which to object.

There would be more force in this argument were it not for the fact that the non-opening of the award was due to the contumacy of Mr. Mangat's own client. He was ordered to pay Sh. 1,000 umpire's costs and even though this order was irregular, he can hardly be heard to complain now that he was unable to inspect the award. I observe that a precisely similar point was raised by Mr. Mangat in C. C. No. 104/33 when it was held by the present Acting Chief Justice, that the date of opening was immaterial and that time runs from the date the award. was submitted to the Court.

I propose to follow the decision in that case and I amconfirmed in my opinion by a reference to Russell on Arbitrationand Awards, 11th edition, at p.

245.

The application is dismissed with costs.