IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.281 of 2003 Date of Decision: 22.12.2008 ________________________________________________________________ State of H.P. … Petitioner Versus Ram Chander Mahajan … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. R.M.Bisht, Deputy Advocate General. For the Respondents : Mr. Neel Kamal Sharma, Advocate. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order of the learned District Judge, Mandi dated 30.11.2000 whereby he rejected the appeal filed by the State and upheld the order of the learned Senior Sub Judge, Mandi dated 9.10.1996 making the award of the Arbitrator rule of the Court. Since the main point involved in this case is whether the objections to the award were filed by the State within limitation, it is not necessary to give the detailed facts of the case. It would, however, be pertinent to mention that the respondent, hereinafter referred to as the contractor was awarded the work for construction of 20.7 meters span High Level Bridge across Khoti Nallah on Chandigarh-Mandi- 2 Manali road by the petitioner – State of H.P. Disputes arose between the parties and in terms of the arbitration agreement, the disputes were referred to the Superintendent Engineer, Arbitration Circle, HPWD, Solan, for disposal. The arbitrator made his award on 31.7.1995 awarding Rs. 35099/- and future simple interest at the rate of 10% per annum in favour of the contractor. The arbitrator filed the award in the Court of the learned District Judge, Mandi. This matter was taken up by the learned District Judge on 29.9.1995. The Additional District Attorney had put in appearance on behalf of the State and the following order was passed: “ Put up for consideration on 30.9.1995”. On 30.9.1995, the District Attorney was also present on behalf of the State and the following order was passed:- ‘The Arbitrator-cum- Superintendent Engineer (Arbitration) Solan has sent this file to this Court for the ‘rule of this court.’ (sic) . The jurisdiction lies with the learned Senior Sub Judge, Mandi. Therefore, this case is sent to that court for disposal according to law. The learned D.A. is directed to appear before the said court on 10.10.95.” On 10.10.1995, the case was taken up by the learned Senior Sub Judge, Mandi, when the following order was passed in the presence of the Additional District Attorney who appeared on behalf of the State:- 3 “Case received after transfer from the court of ld. District Judge, Mandi. Ahlmad to check, report and register. Put up on 16.11.1995 for consideration.” On 16.11.1995, in the presence of the ADA, the following order was passed : “ Notice to parties be issued for 15.12.1995.” Admittedly, objections to the award were filed by the State on 17.11.1995. The learned trial court held that the these objections were not filed within limitation. Both the courts below have come to the conclusion that since the State was represented by DA/ADA before the District Judge as well as the Senior Sub Judge on 30.9.1995 and 10.10.1995, the State was aware about the filing of the award and, therefore, the objections had to be filed within 30 days i.e. on or before 30.10.1995 or latest by 9.11.1995. Aggrieved by the orders of the courts below, the State had filed a SLP before the Apex Court but the Apex Court held that a civil revision is maintainable against the said order. The SLP was withdrawn with liberty to file the present revision petition. Section 14(2) of the Arbitration Act, 1940 reads as follows:- 4 “ 14. Award to be signed and filed – (1) xx xx xx xx xx (2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement for 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. “ The question as to what would amount to service of notice of filing of the award in terms of the aforesaid section has been considered by the apex Court in Indian Rayon Corporation Ltd. versus. Raunaq and Company Pvt. Ltd. (1988) 4 SCC 3, wherein it was held as follows:- “10. It was, however, submitted on behalf of the appellant that there cannot be any concession on a question of law. We are of the opinion that this concession does not, as such, help the parties very much. 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 that the period of limitation begins and as at present under Cl. (b) of Art. 119 of the Act, the limitation expires on the expiry of the thirty 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. It is not the method of the service that is important or relevant. In this case as both the Courts have, in fact, found that the notice was issued and served and, in our opinion, that finding is based on cogent material and 5 relevant evidence, prior to 30th July, 1981, the application made in this case was clearly barred by lapse of time.” On behalf of the respondent, reliance has been placed on the judgment of the apex Court in East India Hotels Ltd. versus . Agra Development Authority (2001) 4 SCC 175. Reference may be made to paras 9 and 12 of the judgment, which read as follows:- “9. 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. 12. 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 6 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.” I am of the considered view that this judgment does not help the respondent at all. A bare perusal of two judgments of the apex Court clearly shows that it is necessary that notice must be issued by the court of competent jurisdiction. The service of the notice can be oral or in writing but there must be an order indicating that notice of filing of the award be issued to the parties. Mere filing of the award by the arbitrator in the presence of the parties does not indicate that notice of the filing of the award has been issued. This has been clearly held in both the cases. In the present case I have quoted the orders of the learned District Judge as well as the learned Senior Sub Judge in extenso. It is clear that the court had never applied its mind as to whether notice should be issued in this case or not till the notice was issued on 16.11.1995. On 30.9.1995 the learned District Judge only recorded that he had no jurisdiction and directed the matter be sent to the Court of the learned Senior Sub Judge and further directed the DA to appear before the Senior Sub Judge on 10.10.1995. 7 The learned Senior Sub Judge, who was the court of competent jurisdiction did not issue notice to the parties on 10.10.1995. True it is that the State was represented by the DA but the Court had not passed any order directing issuance of notice to the parties in respect of the filing of the award. On this date the court only asked its ministerial staff to check the award, make a report and thereafter put up the matter on 16.11.1995 for this purpose. On 16.11.1995, the Court passed an order issuing notice(s) to the parties. Article 119 of the Limitation Act reads as follows:- “119. Under the Arbitration Act, 1940- (a) for the filing in court of an award Thirty days The date of service of the Notice of the making of the award. (b) for setting aside an award -do- The date of service of the getting an award remitted notice of the filing of the for reconsideration. award. It is apparent that the limitation starts running from the date of service of notice of making of the award. In this case, notice of making of the award was issued on 16.11.1995. Since the DA was present, it can be said that he was served with the oral notice on the said date itself. Objections filed on 17.11.1995 were definitely within limitation. Both the courts below have erred in holding that the objections were not filed within limitation. 8 It has been urged by Shr Neel Kamal Sharma, that in fact the learned Senior Sub Judge has also dealt with the matter on merits. The manner in which the matter has been dealt with leaves much to be desired. Para-5 of the judgment of the learned Senior Sub Judge, reads as follows:- “5. Both these issues are proposed to be taken up and decided together for sake of convenience and just decision of this case. The evidence of OW-1 Sh G.C. Saukhla, Assistant Engineer reveals that he had no concern with the work of Khoti Nallah Bridge, therefore, his evidence does not help the objector. Similarly, the evidence of OW-2 Sh Rajesh Sood, Divisional Accountant that the work of construction of bridge on Khoti Nallah was completed prior to his posting at National Highway, Pandoh, does not help the case of the respondent- objector. The case of the respondent as such remains unsubstantiated and as such it cannot be held that the Arbitrator has misconducted the proceedings and exceeded his powers.” It is apparent that the learned Senior Sub Judge was not even aware of the basic principles of the Arbitration Act, 1940. While dealing with such objections, the Court has to decide whether the arbitrator has misconducted himself or the proceedings. The Court is not supposed to go into the merits of the case. Therefore, the mere fact that the persons who appeared as witnesses were not present at the time when the construction was took place, is immaterial to decide the validity of the award. 9 In view of the above discussion, the revision petition is allowed and the objections are held to be within limitation. The matter is remanded to the learned Senior Sub Judge, Mandi to decide the objections filed by the State on merits. Since the evidence has already been led by the parties and the matter is a very old one, the learned Senior Sub Judge, Mandi is directed to decide the matter as early as possible and in any event not later than 31st May, 2009. It is, made clear that I have not expressed any opinion on the merits of the objections filed. The learned Senior Sub Judge, Mandi, shall decide the case strictly in accordance with law. The parties through their learned counsel are directed to appear before the learned Senior Sub Judge, Mandi on 19.2.2009. The Registry shall ensure that the records reach the court below well before the date fixed. December 22, 2008 ( Deepak Gupta), J. s.