AZIZ-UR-REHMAN, J.---By means of this order I intend to decide the preliminary objection raised by the plaintiff to the effect that the objections filed on behalf of:
(i) Foreign JV Partner viz. M/s. Ssangyong Engineering and Construction Company Limited Korea of defendant through CMA No. 7871/12 under sections 30 and 33 of the Arbitration Act, 1940 on 17.4.2012 and;
(ii) Local JV Partner viz. M/s Usman Associates of Pakistan of defendant through CMA No. 7872 of 2012 under Sections 30 and 33 of the Arbitration Act, 1940 filed on 17.4.2012 are time barred.
2. Briefly the necessary facts leading to the above objection are :
3. The plaintiff Muhammad Athar Hafeez Khan son of Abdul Hafeez Khan is running the business of fabrication and consultancy. Per assertion due to his efficiency, expertise and devotion, on various occasions he was employed by various firms and International Companies.
4. The defendant JV comprises of two well-known Companies viz M/s. Ssangyong Engineering and Construction Company Limited of Korea and M/s. Usmani Associates of Pakistan. Per averments both the companies have executed big projects in their respective countries and enjoy enviable business reputation in their respective fields.
5. The defendant, per assertions was awarded the contract for construction of births Nos. 10 to 14 at East Wharves,Karachi in March, 2008 [hereinafter referred to the 'said project'] by the Karachi Port Trust [KPT]. The contract price was US$ 515,426,875.00 inclusive of all applicable taxes, duties etc.
6. The defendant, per assertion, thereafter approached the plaintiff and elaborately discussed the possibility of getting exemption and concession in sale Tax, Custom duties and all other duties and taxes in respect of the 'said project'. The plaintiff thereupon advised the defendant that they could get concession/benefit in terms of laws of sales tax, custom duty and Federal Excise Act.
7. Consequently the plaintiff and defendant after discussing the pros and cons of the matter entered into a consultancy agreement dated 17.6.2008. [Herein it is worth to mention the CONSULTANCY AGREEMENT dated 17.06.2008 has been actually executed between SSANGYONG + USMANI ASSOCIATES (JV), a joint venture Company of Ssangyong Engineering and Construction Co., Ltd, organized and existing under the laws of Democratic Republic of Korea and the plaintiff as being sole proprietor of PROGRESSIVE ENGINEERS]. Some of the relevant clauses i.e. 1 to 9 and 17 of Consultancy Agreement dated 07.06.2008 being relevant are reproduced herein : -
(1) That the JV Company shall make procurement of goods from within Pakistan and from abroad for the construction of permanent works required under the contract.
(2) That the said procurement of goods local or imported involve payment of following Federal Duties and taxes presently in force:-
(i) Custom duty varying from 5% to 20%.
(ii) Sales Tax varying from 15% to 17.5%.
(iii) Federal Excise Duty (FED) Rs. 900/- per MT.
(iv) Special Excise Duty (SED) @ Rs. 1%.
(3) That the consultant through its professional skill/expertise and resource available in the above said taxation matters shall advise and assist the JV Company to obtain the savings and benefits as may be availed under permissible laws of Pakistan for which the JV Company is legally entitled to.
(4) That the .IV Company shall authorize the consultant or its nominated person or persons to present and pursue the matters relating to duty and tax concessions before the competent authorities.
(5) That the JV company shall make available all necessary documents as well as supporting letters from the employer and other organizations as required by the consultant to pursue the matter before the Central Excise, Sales Tax and Custom Authorities.
(6) That the consultant shall look after the documentation and maintain the records required under the relevant taxation laws i.e., Sales Tax Act, 1990, Customs Act 1969 and Federal Excise Act 2005. The original files containing the aforesaid documentations shall remain with the JV Company whilea copy of it shall be maintained by the consultant.
(7) That the consultant shall be entitled to 50% share of the monetary benefit obtained by the JV Company by way of concession availed in sales tax, custom duty, FED, SED over and above the prevalent rate of tax and duty in force at the time of procurement transaction. JV Company has the knowledge that prevalent rate of duties and taxes on the relevant goods at the time of signing of agreement is given as Annexure 'A' which shall constitute the part of this agreement.
(8) That notwithstanding anything contained in the Customs Act 1969, Federal Excise Act 2005 and the Sales Tax Act 1990 or rules made there under regarding the availability or otherwise of tax concession, the consultant shall be entitled to 50% share out of statutory inherited tax savings and benefits or to be made available through the consultant.
(9) That once a procedure to obtain concessions in Sales Tax, Custom duty, FED, SED has been processed by consultant and the same is accepted by the concerned tax authorities for availing of benefit by the JV company the consultant will be entitled to continue receiving its share of 50% from the benefits obtained till the completion of the project.
(17). Both the parties agree toresolve their dispute/disputes, if any, mutually, failing which the first recourse shall be arbitration without any litigation and the arbitrator shall be appointed with mutual agreement of both the parties. In case of the failure of arbitration both the parties (JV Company and the consultant) will be free to file their claim in court of law in Islamic Republic of Pakistan as per prevalent law. No suit of any nature will be filed outside Pakistan.
8. Pursuant to the aforesaid consultancy agreement entered into between the plaintiff as being sole proprietor of Progressive Engineers and Ssangyong and Usmani Associates (JV), per plaintiff version, he successfully discharged/performed his obligations and responsibilities strictly in accordance with terms and conditions of the consultancy agreement dated 17.6.1998 [Available at page 41 of the court file]. Thus an amount of refund of sales, out of total refund claim of Rs.151,190,000/- filed by the defendant upto tax period of October, 2010, Rs.102,680,000/- were received by the defendant. Besides as a result of approved DTRE [duty and tax remission for export], the defendant gained benefit in the sum of Rs. 593,664,795/-.
9. Per consultancy agreement of 17.06.2008 plaintiff had originally claimed to be entitled for a sum of Rs.322,851,818/- with the following break up:- S.NO. HEAD OF ACCOUNTAMOUNT/(PKR)
1. 50% refund of input tax26,019,421.00 (sales tax) paid on purchase up to March 2009.
(details attached as annexure)
2.50% remission amount on296,832,397.00 account of DTRE approval.
3. Total 322,851,818.00 (Rupees three hundred twenty two million eight hundred fifty one thousand and eight hundred eighteen only)
10. The above claim and efforts made by the plaintiff were disputed to some extent by the defendant. Per defendant assertions despite repeated reminders/ requests, the plaintiff failed and/or ignored and/or unable to provide the agreed services in terms of consultancy agreement dated 17.06.2008.
11. In view of the aforesaid scenario/existence of Arbitration Clause the matter in dispute was referred to the Sole Arbitrator/Mr. Justice (Retd.) .Nazim Hussain Siddiqui, vide order dated 12 10.2010, passed on [CMA No.9628/10] in Suit No. 305/2010. [Muhammad Ather Hafeez Khan v. M/s Ssangyong and Usmani JV]. Order dated 12.10.2010 reads as under:- "For hearing of CMA No.9628/10(under section 151 C.P.C.)
12.10.2010 Mr. Mansoorul Arfin, Advocate for Plaintiff Mr. Balal A. Khawaja, Advocate for defendants. -x-x-x-x ' Through this application the plaintiff has prayed for appointment of sole arbitrator in pursuance of order dated 31.08.2010, whereby this court has been pleased to grant the application for appointment of sole arbitrator. The application is granted. Would, therefore, appoint Mr. Justice
(Retd) Nazim Hussain Siddiqui as the sole arbitrator. The learned arbitrator shall himself determine his fee after perusal of record of the case."
12. For ready reference the operative part of order dated 31.08.2010 are also reproduced hereinbelow: "23. In view of the above discussion, I am of the view that from perusal of clause 17 of the agreement dated 17.6.200, it is crystal clear that the parties are ad idem with reference to the essential terms of the contract with regard to referring the dispute/disputes, which may not be resolved mutually, to arbitration.
24. The upshot of the above discussion is that this suit is allowed. The parties are called upon to submit the name of their chosen arbitrator so that the matter may be referred to any one of them.
25. In view of the above order, Suit No.200 of 2010, filed by the defendant herein, shall also stand disposed of as the defendant would be at liberty to file its claim before the arbitrator."
13. Before the learned Arbitrator on 23.10.2011 when the matter came up the following issues were settled:--
(a) Who committed breach of consultancy agreement if so, to what effect?
(b) Is the registration of therespondents as importer,manufacturer and also as exporter was due to the efforts of the claimant?
(c) Whether the claimant failed to procure any refund of sales tax in respect of the case/applications filed by the claimants before the relevant authorities. If so, of how much amount and its legal effects?
(d) If the refund claims regarding Sales tax of Rs. 32,798,588/- is still stuck up. If so who is responsible for the same?
(e) To what amount if any the claimant is entitled?
14. Thereafter various documents were brought on record through evidence. Finally, after hearing of arguments, the learned arbitrator gave his award on 15.3.2012 by allowing the claim of the plaintiff in sum of Rs.315,213,837/-. Para 61 of the award reads as under :- "61. Issue No.5: ' After deduction of Rs.7,637,981/- as withholding tax, the net amountdue on account of DTRE comes to Rs.289,194,416/-. The amount due to the claimant on account of refund of sales tax is Rs.
26,019,421/-. Thus total claim of claimant which he is entitled comes to Rs.315,213,837/-, as shown in para 58 of this award. Accordingly, the claim of claimant is allowed to the extent of Rs.315,213,837/-.
' In compliance of Section 14 of the Arbitration Act, the award duly signed together with deposition and documents produced by the parties are sent to the Registrar High Court Sindh Karachi for placing the same before the Hon'ble Chief Justice for passing orders himself or referring the matter to any other judge for making award rule of court. Copies of this award within a couple of days will be dispatched to the contesting parties. "[underlining is mine].
15. The award so given by the learned Sole Arbitrator was sent to the Registrar of this court under covering letter dated 15.3.12 (available at page 85 of the court file.). Upon presentation/filing of the award on 15.3.2012 it was allotted Suit Number and thereafter on 16.3.2012, [on back side of the stamp paper of award], Additional Registrar passed the following order:- "Issue notice of Award to the parties in Form 12-C of Appendix-A of SCCR. Office is directed to consign the original documents forthwith".
16. The diary sheet of 15.03.2012 speaks about return of process for 20.4.2012. The diary of 15.03.2012 beingprior to 16.03.2012 is surprising one. Nonetheless, pursuant to order dated 16.03.2012 notice, signed by Assistant Registrar (OS-II) on 19.03.2012 was issued to the parties for 20.4.12. The notices thus issued to the parties were received on behalf of Foreign JV Partner and local JV Partner of defendant on 19.03.2012 and 20.03.2012 respectively. [Copy of notice duly served and acknowledged is available on court file]. From the record, however, it transpires that before expiry period of 30 days both JV partners [foreign and local], on 17.04.2012 had filed their respective objections.
17. To the objections i.e., [CMA No. 7871/12 and CMA No.7872/12], upon service thereof, the replies were also filed by the plaintiff wherein, inter alia the following identical preliminary submissions [objections] were raised:- "PRELIMINARY SUBMISSIONS
(1) The objections are time barred. The learned Arbitrator had sent intimation in writing by TCS on 15.3.2012 to the parties that he has delivered the award and submitted the same to the High Court 'today' i.e., 15th March 2012. The Respondent took the copy of the award from the learned Arbitrator on 16th March, 2012.
Since the Respondent had received written notice of the award and of the fact of it having been filed in the court, it should have filed the application within 30 days from 15th March 2012. However, the objections have been filed on 17thApril, 2012., The objections are time barred and are liable to be dismissed on this ground only."
18. Thereto, counter reply(ies) has/have also been filed wherein it has been denied that the objections filed on behalf of JV partners of defendant, are either time barred or otherwise, not maintainable in law.
19. On 01.03.2013, when the matter came up before the court inter alia for hearing of objections to the main award. Mr. Mansoor-ul-Arfin, learned counsel for the plaintiff forcefully submitted that in the 'first instance' arguments need to be heard on the 'point of limitation' viz-a-viz 'objections' filed by both the JV partners [foreign and local] without dilating upon merits of the case. Thus submissions of the learned counsel for the plaintiff were initially opposed by the learned counsel for the objectors/defendant [Foreign and Local Partners], however, thereafter they agreed keeping in view 'serious opposition' of the learned counsel for the plaintiff.
20. I have heard Mr. Mansoor-ul-Arfin learned counsel for the plaintiff/claimant, Mr. Kazim Hassan learned counsel for M/s. Ssangyong, foreign JV partner and Mr. Muhammad Masood Khan for M/s Usmani Associates local JV partner of defendant.
21. Mr. Mansoor-ul-Arfin learned counsel for the plaintiff vehemently argued that the 'objections' filed by the defendants' partner are time barred. According to the learned counsel since intimation in writing of 15.03.2012 [available at page 479 of the court file] has been sent through TCS by the learned Arbitrator to counsel for the parties which was duly received and duly acknowledged by them, therefore, per learned counsel objections should have been filed within 30 days' from 15.03.2012. The letter of learned Arbitrator dated15.03.2012 being very much relevant is reproduced as under :- "NAZIM HUSSAIN SIDDIQUI EX-CHIEF JUSTICE OF PAKISTAN Dated 15.03.2012 SUB: AWARD DT: 15/03/2012 DELIVERED IN THIS MATTER OF ARBITRATION BETWEEN MR. MUHAMMAD ATHER HAFEEZ KHAN VERSUS MIS SSANGYONG USMANI JOINT VENTURE.
(1) MR. MANSOOR-UL-ARFIN Advocate for the Claimant, Atfin & Company, 907-909, 9th floor, Tower -A, Samia Trade Towers, 1.1. Chundrigar Road, KARACHI.
(Copy received by M.Athar Hafeez Khan on 16.03.2012)
[Emphasis supplied]
(2) MR. BILAL A. KHAWAJA, Advocate for the Respondents, Ahmed & Ahmed Advocates, Hameeda Markaz,106 C, Jami Commercial, Street No. 11,Off Khayaban-e-Ittehad, Phase VII, DHA, KARACHI.
(Copy received by M. Asi. F.
Advocate on 16.03.2012)
(Emphasis supplied] In this matter, award has been delivered by the undersigned and has been submitted to the Honourable High Court of Sindh Karachi, today.
You above named advocates are requested to collect a copy of the award free of cost from my office on any working day.
[Underlining is mine].
Sd/- Justice Nazim Hussain Siddiqui (Sole Arbitrator)"
22. Per learned counsel, since the objections to the award filed on 17.04.2012, are beyond the statutory period of 30 days' hence merit no consideration and are liable to be rejected/thrown away on this score alone. Mr. Mansoor-ul-Arfin, learned counsel for the plaintiff emphatically further argued that 30 days' period under Article 158 of the Limitation Act 1908, for to set-aside an award or to get an award remitted for reconsideration under the Arbitration Act, 1940, is to commence from the date of service of notice of filing of the award. In this regard learned counsel also referred to section 12 of the Limitation Act, 1908. [IX of 1908] which deals with/speaks about the exclusion of time in legal proceedings. It would be advantageous at this stage to reproduce the same herein:
23. Section 12: "12 Exclusion of time in legal proceedings. (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the appealed fromor sought to be reviewed shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded,
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
(5) For the purposes of subsections (2), (3) and (4) the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
24. Mr. Mansoor-ul-Arfin learned counsel for the plaintiff further contended that in view of knowledge of filing of award in court no further notice to the JV partners of defendant is/was necessary and if it was issued then date of service upon the defendant is not relevant as far a filing of objections to the award are concerned. In any event, per learned counsel, time of 30 days is to commence from the date of knowledge and not from the date of service issued by court.
25. Mr. Mansoor-ul-Arfin learned counsel for the plaintiff/claimant in support of his contention placed reliance on the following case laws:--
(i) Muhammad Mushtaq Sai gal Muhammad Wasi Saigal [Reported 2001 SCJ 96],
(ii) Superintending Engineer, Communication and Works High Way Circle, Kohat v. Mian Faiz Muhammad and . Company [Reported PLD 1996 SC 797].
(iii) Ashfaq Ali Qureshi v. Municipal Corporation, Multan [Reported PLD 1985 SC 597].
(vi)M/s. Shaft Corporation Limited v. Government of Pakistan [Reported PLD 1994 Karachi 127]. (v)Mian Asmat Shah and another v.Mian Faiq Shah and others, [Reported PLD 2012 Peshawar 181].
26. Conversely, learned counsel for foreign JV partner of defendant Mr. Kazim Hassan vehemently contended that objections filed on 17.4.2012 are well within time of 30 days' statutory period. Per learned counsel time limit starts running from the date of 'receipt of court notice' in respect of filing of award and not otherwise. Per learned counsel under Rule 281 SCCR (0.S.) an award shall so far as possible be in Form No.12-A in Appendix-A. In the instant case, per learned counsel, admittedly the award is not Form 12-A thus per learned counsel, in fact, there is no award. Additionally the learned counsel further submitted that the award is not in accordance with the provision of section 14 (2) of the Arbitration Act, 1940. In view of such position the award as filed is liable to be rejected.
27. Mr. Kazim Hassan further urged that in view of section 17 of the Arbitration Act, 1940, it is mandatory for this court to consider the contents of the award andthereafter passed a decree if award is found in accordance with law . Apart from the above, learned counsel also made reference to the events transpired during the arbitration proceedings which in brief are as follows:- - " (a) While the arbitration proceedings were pending, a show cause notice was issued to the defendant by the office of the Commissioner, Inland Revenue, Zone-1, Regional Tax Office II, Karachi. This notice, which is dated 19.5.2012, demanded a payment of PKR 351 , 684, 309/- together withpenalties under Section 33 and default surcharge under Sections 34 and 36 read with Section 11(2) of the Sales Tax Act, 1990. The hearing of this show cause notice was fixed on 26.5.2012.
(b) Thereafter, there was a hearing before the concerned functionary. Order in original No. 10 of 2012 was passed on 28.8.2012. The said order held that the total amount of sales tax PKR 351,684,309/- is recoverable from the defendant, along with default surcharge. A penalty of 100% of the amount of tax involved was also imposed by the Commissioner.
(c) The defendant appealed. The Commissioner, Inland Revenue,Appeals-II, Karachi, on19.11.2012 passed an order maintaining the order in original dated 28.8.2012. Judgment was pronounced in the following terms: "Under the facts and circumstances of the case and legal position enumerated through case law citedat bar, the order in original No. 10 of 2012 dated 28.8.2012 passed by the Additional Commissioner IR-A, Zone-I, RTO-II, Karachi imposing tax at Rs. 703,368,618/- (Principal amount at Rs. 351,684,309/-, and 100% penalty amount at Rs. 351,684,309/-) is maintained."
28. Mr. Muhammad Masood Khan learned counsel for the local JV partner forcefully argued that the objections filed on 17.04.2012 are well within time. Per learned counsel it is mandatory for the court to 'give notice' to the parties of filing of the award. Per learned counsel limitation of 30 days' provided under Article 158 of the Limitation Act, 1908 is to run from the date when notice issued by court regarding filing of the award is 'served'. Mr. Muhammad Masood Khan further argued that under section 12(1) of Limitation Act, 1908, the 'day from which the period of limitation is to be reckoned is to be excluded. Mr. Muhammad Masood Khan strenuously contended that evidently in the case in hand notice issued to the parties/defendant served upon the foreign JV partner on 19.3.12 and local JV partner on 20.3.12. Under such circumstances the 'objections' filed on 17.4.12 are well within time.
29. Besides, per learned counsel M/s. Ssayang Yang and Usman Associates are two different and distinct parties/entities should have been sued separately. Per learned counsel the local JV partner has no 'privity of contract' with the plaintiff: Therefore, the award as far as local JV partner is concerned is void. Per learned counsel the JV agreement dated 8.11.2006 has been signed and executed by 'unregistered partnership, therefore, the suit initially filed by the plaintiff against the defendant is barred in view of section 69 of the Partnership Act. Per learned counsel the local JV partner of defendant No. 1 has neither hired services of the plaintiff nor signed the consultancy agreement dated 17.6.2008. In view of such position the award passed by the learned arbitrator besides illegal, unlawful is liable to be set-aside. In support of his contention learned counsel for the objector placed reliance on the following cases :-
(i) Panoo Rain v. Nebh Raj [Reported AIR 1930 Lahore 228].
(ii)Kishanlal Malhothra v. Union of India [Reported in AIR 1961 Punjab 5 (V 48 C3) ] (iii)Pakistan through Genera Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants 1991 SCMR 132.
(iv)Harichand v. Lachman Das and others [Reported in AIR (35) 1948 East Punjab 11].
(v)Superintending Engineer, Communication and Works Highway Circle Kohat v. Faiz Muhammad and Co. [Reported in PLD 1996 SC 797].
30. I have heard the learned counsel for the parties and also have minutely gone through the case laws cited at bar.
31, Before further proceeding at this stage it would be appropriate to mention herein that principle of 'fair trial' and 'due process' indeed all the time has been considered as golden principle for 'administration of justice' which, of course, covering both substantive and procedural due process.
32. Significantly after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 a 'fair trial' and 'due process' has now become a fundamental right. Any order passed or proceedings held in violation of 'fair trial' and 'due process' is null and void. In this regard reliance can be placed on the case of Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another [Reported in 2012 SCMR 1235 (1241)]. The relevant extract therefrom is reproduced as under:- "11 Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. In a very old judgment of this Court reported as Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681)", this Court went on to hold as under:-- "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings whichfollow also become illegal."
33. Being advantageous Section 14 of the Arbitration Act, 1940 [X of 1940] is reproduced hereinbelow--: "14. Awards 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 hrbitrator or umpire state a special case under clause (b) of section 13, the Court, giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the award.
34. Mere perusal of Section 14 [2] of the Arbitration Act [X of 1940] would show that after the award is filed in court by the arbitrator the court shall 'give notice' to the parties of the filing of the award.
This issuance of notice by court in, my view, falls within the ambit of 'due process'. What is 'due process of law' the Hon'ble Supreme Court of Pakistan while dilating upon the terms 'due process of law' in the case of New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi (PLD 1999 SC 1126), summarizing the term "due process of law' while placing reliance on the judgment in the case of Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863)", held as under:--
(1) person shall have notice ofproceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his "rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine "due process of law" which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal.
A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him."
35. Section 14(2) read withArticle 10-A now incorporated through 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973 make the notice of course, in writing a mandatory requirement for each and every proceedings keeping in view the concept of 'fair trial' and 'due process'. In courts proceedings it is worth to mention that 'notice' is always given to parties 'in writing'.
36. Apart from this under the legal Maxim 'Actus curiae neminem gravabit' ,the act of the court prejudice no one. Reliance in this regard is placed on the cases of :
(a) Mst. Ghazala Rehman through attorney v. Najma Sultana through LRs and 2 others [2012 MLD 188 (208 to 209)] "36 At this juncture, we would like to quote famous legal Maxim 'Actus curiae neminem gravabit'
(an act of Court shall prejudice no man). In the judgment reported in 2001 SCMR 1001, (Ghulam Hassanv. Jamshed Ali), the honourable Supreme Court held that courts are to administer justice in accordance with the provisions of law. Application of provisons of law is the duty of the Court, Maxim 'Actus curiae neminem gravabit' (an act of Court shall prejudice no man), comes into play, .With a view to obviate hardships which may otherwise be the result of the errors of the Court itself. Where non-compliance with the mandatory provisions of law occurs by complying with the direction of the Court which is not in conformity with the law, the party complying therewith is not to be penalized. In another judgment reported in 2005 CLD 187, (Saadat Hayat Khan v. Muslim Commercial Bank Ltd.), the learned Divisional Bench of this court held that no party shall be made to suffer due to the act or omission of the Court in the performance of its duties."
(b) Dar Okaz Printing and Publishing Ltd. Liability Company v. Printing Corporation of Pakistan (Pvt.)
Ltd. [PLD 2003 SC 808 (817)] ' 12 Suffice it to observe, noperson shall suffer on account of act of Court and an order passed by the Court shall cause no prejudice to any of the parties."
37. Even otherwise, in my view, the affected innocent person deserves to be given the 'benefit of doubt' in a scenario of confusion due to the act of court.
38. Now I come to the case laws cited by the learned counsel for the plaintiff as under :
(a) Muhammad Mushtaq Saigal and others v. Muhammad Wasi Saigal [Reported] [2000 SCJ 19961 In this case the question before the apex court was an application under Section 14 [2] of the Arbitration Act , 1940 whereby the applicant had sought direction to the learned arbitrator to file or cause to file the award given by him in court. Objections raised were to the effect that application is barred by time in terms of Article 178 of the Limitation Act, 1908 [IX of 1908]. Such objection, however, was overruled by holding that in absence of service of notice by thearbitrator under Subsection (1) of Section 14 of the Arbitration Act, 1940, the period of limitation under Article 178 of the Limitation Act, 1908 [IX of 1908] could not be computed from the date ofaward dated 23.01.1986.
' Consequently, the application allotted J.Misc. No.28/1986 was allowed and arbitrator was directed to file the award in court. High Court Appeal No.40/1988 filed against the aforesaid order was also dismissed. Against the dismissal of High Court Appeal No.40/1988, however, CPLA No.499-K/1991 filed before the Hon'ble Supreme Court of Pakistan was allowed in view of the fact that the arbitrator had given notice in writing to the parties by making and signing the award in their presence by obtaining their signatures on the 'diary' of the above dates.
' The facts of the above case are clearly distinguishable as far as the case in hand is concerned. In the present case neither the award made and signed in the presence of the parties nor any signatures were obtained on the 'diary' maintained by the learned arbitrator in the instant case filing of any application under Section 14 (2) of the Arbitration Act, 1940 for filing the award in court is also not involved. Therefore, in my view the case supra is of no help as the facts and circumstances of the instant case are totally different.
(bSuperintending Engineer,Communication and Works High Way Circle, Kohat v. Mian Faiz '
Muhammad and Company [Reported PLD 1996 SC 797]. In this case the award was filed in presence of the counsel for the petitioner. The extract relevant therefrom is reproduced as under: 4 In that case, the award wasfiled in court on 31.03.1981 in presence of the petitioner's counsel and the matter was adjourned to 05.05.1981 for filing of the objections to the award. As no objection was filed to the award, it was made rule of the court. The period of 30 days prescribed for filing of the award in that case was held to be applicable from the date when the award was filed in court in presence of the counsel of the petitioner in that case". In these circumstances, the order of learned Judge in Chamber holding that the Objections to the award filed by the petitioner were beyond time and, therefore, could not be taken into cOnsideration by the court, is not opened to any exception."
' The facts of the aforesaid case are also distinguishable because in the instant case the award filed in court is not 'in the presence of advocates of the defendants' JV partners, therefore, the period of 30 days' prescribed for filing of the objections not commenced from the date when the award was filed in court.
(c) Ashfaq Ali Qureshi v. Municipal Corporation of Multan [1985 SCMR 597]. In this case formal service of notice under Order XXIX was under consideration. The relevant part reads as follows: "9....Apparently, the prevalent view is that as the provision of the law is meant to enable the parties to know that the award has been filed in court so that they may file their objections, if any, within the time prescribed, a formal compliance in strict conformity with the relevant provision of law is not to be insisted upon when substantial compliance has been made of it. In keeping with this view where the fact of filing of the award by the arbitrator had already been in the knowledge of the parties and their counsel had in response to notice issued by the court appeared and taken time to file their objection as in the present case as an insistence of a formal service of notice under Order XXIX would be a mere technicality. Even otherwise, an objection on this score had neither been taken before the trial court nor in the memorandum of appeal before the High Court and was therefore, only an afterthought not entitled to serious consideration."
' This case is also distinguishable as in the present case no question of formal service of notice under Order XXIX involved. Notwithstanding receipt of court notice on 19.03.2012 and 20.03.2012, by the JV partners objections to the award were filed on 17.04.2012 which are within the prescribed period of 30 days.
(d) M/s Shall Corporation Ltd v. Government of Pakistan through Director General of Defence Purchase, Ministry of Defence, Karachi [PLD 1994 Karachi 127] In this case the court while interpreting Section 14 of theArbitration Act, 1940 has taken into consideration the conflicting view expressed by the various Courts. One view is that'knowledge of filing of an award acquired in a way other than that laid down by Section 14 cannot be deemed to be a proper service of a notice of the award and the statutory provisions relating to service as contained in Section 14 [2], cannot be dispensed with and nor the statutory rights of a party to be served personally can be ignored'.
Other view is that 'if a party had knowledge of filing the award in court it is not necessary that a further notice be issued to him by the court informing about the filing of the award'.
The above case , is alsodistinguishable as in the instant case question of non-issuance of notice is not involved. In the present case, of course, notice has been issued and served on the defendants' foreign and local partner on 19.03.2012 and 20.03.2012 respectively. The defendants' JV partners, however, prior to 30 days i.e. On 17.04.2012 filed their objections.
(e) Mian Asmat Shah and another v. Mian Faiq Shah and orders [PLD 2012 Peshawar 181]. The facts involved in this case besides irrelevant are distinguishable as far as the facts of the instant case are concerned.
39. As far as the case of laws cited by Mr. Muhammad Masood, learned counsel for the defendants' local JV partners are concerned the same are very much relevant and fully cover the dispute involved in the present case. The same are as under :
(a) Punooram v. Nibraj AIR 1930 Lahore 228. The relevant extract reproduced therein from the case of Chatur Buj Das v. Ghanesh Ram [1898] 20 All 474 reads as under: "that it is incumbent on the court to give a notice to the parties under the provisions of the Clause mentioned above and that the fact that they might have received knowledge of the award having been filed in court Aliuende does not amount to such a notice. In my opinion in the present case having regard to the fact that the petitioner was not considered by the court to be present in court after 24.02.1928 it cannot with consistency be contended by the defendant that a notice was given to him by the court in filing of the award even in directly assuming that an indirect notice such as claim to have been given in this case is permissible under the law."
(b) Kishan Lal Malhotra v. Union of India through Director General of Supplies [AIR 1961 Punjab 5 (v)
48 C 3] (at Delhi). The relevant extract reproduced therein from the case of Hari chand v. Lachman Das AIR 1948 EP 11 reads as under:-- ' the order recorded the presence of the parties when the award was filed by the arbitrator but did not say that any notice of filing of the award was given to them.
" It was held that no notice could be implied from that order nor could the notice be implied from the mere mention of the fact that the award had been filed especially when the order passed by the court on subsequent dates that the court thought of giving of a notice of the filing of the award. Although the facts in that case are somewhat distinguishable but it appears that the trend of observation is and that is in consonance with the language of Article 158 of the Indian Limitation Act that the limitation will run only from the date of notice of filing of the award has been served.
' That necessarily implies an act of the court which has to be by an order to the effect that the award has been filed by the arbitrator or the umpire and then a notice has to go with regard to the award having been filed. This is for the purpose of enabling the other party or parties to file objections to the award if they so desired within the period of 30 days. I do not consider therefore, that the objections of the union could be rejected on the ground that they were barred by time."
(c) Pakistan through General Manager, Pak Railways v. M/s Q.M.R. Expert Consultant [PLD 1990 SC 800]. The relevant observations made therein are as follows: "8 We are, therefore, of theview that the notice underSection 14(2) of the act served onMr. Said Ali Shah on 01.10.1973 by the Court about the filing of the award was legal and binding on the appellant.
' It was also contended by Mr. Fazal-i-Hussain, learned AOR for the appellant, that the copy of the award was furnished on 09.10.1983. This fact has not been refuted. The question, therefore, arises, whether can we treat 09.10.1983 as terminus a quo i.e. The starting point for computing the period of limitation. If this can be done, objections to the award would be within time as they were filed on 08.11.1983. Though Mr. Fazal-i-Hussain has referred to the above facts in his arguments but he has not cited any judgment in support thereof. However, on further examination of the above question we found that subsection (4) of Section 12 of the Limitation Act expressly provides that the time requisite for obtaining a copy of the award shall be excluded."
(d) Hari Chand v. Lachman Das and others AIR (35) 1948 East Punjab. The relevant portion therefrom is reproduced as follows: "He further contended that the orders of the court dated 29.11.1943 recorded in the presence of the respondents' counsel implied a notice of the filing of the award and accordingly, objection to the award should have been put within 30 days of ihose orders. The contention appears to whollydevoid of force. It was under Section 14, Arbitration Act, that the arbitrator applied to the trial court and subsection (2) of that section definitely lays down that after the award has been filed in court the court shall thereupon shall give notice to the parties of the filing of the award. This is a statutory provision, and it is futile to urge that any court can dispensed with it."
(e) Superintending Engineer Communication and Works Highway Circle Kohat v. Mian Faiz Muhammad and Co., Akora Khattak [PLD 1996 SC 797]. The relevant extracts run as follows:-- "6 Coming now to the merits ofus appeal, we will take up the objections under subsections (1) and
(2) of section 14 together. Section 14 (1) provides for a notice of the making of the award by the arbitrators. Section 14 (2) provides that after the award is filed by the arbitrators the Court shall give notice to the parties of the filing of the award. Learned counsel for the appellant contends that in view or the use of the word 'shall' in either of these two provisions, it is necessary to comply with them, and in the absence of notice of the making of the award, or of the filing of the award, the award is as yet unenforceable and void. We see little force in these contentions when urged by a person who, after coming to know of the contents of the award, had filed objections to the award. The object of the provision relating to notice of the making of the award is only toinform the parties that the award had been made so that they may file an application for the filing of the award. Such an application has to be filed within ninety days of the service of notice of the making of the award under Article 178 of the Limitation Act. Similarly, the object of giving notice of filing of the award is to enable the parties to file an application for setting aside of the award.
Such an application has under Article 158 to be filed within 30 days of the service of the notice of the award. Had there been involved any question of limitation as to an application for filing of the award, or as to an application for setting aside of the award, reliance upon the provisions to give notice would have been justified. But, in the present case, there was no application for filing the award at all and there was no objection on the ground of limitation to the application for setting aside of the award. No objection as to the absence of notice of the award or of filing of the award can be taken by a party who has filed an application for setting aside of the award and the application has been entertained without any objection as to limitation. It is not contended that the appellant did not know of the contents of the award for he had filed objection after going through the award. Learned counsel for the appellant has relied upon judgments which lay down that the provisions of section 14(1) and (2) are mandatory. They may be mandatory and may form astrong basis for repelling any objections on the ground of limitation, but they cannot render an award void. Their effect would be that the court would direct compliance with them but when the object of the provisions had been served and the parties have knowledge of the contents of the award as well as of its filing there is no need of any formal notice (though its absence may be pleaded in reply to an objection on the ground of limitation). Learned counsel for the appellant urges that as long as there is no notice for filing of the award objections cannot be filed at all. We asked him to refer us to any provision to that effect in the Arbitration Act and he was unable to do so. An application for setting aside the award can no doubt be filed within thirty days of the service of notice of filing of the award, but there is no reason to suppose that even if notice has not been formally served, a party cannot put in an application for setting aside the award.
Suppose in the present case this application for setting aside the award had succeeded. Could the respondent urge in the High Court that as notice of the award had not yet been served on the appellant, the whole proceedings were infructuous? He could not possibly be allowed to urge that.
It is only the person on whom notice had not been served, who could make a grievance of it and he too could rely on it only in reply to a plea of limitation. We are at the same time of the opinion that the point under discussion can be decided even by reference to section 17 of the Arbitration Act, which runs:- ' Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award had expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award.'
' In accordance with this section either the limitation for filing an application to set aside the award should have expired or such an application should have been made and rejected, and if it is rejected the Court had to proceed to deliver judgment in accordance with the award. This section does not say that as long as notice of filing of the award had not been served, the Court is not to deliver judgment."
40. It is significant to note that per para 61 of the award, copies of the award were to be dispatched within a couple of days to the contesting parties which means copies of the award were furnished on or after 18.03.2012 if read with in juxtaposition of Arbitrator's letter received to J.V. Partners on 16.03.2012. Be that asit may, 18.03.2012 would be presumed terminus a quo for computing the period of limitation in view of subsection (4) of Section 12 of the Limitation Act which expressly provides that time requisite for obtaining copy of the award shall be excluded. Nonetheless, in the instant case, J.V. Partners have been served on 19.03.2012 and 20.03.2012.
41. Besides, in terms of Section 12 (2) of the Limitation Act, 1908 [IX of 1908] the day of announcement of award is also liable to be excluded. Section 9 of the General Clauses Act also provides for exclusion of the first day in a series of days or any other period of time. Reliance is placed on the case of Shahi Textiles and 3 others v. Askari Bank Ltd through President [2011 CLD 996 (1001- C)]. The relevant extract therefrom is reproduced as follows:-- '6 As is clear from the foregoing whenever the word from is used the first day has to be excluded.
This does not, however, mean that if the word from is not used the first day has to be included. It is to be noted that there is no requirement under the General Clauses Act that the use of the word "of" would cause the first day to be included. Whether or not the first day is to be included or excluded would therefore, depend upon the statutory provisions of the context in which they appear."
42. Under Section 14 (2), of Arbitration Act, 1940 [Act No.X of 1940] the arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming undersuch 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 changes 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. In terms of Subsection (2) of Section 14 'and the court shall thereupon give notice' only means a notice in writing. Because in the 'legal proceedings' notice is always sent to the parties in writing. Besides, I am of the view that such notice is mandatory and cannot be dispensed with unless such notice is waived by a party.
43. In the instant case admittedly notice issued by office pursuant to order passed by A.R. (0.S) on 16.03.2012 has been served upon foreign and local J V. Partners of defendant on 19.03.2012 and 20.03.2012 respectively. Therefore, in my view objections filed by them on 17.04.2012 are well within time and not time barred as asserted by the plaintiff.
44. In view of the above, I am of the considered opinion that the objections filed by J.V. Partners of defendant are well within time and not time barred under Article 158 of the Limitation Act, 1908 [IX of 1908]. The objections thus raised by the plaintiff are overruled. The observations made herein however are of tentative nature and will not affect the merits of the case.