HARI SHANKAR, LAL versus SHAMBHUNATH PRASAD AND OTHERS

Moy,'·

·HAR! SE;ANKAB, LAL

SHAMBHUNATH PRASAD AND OTHERS

(B:P. SINHA, C.J., K. l;\uBBA R . .\o, RAGRUllAR DAYAL and ,T. R. MuDROLKAR, JJ.)

Arbitration-Rcfcre.nce-l:{ofice in tvriting by party to arbi-tration to act-Tim.q within u;hich aniarrl must be 1nade-Arbitra· tion Act, 19f0 (16 of 194~), l'ir•t Scfiedu!e r. 3.

The appe)lant, the respondents land -2 and their·mother re-ferred their dispute to arbitration by registered agreement. Within 10 d,ays;thereof the arbitrators entered on the rJ>ference. After. about year \he mother of the parties died ~nd the arbitrators 'did not proceed with the enquiry. About year thereafter the appellant gave notict; to the arUitrators request· ing them to proce"ed with the refrrence and give their award. The arbitrators made an award. The appellant filed an ,applica-tion iti the Court prayipg for filing of the award and making. it rule of the coutt. The 1cspondents I and 2 as defendants raised objections, one of \vhich was that the award v.·as not given 'within the time prescribed by law. The Civil Judge rejected· the objections and made decree. On appeal the High "Court found that the award was made after the limitation period and set aside the decree of the Civil Judge and dis-missed the suit.

Appellant's case was that r.3 of First Schedule to the Arbitration Act provided for alternative periods for arbitrators to make their award. Under second alternative an award could be made withia 4 months from date of notice to arbitra-tors to act and hence award was \vithin tim~. ~

The question \Vas whether the notice to act if given subsequent to the arbitrators entering on reference, the period should be computed from the former date or from the latter date.

Held, (per Sinha, C. J., Subba Rao and Mu~holl~•ir, JJ.), that r. 3 of the First Schedulp to the Arb1trat10n Act, 1940, is mandatory, the object being to prescribe time limit in the interest of expeditious disp?sal of arbitratioi; proce-edin~s. It imposes duty on the arbitrators to make their award within one or other of the three alternative, periods mentioned therein. The party can only ask the arbitraior to actjfhe is legally bound t\) act under the reference. A·Ifotice to act can

only be given when an· arbitrator is not acting i.e. he has rcfu. sed or negl,ected to discharge his duty.

The worc\s u.enterRon the reference" occurring in r. 3 of First Sch·edule are not synonymous with the words ''to actu. The words· "to act" is more con1prehensive and 6f ~ wider import thcin the words ''to enter on the ·reference.. u

notice to act may be given before or after the arliit· rators enter~d upon tht reference. If notice to act is given before they entered upon the reference, ·the four months would be computed from the date they entered· upon the reference. If party gives notice t9 act within A- months after: the arb{. trators entered upon the reference, the arbitrardrs ca.n make an award \Vithin 4 months from the date of such notice. And jn that event,_ after the expiry of the sai~ 4 moD.th~ the arbitrators become functus ojficio unless the period is extended by .court under s. 28 of the Act; such period np y also be ex tended by the court, thongh the a\vard ha~ hecn faL:tualJy inadd, other-wise 'the document rlescribeci as an nward \voulcl be treate1d as non e.st.' Per Raghnbar Daynl,.J.-The J?~riod of 4'months under T.[1]'3 Of First Schedule is to rfln fron1· the date of arbiti-ator entering on the reference~or from the .date oI) which .atbitrator is called upon to act bY..nn~ice in '\vriting from a:ny part)>. If arbitrator has entered on reference, ~er.iod of 4 months begiri's to run from the q~i:e of entering "On .. 1"efei:ence. Any hoticC subsequently given calling upon to act v..Jill not rr!ake the period of 4 months start afresh and suc-h notice is nor cOnrempiatecf by r. 3 and it 'vould be ineffective. .It is not necessary to .consider whether the notice servec.l after expiry of 4 months is good notice or nQt. But in yie\v of s .. : 28 of the Act, So long as the power vested in the arhiYratnrs to tjeyi<le the dispt\te is not \v'ithdrawn, they continue to be cb1npCtent to acf 6n expecta-tion that period for I'l:laking a\vard \VOuld be extended by cotti't. Arbitrators ~'<!nter on ·a reference as ~oon as they. accept, their appointment and con1::-aunicafe to .each other about the reference. This is earlier than starting the proceedings. Callirig upon arbitrators to act include.:; asking them to enter on the reference or to ao anything in connection with reference excePt asking them to do the routine acts.

. ln the present case arbitrators made rhe 1award \l'hen the arbi~rators ha<l no jurisdiction', it having been' made 'afier the expiry of 4 rr1onths from their enre__ring 6n the reference.

Crvn, APPELLATE J.URI;DICTION : CiyiJ A:epea,l No. 219 of 1958.

ari Shankar Lal v. Shambhunath Pra1ad

ari Bhiinkar Lal v. Shambhunalh Prasod

SubbaRaoJ.

Appeal from the judgment and decree dated January 5, 1954 of the Allahabad High Court, in First Appeal from Order No. 353 of 1953.

S. K. Kapur and Ganp1t Rai, for the appellant.

A. N. Goyal, for respondents Nos. 1-2.

1961. May 4, The Judgments of the Court were delivered by

SUBBA RAO, .J.-This appeal by certificate

raises question of construction of r. 3 of the First Schedule to the Arbitration Act, 1940 (10 of 1940) (hereinafter referred to as the Act).

The facts material to the question raised may be briefly stated. The appellant and respondents I and 2 are brothers. On August 17, 1948, the appellant and respondents 1 and 2 and their mother by registered deed of agreement referred their dispute regarding the partition of two houses in the city of Banaras to two arbitrators, respondents 3 and 4. Within 10 days of the reference, the said arbitrators gave notice to the parties and began to take evidence i.e., they entered on the reference. On July 25, 1949, Rajwanti, the mother of the appellant and respondents 1 and 2 died, and the arbitrators did not proceed with the. inquiry. On August 31, 1950, i.e., more ;than one year after the death of Rajwanti, the appellant gave notice to the arbitrators requesting them to proceed with the reference and give the award at an early date. On October 1, 1950, i.e., within 4 months from the date of the notice, the arbitrators made an award and it was duly registered. On January 23, 1951, the appellant filed an application under ss. 14(2) and 17 of the Act in the Court of the Civil Judge, Bana-ras, praying that the said award be filed and be made rule of the court. The said application was registered as suit ; the appellant was placed in the position of plaintiff and the respondents. in that of defendants. The respondents raised vari-ous objections to the said application ; one of the objections, with which only we are now C)oneerned,

was that the award was not given within the time fixed by law. The learned Civil Jud~e rejected the objections and made decree ln terms of the award. On appeal, the High Court came to the conclusion that the award was made after tbe expiry of the period of limitation, and on that finding set aside the decree of the• learned Civil Judge and dismissed the suit with costs. Hence this appeal.

Learned counsel for the appellant contends

that r. 3 of the First Schedule. to the Act provides for alternative periods within which arbitrators have to make their award, that under the second alternative an award could be made within 4 months from the date of not!ce issued by party calling upon the arbitrators to act, and that, as in the present case the notice to act was given by the appellant to the arbitrators on August 31, 1950, the award made by them on October 3, :t950, was within the time prescribed.

'l'he answer to the questiOn raised turns upon the true meaning of the provisions ofr. 3 of the First Schedule to the Act. It will be convenient at the outset to read the relevant provisions of the Act.

Section 3 of the Act reads :

"An arbitration a.greement, unless diff-erent intention is expressed therein, shall be deemed to include the provisions set out in First Schedule in so far as they are appli-cable to the reference."

Rule 3 of the First Schedule to the Act is as

follows :

"The arbitrators shall make their award within four months after entering on the re-ference or after having been called upon to act by notice in writing from any party to the

HariSkaril:cir Lal v. Shambhunath PN>aa<I

Subba Rao J.

l!JGl

Hll!ri ShankM Lal v. Shamhkunath Piasad

Subba Rao J.

arbitration agreement or within such exten· ded time as the Court may allow."

Section 28 says:

"(l) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time tho time for making the award."

Section 3 of the Act makes the period prescribed in the First Schedule for making an award term of the arbitration agreement. Rule 3 of the First Schedule to the Act is couched in mandatory form and it imposes duty on the arbitrators to make their award within one or other of the three alter-native periods mentioned therein. The first con-struction suggested by learned counsel for respon. dents is that the words "entering on the reference" in the first clause of the rule and the words "to aut" in the second clause thereof are synonymous and they mean the same thing. This would make the second alternative unnecessary in many cases, for if the words "to act" means "to enter on the reference" there is no need for fixing two separate periods; for, on that construction, notice would always precede the act of entering on the reference and, therefore, the first alternative would serve the purpose. On that construction, the only pur-pose it serves is that party may forct:: the pace by calling upon the arbitrators, who are delaying to enter on the referen•:e, to aot expeditiously. If the Legislature intended to give such limited scope to the said rule, it would not have used two different sets of words in the two alternatfre clauses and difforent starting points for cornµuting the period of four month~. The word "acL" i;; certain-lv more comprehensive than the' words "cmter on the reforence.'' The distinction between the said two sets of words has been brought out with clarity in Baring-Gould v. Sharpington Combined Pick

2 S.C.R. SUPREME COURT REPOR,TS

and Shoi·el Syndicate('). There, on January 11, 1898, one of the parties served on the arbitrators notice in writing addressed to both the arbitra-torn requiring them to appoint an umpire ; on J<'ebruary 15, 1898, the arbitrators appointed an umpire ; the arbitrators did not make any award but on April :JO, 1898, the umpire madf• hii< award; it was contendwl that by the notice requiring the arbitrators to appoint an umpin;_. 1.hey had not been "called on to act" within the meaning of Schedule I (c), to tht' Arbitration Act, 1889, and consequently the three months within which the arbitrators were required by that clause to make their award had not expirnd, and the jurisdiction of the umpire had not arisen and his award was invalid. In that context it became necessary to decide what the words " called on to act" mean and whether they were synonymous with tho words "called on to enter on the reference." Lindley, M.R., adverting to that contention observed at p. 91:

"The three months are to run first "after entering on the reference" ; and then in the alternative, after "having been called on to act" ............ If they are 'called on to act' as arbitratorn, it must mean that they are called on to do an act as arbitrators. It appears to me that these arbitrators were 'ca.Jled on to act' by the notice to appoint an umpire ; and there was very good reason for making the period of three months run from that time.· If the arbitrators do ndt 'enter on the reference', and they >1re 'called on to act', it is an intimation to them that they are called on to do the work. I can '.10t agree with Stirling .J. that 'called on to act' means 'called upon t(, enter on the reference'. Being called on to do anything as an arbitrator is being called on to act. That the appointing of an umpire is an act done by the arbitrators as arbitrators is obvious. To (I) (1899) 2 Ch. D. BO.

Hari ShankrJr Lal v. Sh ambh.1111.atlt Pra•wi

Stcbba Rao J.

Bari 'Sha11kar !Jal v. Sftambhr,,Mth · Pratad SubbaRaaJ.

726 SUPREID] COURT REPORTS [1962]

do that which they could only do in the character ?f arbitrators is, in my judgment, clearly with-m the words, and I think it is within the sense of the expression used in clause (c)."

No doubt in the above case, unlike in the

present case, the arbitrators were called on to act before they entered on the reference ; but that cannot make any difference in the application of the principle, namely that "to act" is not the same as " to enter on the reference", and that the former is ofa wider import than the latter. The Allaha-b,1d High Court, in Sarda,r Mal Hardat Rai v. Shea Bakhsh Rai Sri Narain1[1]), had to consider the scope of r. 3 of the First Schedule to the Act in different context. There, on January 14-, 1919, dispute had been referred to arbitrators; the award was made on August 23, 1919 ; it was con-tended that the award had not been made within three months after the arbitrators entered on the reference, nor was it made within three months after having been called upon to act by notice in writing by one of the parties to the submission. Piggott and Walsh, JJ., held that the two clauses were alternative in the sense that when no refer-ence was entered upon at all then the time ran from the notice calling upon the arbitrators to act, and that if they had entered on the reference, they had three months from that moment for making their award. In that case, the notice to act was given before the arbitrators entered upon the reference, and as the award was made within the prescribed time from the date of entering upon the reference, though beyond the prescribed time from the notice asking the arbitrators to act, they held that the award was within time on the basis of the second alternative. In neither of tho two cases the question that now falls to be con-sidered had directly arisen, namely, whether, if the notice to act was given subsequent to the arbitrators entering on the referenc<:, the period (I) ( 1922) I.L.R. 44 All. 432.

should be computed from the former date or from the latter date. That question arises in this case.

The said discussion leads us to th!( conclu-sion that though entering on the reference is an act of the arbitrators, that is not exhaustive of the content of the word "act" in the second alter-native.

But this wide construction, without limita-tion would defeat the purpose of r.!l. The object of the rule is to prescribe time limit in the inter-est of expeditious disposal of arbitration proceed-ings. If under the second alternative notice to act can be given at any time, it would enable one of the parties to enlarge the period of time pres-cribed indefinitely: not only the time limit pre-scribed would become meaningless but one of the parties could 8.lso, without the consent of the other, resuscitate dead or stale reference. This could not have been the intention of the Legisla-ture and, therefore, reasonable construction should be placed upon the provision. Such limitation on the right of party to reopen an abandoned reference is implicit in the words "to act". party can ask the arbitrator to act if he is legally bound to act under the reference. If after the expiry of four months from the date of entering on the reference an arbitrPtor can no longer act, notice given theriiafter cannot ask him to act. Realizing this difficulty, learned counsel for the respondents suggests that an arbitrator can act even after four months, though the award cannot be filed without getting an extension of time from the court. But the rele-vant provisions do not support this contention.

The third alternative in r. 3 shows that an award can be made within the extended time allowed by the Court. Section 28 of the Act en-ables the court to extend the time for the making of the award; extension of time may be given even after

Ilari Shankar Lal v. Shambhunath Pra8ad Su5ba RaoJ,

Hari Shankar Lal v. Shambltuna!h Prasad Subba Rao J.

the award has been factually made. So till the time is extended an award cannot be made, though, when extended, the award factually made may be treated as an award made within the time so extended. To put it differently, if time was not extended by court, the document described as an award would be treated as non est. In this view, the second alternative in r. 3 can be invoked only in case where notice to act has been given to the arbitrators either before the arbitra-tors entered on the reference or after they have entered on the reference but before the period of four months from that date has run out,

It is said that this construction also may start off chain of notices which may lead to the same result sought to be avoided by it. The argument is that if one of the parties gives notice to act, it gives the arbitrators 4 months from that date to act and if before the expiry of the 4 months from that date of notice another notict is given, they will get another lease of life and so on indefinitely. Though there is some plausibility in the criticism, it is answered by our confining the right to give notice by party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving fresh period of 4 months, has any basis. notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty Therefore, every notice cannot give fresh pericd unless in fact the arbitrators refused or neglrcted to act before such notice is given. The legal position may be formulated thus : (a) notice to act may be given before or after the arbitrators entered upon the reference, (b) if notice to act is given before they entered upon the refer-ence, the four months would be computed from

the date they entered upon the reference, (c) if party gives notice to act within 4 months after the arbitrators entered upon the reference, the arbitra-tors can make an award within 4 months from the date of such notice, and (d) in that event, after the expiry of the said 4 months the arbitrators become functus officio, unless the period is exten-ded by court under s. 28 of the act ; such period may also be extended by the court, though the award has been factually made.

In the present case, the notice was given

long after the expiry of four months from the date when the arbitrators entered on the refer-ence and, therefore, they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the court for extension of time under s. 28 of the Act. We, therefore, agree with the conclu-sion arrived at by the High Court, though on different grounds.

In the result, the appeal fails and is dismissed with costs.

DAYAL, J.-r agree with the

RAGHUBAR DAYAL, J.-r agree with the order proposed, but for different reasons, which I now state.

The period of four months under r. 3 of the

First Schedule to the Arbitration Act is to run from the date of the arbitrators entering on the reference or from the date on which they have been called upon to act by notice in writing from any party to the arbitration agreement. If the arbitrators have entered .upon the refe-rence, the period of four months begins to run from the date they entered on the reference. Any notice subsequently given to them calling upon them to act will not make the period of four months start afresh from the date of the service of the notice. Such notice would be ineffective for the purposes of dett1rmining the

ari S hanka r Lal v. Shambhunath Prasad Subba Rao J.

Raghubat Dayal,J.

Hari Shankar Lal V,

- JShambl.unath Praoad

RaGhular Ea~al J.

period of four months within which the arbit-rators had to make the award. In fact, there would be no valid occasion for giving such notice subsequent to the arbitrators entering on the reference. Parties cannot prompt them fo1· con-ducting their enquiry or taking steps in connec-tion with the enquiry. Even if they do, in case the arbitrators were lethargic, such notico is not contemplated by r. 3 of the First Sche-dule.

case may possibly arise when an arbitra-tor, by his conduct, indicates that he refuses to act ,and that it becomes necessary for party to give notice to the other arbitrator to appoint another person arbitrator in his place. The appointment of arbitrators, would be complete after the fresh arbit-rator has been appointed. The proceedings taken previously would have come to an end as infruc-tuous. The period of four months, therefore, would start in accordance with the provisions of r. 3 of the First Schedule and not from the date on which any party had called upon the remaining arbitrators t.o appoint an arbitrator in the place of one who had refused to act. Sections 8 and 9 of the Arbitration Act provide for the appointmE>nt of an arbitrator by the Court in place of such defaulting arbitrator.

The view that the fresh period of limitation will begin to start from the date of the notice if it be served within the period of four months whioh had begun to run from the date on which the arbi-trators entered on the reference, would mean that any of the parties will be able to extend the period by just giving notice, to the arbitrators within the original period of four months. Such en effect of unilateral notice could not have been intended by the Legislature. If one can extend the time-the original period of four monthc-by giving notice within that period, t.here is no reason "hy another fresh period of four months should not start by the giving of second notice to the arbitrate rs to act,

before the expiry of the period extended by the first notice. If this he possible, the period for making the award can be extended without any limit by any of the parties. This is what must have been in the mind of Lindley, M. R., in Baring-Gould' 8 Case(') when he said:

"The arbitrators have three months with-

in which to make their award, and the umpire has another month after the expiration of those three months. Every one agrees, al-though the enactment does not expres8ly say so, that the time from which the three m'onths are to be reckoned is the first of the two periods mentioned, and not the last. If it were the last, the proceedings might be very unreasonably postponed."

The enactment under consideration there, is to be found quoted at the bottom of page 86 and, but for the period of three months instead of four months, is in identioal terms with those of r. 3 of the First Schedule.

In the present case, the arbitrators did enter

on the ~eference by the end of August, 1948, and therefore the award made on Octoher 3, 1950 was made beyond the period of four months of the arbitrators' entering on the reference, and was therefore made when the arbitrators had no juris-diction to make it.

In this view, it is not necessary to consider whether the notice to act, served after the period of four months had expired, is good notice or not, or whether the arbitrators are competent to act in expectation of getting the time extended by the Court or not. I am, however, inclined to the view that in view of the provisions of s. 28, it is not possible to say that the arbitrators are not competent to act after the expiry of the period of f01tr months from tlte date of their entering on the reference. The provi-sions of this section contemplate the arbitrators (1) (1899) 2 Ch, D. BO, 91.

Haii Shanka•· Lal v. Sl1ambhunath Pra&ad Ra,ghubar Dayal J.

" Shankar Lal v. Shambhunath Prrwul.

Ragkubar Dayal J.

having made the award beyond the period of limi-tation without having previously obtained the order of the Court extending the time of making the award. This implies that the arbitrators would have carried on their proceedings and would have made the award subsequent to the expiry of the period during which they should have made the award. The competency of the arbitrators to act in pursuance of the reference arises out of the refe-rence made by the parties and is not dependent on the period during which they ought to make the award. So long as the power vested in them to decide the dispute between the parties is not with-drawn, they continue to be competent to act on the reference in expectation that the period for making the award would be extended by the Court.

I also do not consider it necessary to decide

in this case as to when arbitrators can be said to enter on the reference or what is meant by 'their being called upon to act' by notice under r. 3 of the First Schedule. I simply note that I agree with the view expressed in lossifoglu v. Ooumantaros (') that arbitrators enter upon reference as soon as they have accepted their appointment and have communicated with each other about the reference. This is stage earlier than their starting the pro-ceedings in the presence of' thP, parties or under some peremptory order compelling them to con-clude the hearing ex parte. '('_,ailing upon the arbi-trators to act' does include asking the arbitrators to enter on the reference but may also include asking them to do anything in connection with the reference except asking them to do the routine acts connected with the enquiry.

Appeal dismissed.

(') 1941) I K.B. 396.