Only plaintiff is objecting to the award in this case filed by the Umpire. In order to decide the objections of plaintiff it is necessary to state the following facts :-
2. The defendant had invited tender for supply of .250 Bren Gun Chests. In response to the above tender enquiry the plaintiff's tender for supply of these items was accepted by defendant on 8-3- 1956. Eight months time for supply of these chests was allowed initially in the tender from the date of approval of advance sample and material test report or 31st October, 1956 whichever was earlier. It appears that the time for delivery of the goods was extended by the defendant from time to time but in spite of these extensions having been granted the supply could not be com--pleted with the result that on 26-4-1958 the defendant cancelled the contract and threatened to purchase the balance quantity of 926 chests at the expense and cost of the plaintiff and to recover the difference of price if any. After receipt of notice of cancellation of contract, plaintiff invoked the arbitration clause in the agreement and lodged his claim. The plaintiff nominated his arbitrator in the dispute and as the defendant had failed to nominate its arbitrator, the arbitrator appointed by the plaintiff started proceedings as the sole arbitrator in the dispute. The defendant then applied to this Court and they were allowed to nominate their arbitrator in the dispute. Accordingly, the defendant nominated their arbitrator and the board of arbitrators so constituted, first appointed an Umpire and then proceeded with the arbitration proceedings. On 18-2-1961 plaintiff filed. Its claim before the arbitrators claiming a sum of Rs. 89, 546 as damages. On 9-3-1961 the defendant filed their statement in the case but later, on 16-3-1962 an application was filed by them before the arbitrators seeking to amending their statement so as to include a counter claim. Alongwith the application seeking to amend their statement, defendant also filed their counter claim against the plaintiff the sum of Rs. 21,642. The plaintiff thereafter filed a further statement before the arbitrator on 19-4-1861 to which the defendant filed a reply on 1-5-1961 and a rejoinder to it was submitted by the plaintiff. After hearing the parties the two arbitrators did not agree and gave their separate awards. The arbitrator appointed by the plaintiff awarded a sum of Rs. 59,802 to the plaintiff against the defendant and did not consider at all the counter claim made by the defendant against the plaintiff. The defendant's arbitrator rejected the claim of the plaintiff for damages and allowed the counter claim - of the defendant at the rate of Rs. 21 per chest for the unsupplied quantity of chests. As a result " of this difference of opinion between the two arbitrators, the dispute was referred to the Umpire who after hearing the parties awarded a sum of Rs. 17,326 to the defendant against the plaintiff: This award is now impugned by the plaintiff.
3. I have heard. Mr. Wajibuddin Ahmed and Mr. Abut Kbair Ansari, the learned counsel for plaintiff and defendant respectively in the case. Mr. Wajihuddin Ahmed, the learned counsel for the plaintiff, has urged the following objections to the award :-
(i) That the counter claim made by the defendant before the arbitrator was incompetent and invalid as the same was raised by the defendant after reference of the dispute to the arbitrators and after filing of the written statement before the arbitrators and as such the Umpire could not consider the same.
(h) That there being no order by the arbitrators allowing the amend--ment of the statement of claim filed by the defendant and inclusion of the counter claim of defendant therein it was not competent for the arbitrator of defendant as well as the Umpire to consider and adjudicate upon the same.
(iii) That the Umpire committed a misconduct in failing to decide all the issue framed by plaintiff's arbitrator and allowing the counter claim of defendant which was not considered by the plaintiff's, arbitrator.
4. Before considering the above contentions raised by the learned counsel for the plaintiff I would like to first deal with a preliminary objection raised by the learned counsel for the defendant as to the maintainability of the objection/application for setting aside the award. The learned counsel for the defendant contended that the application/objections to the award filed by the plaintiff are beyond time and therefore they cannot be looked into by the Court and should be rejected summarily. In order to fully appreciate the contention of the learned counsel for the defendant it will be necessary to narrate here the history of this case from the time the award was filed in Court until the plaintiff filed' its objections thereto. The award by the Umpire is dated 16-11-1961. This award was filed in Court by the Umpire alongwith an application dated 28-3-1962. A sum of Rs. 5 was deposited in Court on 5-4-1962 towards fee for issuing notice of award to parties. On 9-4-1962 the Deputy Registrar, directed issuance of notice to the parties under the rules. It appears that after notices were issued no objections were filed on behalf of the plaintiff whereupon the award was made rule of the Court on 5.3-1963. 1t further appears that while the defendant was attempting to execute the ex parte decree passed as a consequence of confirmation of the award by the Court the plaintiff filed an application for setting aside the ex parte decree on 15-2-1965 on the ground that he was not served with a notice or the summon in the suit and that be came to know of the ex parte decree on 16-1-1965. This application was rejected by the learned Single Judge, sitting on the original side, on 13-9-1965. The order of the learned Single Judge was challenged by the plaintiff in L. P. A. No. 266/66 which was allowed and by order dated 28th January, 1974 the ex parte decree passed by the learned.' Single Judge on the basis of the award was set aside. The operative part of the order of L. P. A. Bench allowing the appeal of plaintiff is as follows :- "Consequently we allow the appeal. The application under Order IX, rule 13, C. P. C. Is accepted and the ex parte decree made on 5-3-1965 is set aside, and the case will go back on the original .Side of the Court for further proceedings on the award filed by the Umpire."
After the case was received back from the, appeal, number of notices issued to the plaintiff were returned unserved and finally according to the endorsement available on the file, the last notice issued was served on them on 5-3-1975 and objections were filed in Court on 4-4-1975. The learned counsel for the defendant contends that the objections as filed on 4-4-1975 were beyond time as the period of filing objections against the award allowed by law expired long ago. It is urged that the plaintiff became aware of the filing of the award in Court when he made the application for setting aside the ex parte decree passed on the basis of the award but did not file any objection thereto within 3J days _ of having come to know of the filing of the award in Court.
Alternatively, it is contended that in any case the plaintiff should have filed objections within 30 days of the order of L. P. A. Bench setting aside the ex parte decree passed on the basis of award, which was passed on 23-1-1974. The contention of the learned counsel is that the object of the notice under section 14(2) of Arbitration Act to the parties is to inform them of the fact of filing the award in Court so that they may file their objections to the award, if any, within the period allowed by law. It is accordingly urged that if the party against whom the award is made had the knowledge of filing of award in Court it is not necessary that a further notice be issued to him by the Court informing about the filing of award. The contention urged by the learned counsel .For the defendant is supported by the decisions in the cases of Bhola Nath v. Mohadev (1), Kamalsingh v.
Baldu Singh (2) and Bollaram George v. K. Lingish (3), cited by the learned counsel, the learned counsel for the plaintiff on the other hand contended that the clear and unambiguous language used in section 14(2) of Arbitration Act (I will hereinafter refer the Arbitration Act, 1940 as "the Act") and Article 158 of Limitation Act makes it obligatory on Court to issue notices to the parties as soon as the award is filed in the Court and non-issuance of such notices in terms of the above provisions of law vitiates the proceedings. The learned counsel further contended that the notice contemplated under the above provisions of law must be an expressed and written notice and served in the manner prescribed by law upon the party and acquisition of knowledge by the party of the filing of award in Court cannot dispense with the requirement of service of such a notice. The learned counsel for the plaintiff did not cite any case-law in support of his contention but similar views have been expressed in the cases~of Udit Singh v. Ram Lakhan Sing (4), Takhur Singh v.
Randhia (5), Gruditta v. Basant Mal (6), Punnoo Ram v. Nebh Raj (7), Talukdar and others v. Mand al. (8)--- and Hollarama
(1) AIR 1952 Cal. 226(2) AIR 1957 Nag. 57
(3) AIR 1961 Andh. Pra. 457(4) AIR 1933 All. 313
(5) AIR 1935 All. 852 (6) AIR 1925 Lab. 619
(7) AIR 1930 Lab. 228(8) A.1 R 1926 Cal. 1018 Vernomal v. Governor General of India in Council (AIR 1947 Sind 145). The last-mentioned three cases were also referred by a learned Single Judge of Baluchistan High Court in the case of Din Muhammad v. Jan Muhammad (PLD 1971 Quetta 30who took the view that service of an expressed written notice in the prescribed manner was a mandatory requirement of law and non- compliance thereof rendered the proceedings on an award as void. In so far as the view expressed in the above Quetta case by a learned Single Judge is concerned, I may only mention here that the contrary view expressed in Bhola Nath's case, Kewalsingh's case and B. George's case were unfortunately not brought to the notice of the learned Single Judge as would appear from the following passage at pages 37-38 of the report :- "I may observe here, as pointed out by Mr. Mirza that the same view was taken by the Lahore High Court in Punoo Ram v. Neagh Raj and. By the Calcutta High Court in Talukdar and others v. Mandal.
That has also been the view of other High Courts (See C. Das v. Ganesh Ram and Ramgasaml v.
Muthusami. I am in respectful agreement with the view which has been taken by the High Courts of the Sub-Continent for more than 75 years, and in view of the plain language of section 14, I do not think any other view is now possible. The applicant is therefore entitled to argue in this Court that, as he did not receive the statutory notice under the Arbitration Act, limitation has not begun running against him."
All the cases from Indian jurisdiction noticed in the judgment of learned Single Judge of the Baluchistan High Court in PLD 1971 Quetta 30, with regard to service under section 14(2) of the Act, were duly considered in the case of Bhola George and after considering both the views it was held in that case at page 461 of the report as follows :- "We are also of the opinion that section 14(2) of the Arbitration Act is mandatory and notice has to be given of the filing of the award, but we do not agree with the view taken by the Lahore High Court in the case of AIR 1925 Lah. 619, AIR 1930 Lah. 228, the Calcutta High Court in AIR 20 All. 474 and accept the view taken by the Nagpur and the Calcutta High Courts in AIR 1957 Nag. 57 and AIR 1952 Cal. 2.6 that if a party to whom notice has to be issued has knowledge that the award has b.-.n filed, that would be sufficient compliance with section 14(2) and no further notice would be necessary. The question whether a party has knowledge or not is a question of fact which has to be determined on the facts of that case."
It will not be out of place, to mention here that in a later case reported as Nilkanath v. Kashinath (AIR 1962 SC 666), the Supreme Court of India while considering the expression "date of service of notice" used in Article 158 of the Limitation Act, with reference to a notice under section 14(2) of the Act observed as follows at page 669 of the report :- "We see no ground to construe the expression `date of service of notice' in Col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word `notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words `notice' and 'service' it would have said so explicitly. It has not done so here. Moreover to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree, based upon the award at any time upon the ground that for want of proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration the speedly decision of a dispute by a tribunal chosen by the parties."
After considering all the cases noted above I have reached the conclusion that all the Courts are unanimous on the point that the provision with regard to service of notice in section 14 (2) of the Act, is mandatory and notice has to be given to the parties of the filing of the award in Court. I am further of the view that section 14 (2) of the Act, contemplates a situation where the award is filed by the arbitrator or the Umpire in the Court in the absence of parties and therefore notice is necessary to the parties to inform them of the filing of the award in Court so that they may file objection to the award if any. There however appears to be difference of opinion between the various High Courts in India on the point whether the notice contemplated under section 14 (2) of the Act should be a formal notice in writing andi served in the prescribed manner or it could be an oral informal and con--structive notice. In order to appreclate the true import requirement of notice under section 14 (2) of the Act, I will reproduce here section 14 itself:- "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 arbitrations, or umpire state a special case under clause (b) of section 13, t! a Court, after giving notice to the parties and bearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the award."
A reading of the above provision in the Act will show that whereas the notice required to be given under section 14 (I) of the Act by the arbitrator or the umpire to a party of the making and signing of the award and the fee and charges payable in respect there to has to be a written notice ; there is ho such requirement in subclause (2) of section 14 of the Act for the notice to be issued to a party by the Court after filing of the award in Court. There appears to be a deliberate omission by the Legislature of the expression "in writing" from subsection (2) of section 14 of-the Act. There is, therefore, no warrant on the plain language of the section to interpret the expression "give notice to the parties" to mean only a formal written notice served upon a party in the prescribed manner and exclude a constructive, oral or an informal notice. In its ordinary dictionary meaning the expression "give notice" will also mean an oral and informal notice by the Court which could be constructive as well. It is a cardinal rule of interpretation that words in a statute are primarily to be' given their ordinary dictionary meaning. I have not been able to discover anything either in the scheme or in the language of the Act to justify a departure from this basic rule of interpretation while interpreting sec--petition 14(2) of the Act. I am therefore in no doubt that the notice contemp--lated under section 14(2) of the Act can be an oral notice to a party and compliance of this provision of law will be satisfied if the party or a counsel appearing for him duly authorised in this behalf; is informed by the Court either in writing or orally about the filing of the award in Court and such notice could also be a constructive notice. Whether on not a party had such a notice will undoubtedly be a question of fact to be decided in accordance with the facts, and circumstances of each case. A further question will also arise in such circumstances that from what date the limitation shall start running against a party, who it is alleged have the notice of filing of award in Court in a constructive or informal manner. Article 158 of the Limitation Act provides that the period of 30 days shall commence against a party from the date of "service of notice" As I have already reached the conclusion that the notice under section 14 (2) of the Act could be an oral and informal notice as well, the starting point of limitation against a party in such a case will be the date on which the information of filing of the award is received by him. I will now examine whether in the present case the knowledge about the filing of award in Court by the plaintiff was such that it amounted to fulfilment of requirement of notice under section 14 (2) of the Ac and if so from what date the limitation should start running against him under Article 158 of the Limitation Act. It cannot be disputed that when the plaintiff filed his application under Order IX, rule 13, C. P. C. And inspected the file as stated in his affidavit filed in support of the application, he came to know of the filing of award in Court but it cannot equally be disputed that at that time the plaintiff could not file any objection or application for setting aside of the award on account of existence of the ex pane decree against him passed in the suit on the basis of award. This position was, however, materially changed when the appeal filed by the plaintiff against the rejection of his application under Order IX, rule 13, C.P.C. Was accepted and the ex parte order was set aside by the L.P.A. Bench and the award was remited back to this Court for further proceedings on the award. In my humble view on passing of the order by the L. P A. Bench on 28-1-1974 the plaintiff was placed in the same position in which he would have been had the learned Single Judge accepted his application for setting aside the ex parte decree and therefore he became entitled to file objection/application for setting aside the award if any, within 30 days of the above order. The direction of L.P.A. Bench remitting back the award on the original side for further proceeding, in my humble opinion amounted to a constructive notice to the plaintiff of the filing of award in the Court and in the absence of a direction in tile order of L. P. A. Bench for issuance of a fresh notice-of the filing of award to the plaintiff it was quite unnecessary to issue such a notice to the plaintiff. In view of the proceedings in the case from the time of filing of application by the plaintiff under Order IX rule 13, C. P. C. For setting aside the ex parte decree until passing of the order by the L.P.A, Bench on 28-1-1974, it is quite futile to argue that the plaintiff was still entitled to a notice of filing of the award in Court under section 14 (2) of the Act. The prayer made by the plaintiff in his application under Order IX, rule 13, read with section 131, C. P. C. Filed before the learned Single Judge for setting aside the ex parse decree was in the following terms :- "For the reasons disclosed in the accompanying affidavit the Honourable Court may be pleased to set aside the ex parse decree in the above case and permit the judgment-debtor to contest to award in the case on merit."
Could the plaintiff claim service of any further notice under section 14 (2) of the Act in the event of acceptance of this application under Order 1X, rule 13, C. P. C. By the original side Judge 7 The answer, plainly appears to me is that in such an event the plaintiff could only claim a period of 30 days for filing an application/objections for setting aside the award from the date of setting aside of the decree. If the plaintiff could not claim service of afresh notice on the acceptance of his application under Order IX, rule 13, C. P. C. On the original side, I fail to see how could an argument be advanced that he was entitled to such a notice upon acceptance of his application by the L.P.A.
Bench, in the absence of a direction in that behalf in the order. L, therefore hold that limitation against the plaintiff for filing objections/application for setting aside the award in these circumstancas started running from 28-1-1974 and therefore the objections filed by the plaintiff on 4-4-1975 were beyond time. Although in view of my finding on the preliminary objection raised on behalf of defendant it may not be necessary to deal with the other contention of the plaintiffs but in order to decide the matter finally I am inclined to decide the other objections urged by the learned counsel on merits against the award.
5. The first objection to the award is that the counter claim made by the defendant could not be looked into by the arbitrator or the umpire as it was made by the defendant after reference was made to the arbitrator. I have already stated in the,earlier part of my., order that the plaintiff first invoked the arbitration clause and nominated its arbitrator and as the defendants failed to nominate their arbitrator in terms of arbitration clause, the arbitrator appointed by the plaintiff started acting as the sole arbitrator. The defendants then approached this Court and were permitted to nominate their arbitrator in the dispute. Mr. Wajihuddin Ahmed, the learned counsel for the plaintiff admitted before me during the course of arguments that there was no specific written reference to the arbitrators in this case. In the absence of written reference to the Arbitrators it is not possible to infer that the dispute before the Arbitrators was confined only to the claim made by the plaintiff against the defendant. In fact in their letter dated 26-4-1959 by which the defendant cancelled the contract they informed the plaintiff that they intend to purchase the balance quantity of the chests from market and .That they reserve the right to recover the difference of price if any. It is not disputed that the counter claim raised by the defendant before the Arbitrators related to the alleged difference of price between contract price and the price for which the balance quantity of chest was allegedly purchased by the defendant. Learned counsel for the plaintiff was unable to point out any provision in the Act to support his contention that the dispute having been referred by the plaintiff to the arbitrator the defendant could not raise a.
Claim against the plaintiff by way of a counter claim. In my view upon reference of the dispute to arbitrators[ both parties became entitled to place their cases before the arbitrators and if the defendant raised a counter claim in that process, I see nothing wrong in that. In fact the learned counsel for the plaintiff himself contended that since the defendant had raised a counter claim against the plaintiff there should have been a fresh reference to the Arbitrators in terms of the counter claim. Such a course in my view was wholly 'unnecessary as the two Arbitrators were fully seized of the dispute between the parties and in the absence of any legal impediment to the entertainment of a counter claim they were entitled to consider the counter claim made by the defendant against the plaintiff before them. The fact that the counter claim was raised by the defendant after filing of the written statement by them is not of much significance as the plaintiff had the opportunity to meet the same. The written statement was filed by the defendant on 9-3- 1961 and the counter claim was filed on 16-3=1961 alongwith the application for amendment. The plaintiff filed a reply to the above on 19-4-1,961 to which the defendant replied on 1-5-1961. The matter was then beard by the arbitrators and they g4ve their awards on 25-7-1961 and 2-8-1961.
The umpire thereafter entered upon the reference and beard the counsel for the parties on 23-9- 1961 and 26-9-1961 and after hearing them gave his award on 15-1 I-1961. In these circumstances, I find no substance in toe contention of the learned counsel for the plaintiff. The selection of the forum of Arbitra. Petition by the parties to resolve their dispute is with the object of an expeditious decision of their dispute and to dispense with the technicalities of law. The parties having selected a domestic tribunal for resolution of their difference j and disputes cannot insist upon or rely on technicalities in the procedural matte before the arbitrators. The arbitrators and the umpire were therefore full entitled to adjudicate upon all the dispute between the. Parties covered unde the arbitration clause and no exception can be taken to that.
6. The second objection of the learned counsel is that there being 'no order by the arbitrators allowing the amendment of the statement of claim filed by the defendant and inclusion of the counter claim of the defendant therein, it was not competent for the arbitrator of defendant as well as the umpire to consider and adjudicate upon the same. No doubt the arbitrator of the plaintiff had not considered the counter claim made by the defendant against the plaintiff but this does not mean that the defendant's: arbitrators also disallowed the amendment. The non-consideration of the counter' claim of defendant by the plaintiff's arbitrator can at best be construed as disallow- -ing of the prayer of amendment of claim by one of the arbitrators. The acceptance of the counter claim by the defendant's arbitrator amounts to allowing of the prayer of defendant to include the counter claim by way of amendment of their statement. The umpire had entered upon the reference as a result of difference of opinion between the arbitrators and as such he was fully competent to decide the whole dispute as presented to him upon the difference between them. It cannot be disputed that on the counter claim of defendant there was a definite disagreement between the two arbitrators. While the plaintiffs arbitrators had not at all considered the counter claim of the defendant, the defendant's arbitrator had allowed the counter claim of defendant to the extent of Rs. 21 per chest for the balance quantity. The fact that the plaintiff's arbitrator had not adjudicated upon the counter claim of the defendant could not detract the umpire from considering the same. The umpire in my opinion was fully competent to adjudicate upon the whole ' dispute including the point of difference between the two arbitrators. There is nothing on the record to show that the plaintiff was not afforded any opportunity to meet the counter claim of defendant. Ample opportunity was available to plaintiff both before the arbitrators as well as before the umpire to present this point of view. I, therefore, find no substance in the second contention of the plaintiff as well.
7. The last contention of the learned counsel for the plaintiff is that the umpire misconducted in failing to decide all the issues framed by the plaintiff's arbitrator and by accepting the counter claim of defendant. I have already held earlier in this order that there was nothing wrong in entertainment of the. Counter claim of defendant by the arbitrator and the umpire as the entire dispute was before them. In so far the contention of the learned counsel relates to the failure of the umpire to decide all the issues framed by the/ plaintiff's arbitrator is concerned the mere fact that a particular issue framed/r in the course of proceedings has not been decided by them would not rand e the award void. The arbitrators or the umpire are not bound to answer al and every issue framed by them. It is not disputed that the plaintiff's claim related to the recovery of alleged damages suffered by him for an alleged breach of contract by the defendant. The further dispute before the arbitrators was a counter claim made by the defendant against the plaintiff for alleged losses suffered by them on account of purchase at a higher price of the balance quantity of chests not supplied by the plaintiff. Both the disputes are fully considered and decided by the umpire in his award. 1, therefore, find equally no merit in this contention of the plaintiff as well.
8. As a result of my findings on the preliminary objection raised by the defendant as well as on other contentions raised by the learned counsel for the plaintiff on merits against the award I reject the objections filed by him and make the award rule of the Court. Decree to follow accordingly.