Civil Appeal No 1980 of 1970
From the Judgment and order dated 161169 of the High Court of Punjab  Haryana in FAO No 12062
Mrs Urmila Kapur and SK Bagga for the Appellant
The Judgment of the Court was delivered by MISRA  J
Hardyal  the respondent  entered into a contract with the State of Punjab  Public Works Department Buildings and Roads Branch for the construction of certain bridges and culverts on the Mukerian Naushehra Road
The agreement between the parties was evidenced by a writing
The written agreement contained an arbitration clause which provided that dispute  if any  between the parties would be referred to the Superintending Engineer Public Works Department Buildings and Roads  Jullundur Circle
It 11 appears that no period was fixed in the agreement of reference for giving the award and therefore Period of four months as prescribed 652 in clause 3 of the First Schedule attached to the would be the statutory period for giving the award
Some dispute did arise between the parties
The respondent  therefore  sent a notice on January 7 1960 to the Superintending Engineer requesting him to accept his claim to the tune of Rs 7568 and give his award accordingly
The respondent claimed this amount of compensation broadly on two counts 1 that the sub Divisional Officer had got certain bridges demolished which according to the respondent had been constructed strictly in terms of the agreement  and 2 that the respondent had also been directed to stop the work
The arbitrator gave his award against the respondent on April 28  1961  but after the expiry of the prescribed period
It is  how ever admitted by the respondent that he participated in the proceedings before the arbitrator even after the expiry of the statutory period
The respondent challenged the award by filing an objection under section 30 of the on a number of grounds
On the pleas taken by the respondent the Senior Sub Judge framed the following four issues I whether the objections were premature  2 whether the arbitrator had misconducted himself or the proceedings  3 whether the award was against natural justice  and 4 whether the award was made after inordinate delay
The learned Judge overruled all the objections and upheld the award
Issue No l Was not pressed before him
The contention of the respondent that reasonable opportunity had not been afforded to him to adduce evidence  by the arbitrator  was also repelled by the learned Judge
He observed One of the grounds taken up for setting aside the award as stated in the application was that the petitioner was not afforded a reasonable opportunity to adduce evidence
But the record of the proceedings dated 24th of April  1961 shows that the parties did not want to say any thing further and the hearing of the case was  therefore closed under such circumstances
 The plea regarding misconduct on the part of the arbitrator was also overruled and dealing with this point the learned Judge observed 653 Nothing has been POINTED out to me in the court during the course of the arguments as to how the arbitrator has misconducted himself and the proceedings
 The plea regarding delay in giving the award was rejected on the ground that the respondent had been participating in the proceedings before the arbitrator even after the expiry of the prescribed period of limitation
The respondent took the matter in appeal to the High Court
When the matter came up before a learned Single Judge he referred the following two points for decision by a Division Bench on account of the importance of the question involved in the case and also on account of conflict of judicial opinion on the point 1
Whether the award given after the expiry of the prescribed period without extension of time by the court was invalid  2
Whether the rejection of the objection regarding delay in giving the award on the ground that the objector had participated in the arbitration proceedings even after the expiry of the period of limitation prescribed would by necessary implication amount to extending the time under section 28 of the by the Court  The Division Bench allowed the objection of the respondent regarding delay in giving the award holding that a party to an arbitration agreement is not estopped from challenging the award on the ground of delay merely because it has participated in the arbitration proceedings even after the expiry of the prescribed period without any demur
On the second point the High Court held that mere dismissal of the objection regarding delay in the award does not amount to extension of time by the court under section 281 of the and indeed time can be extended by the Court by the exercise of sound judicial discretion
Accordingly the appeal was allowed  the order of the Senior Sub Judge was set aside and the case was sent back to the trial court for deciding afresh whether it was a fit case for condoning the delay in giving the award by the arbitrator after affording opportunity to the parties to adduce evidence 654 The State has now come up in appeal on a certificate granted by the High Court under article 1331c of the Constitution  as it then stood
The same points have been reiterated before this Court
Before dealing with the points involved it will be convenient to refer to the relevant provisions of the 
Section 3 reads 3
An arbitration agreement  unless a different intention is expressed therein  shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference
 Section 28 reads 28
1 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 the time for making the award
2 Any provision in an arbitration agreement whereby the arbitrators or umpire may  except with the consent of all the parties to the agreement  enlarge the time for making the award  shall be void and of no effect
 Clause 3 of First schedule provides 3
The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the court may allow
 A perusal of these provisions indicates that it is open to the parties to an arbitration agreement to fix the time within which the arbitrator must give award  but it has to be so stated in the agreement itself
If per chance no time has been specified by the parties in the arbitration agreement
then by virtue of operation of section 3 read with cl 3 of the First Schedule the award must be given within four months of the arbitrator entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the court may allow
655 Sub section I of section 28 is very wide and confers full discretion on the court to enlarge time for making the award at any time
The discretion under sub section
I of section 28 should  however  be exercised judiciously
Sub section 2 of section 28 also makes it evident that the court alone has the power to extend time
It further provides that a clause in the arbitration agreement giving the arbitrator power to enlarge time shall be void and of no effect except when all the parties consent to such enlargement
It is not open to arbitrators at their own pleasure without consent of the parties to the agreement to enlarge time for making the award
In HK Wattal vs VN Pandya1 dealing with section 281 of the this Court observed There is no doubt that the arbitrator is expected to make his award within four months of his entering on the reference or on his being called upon to act or within such extended time as the court may allow
Reading clause 3 of the Schedule along with section 28 one finds that the power to enlarge the time is vested in the court and not in the arbitrator
Clause 3 and section 281 exclude by necessary implication the power of the arbitrator to enlarge the time
This is emphasised by section 282 which provides that even when such a provision giving the arbitrator power to enlarge the time is contained in the agreement  that pro vision shall be void and of no effect  The headnote of section 28 brings out the force of this position in law by providing that the power is of the court only to enlarge time for making the award
Sub section 2 of section 28  however  indicates one exception to the above rule that the arbitrator cannot enlarge the time  and that is when the parties agree to such an enlargement
The occasion for the arbitrator to enlarge the time occurs only after he is called upon to proceed with the arbitration or he enters upon the reference
Hence it is clear that if the parties agree to the enlargement of time after the arbitrator has entered on the reference  the arbitrator has the power to enlarge it in accordance with the mutual agreement or consent of the parties
That such a consent must be a post reference consent  is also clear from section 282 which renders null and void a provision l  656 in the original agreement to that effect
In a sense where a provision is made in the original agreement that the arbitrator may enlarge the time  such a provision always implies mutual consent for enlargement but such mutual consent initially expressed in the original agreement does not save the provision from being void
It is  therefore clear that the arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on then arbitration the parties to the arbitration agreement consent to such enlargement of time
The next question that crops up for consideration is what will be the effect if a party to the arbitration took part in the proceedings before the arbitrator even after the expiry of four months  that is  the period prescribed for giving the award
Some High Courts have taken the view that in such a situation the condition of four months period will be deemed to have been waived
Such a view has been taken by the Allahabad High Court in Shambhu Nath vs Surja Devi1 A learned Single Judge of that High Court observed A party to an arbitration agreement who voluntarily takes part in the arbitration proceedings after the expiry of four months will be deem  d to have waived the implied condition as to time A similar view has been taken by the Madhya Pradesh High Court in Shivlal vs Union of India2
In Ganesh Chandra vs Artatrana3 a single Judge of the Orissa High Court observed If the parties  after the expiry of four months submit themselves to the jurisdiction of the arbitrators and take part in the proceedings enabling them to pass an award  it cannot be said that the arbitrators acted without jurisdiction
In such a contingency  the principle of waiver and estoppel would have full application
Once we hold that the law precludes parties from extending time after the matter has been referred to the arbitrator  it will be 1 AIR 1961 All 180
2 AIR 1975 MP 40
3 AIR 1965 Orissa 17
657 contradiction in terms to hold that the same result can be brought about by the conduct of the parties
The age long established principle is that there can be no estoppel against a statute
It is true that the time to be fixed for making the award was initially one of agreement between the parties but it does not follow that in the face of a clear prohibition by law that the time fixed under cl 3 of the Schedule can only be extended by the court and not by the 1 parties at any stage  it still remains a matter of agreement and the rule of estoppel operates
It need be hardly emphasized that the Act has injuncted the arbitrator to give an award within the prescribed period of four months unless the same is extended by the court
The arbitrator has no jurisdiction to make an award after the fixed time
If the award made beyond the time is invalid the parties are not estopped by their conduct from challenging the award on the ground that it was made beyond time merely because of their having participated in the proceedings before the arbitrator after the expiry of the prescribed period
The policy of law seems to be that the arbitration proceedings should not be unduly prolonged
The arbitrator therefore has to give the award within the time prescribed or such extended time as the court concerned may in its discretion extend and the court along has been given the power to extend time for giving the award
As II observed earlier  the court has got the power to extend time even after the award has been given or after the expiry of the period prescribed for the award
But the court has to exercise its discretion in a judicial manner
The High Court in our opinion was justified in taking the view that it did
This power  however  can be exercised even by the appellate court
The present appeal has remained pending in this Court since 1970
No useful purpose will be served in remanding the case to the trial court for deciding whether the time should be enlarged in the circumstances of this case
In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur this will be a fit case  in our opinion  for the extension of time
We accordingly extend the time for giving the award and the award will be deemed to have been given in time
The other questions involved in the case
however  have not been dealt with by the High Court and it rest content by making a 658 bald observation that there is no other point to be decided in this appeal
The objector respondent had raised a number of pleas fore challenge the award giving rise to four issues
It was  therefore  obligatory for the High Court to consider those points unless they had been given up by the objector respondent
There is nothing on the record to suggest that the respondent had given up those grounds
The case will  therefore  have to be sent back to the High Court for deciding the other issues involved in this case
We accordingly allow the appeal in part and set aside that part of the order by which the High Court remanded the case to the trial court for deciding whether time should be extended
The case is sent back to the High Court for deciding other issues involved
In the circumstances of the case the parties shall bear their own costs
APJ Appeal allowed


Summary:
By a written agreement  the respondent agreed to construct bridges and culverts for State Government
The agreement contained an arbitration clause  the Arbitrator being the Superannuation intending Engineer
However  no period was fixed for giving the And 
therefore  the statutory period of four months for giving the award prescribed in clause 3 of the First Schedule to the was applicable
A dispute arose between the parties
The respondent sent a notice to the Arbitrator requesting him to accept his claim and give his award
The respondent claimed compensation on two counts  namely  I that the Sub Divisional Officer got certain bridges demolished which had been construed strictly in terms of the agreement  and 2 that the respondent had also been directed to stop the work
The Arbitrator gave his award against the respondent after the expiry of the prescribed period  the respondent having participated period  in the proceedings before the Arbitrator even after the expiry of the statutory period
The respondent challenged the award but the trial Court overruled the objection and upheld the award
On appeal to the High Court  a Single Judge referred two points for decision by a Division Bench  l Whether the award given after the expiry of the prescribed period without extension of time by the Court was invalid  and 2 Whether the participation in the arbitration proceedings even after the 650 expiry of the period of limitation prescribed would by necessary implication amount to extending the time under section 28 of the by the Court  The Division Bench allowed the objection of the respondent regarding delay in giving the award  holding that a party to an arbitration agreement is not estopped from challenging the award of the ground of delay merely because it had participated in the arbitration proceedings even after the expiry of the prescribed period without any demur  that mere dismissal of the objection regarding delay in the award does not amount an extension of time by the Court under section 28 l of the  and that time can be extended by the court by the exercise of sound judicial discretion
The appeal was allowed and the case remanded to the trial Court for deciding whether it was a fit case for condoning the delay in giving the award by the Arbitrator
Allowing the Appeal of the State in part  HELD l
The provisions of sections 3 and 28 1 and 2 and clause 3 of First Schedule to the Act indicate that it is open to the parties to an arbitration agreement to fix the time within which the Arbitrator must give his award but it has to be so stated in the agreement itself
If per chance no time has been specified by the parties in the arbitration agreement  then by virtue of operation of s3 with read clause 3 of the First Schedule the award must be given within four months of the arbitrator entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow
654A B 2
Sub section t of s28 is very wide and confers full discretion on the Court to enlarge time for the award at any time  which should  however  be exercised judiciously
Sub section 2 of section 28 makes it evident that the Court alone has the power to extend time
It further provides that a clause in the arbitration agreement giving the Arbitrator power to enlarge time shall be void and of no effect except when all the parties consent to such enlargement
It is not open to Arbitrators at their own pleasure without the consent of parties to the agreement to enlarge the for making the award655 A B HK Wattal v VN Pandya   followed
3 Once the law precedes parties from extending time after the matter has been referred to the Arbitrator  it will be contradiction to hold that the same result can be brought about by the conduct of the parties
There can be no estoppel against a statute
The time to be fixed for making the award was initially one of agreement between the parties but it does not follow  that in the face of a clear prohibition by law that the time fixed under clause 3 of the said Schedule can only be extended by the Court and not b y the parties at any stage
It still remains a matter of agreement and the rule of estoppel operates
The Act has injuncted the Arbitrator to give an award with in the prescribed 651 period of four months unless the same is extended by the Court
The Arbitrator has no jurisdiction to make an award after the fixed time
If the award made beyond the time is invalid the parties are not estopped by their conduct from challenging the award on the ground that it was made beyond time merely because of their having participated in the proceedings before the Arbitrator after the expiry of the prescribed period
656H 657 A C Shambbu Nath v Surja Devi  AIR 1961 All 180 Shivlal vs Union of India AIR 1975 MP40 and Ganesh Chandra vs Artatrana AIR 1965 Orissa 17 over ruled
The policy of law seems to be that the arbitration proceedings should not be unduly prolonged
The Arbitrator therefore  has to give the award within time prescribed or such extended time as the  Court concerned may in its discretion extend and the Court alone has been given the power to extend time for giving the award
The Court has got the power to extended time even after the award has been given or after the expiry of the period prescribed for the award
But the Court has to exercise its discretion in a judicial manner
In the instant case  the High Court was justified in taking the view that it did
This power can be exercised even by the appellants court
In view of the policy of law and in view of the fact that the parties have been taking willing part in the proceedings before the Arbitrator without a demur  this will be a fit case for the extension of time
the time for giving the award is extended and the award will be deemed to have been given in time The case is however  remanded to the High Court for decision on the other issued involved
657 E G 658