P L D 1962 (W (PLP)

He held that the application was not maintainable since the award had not been filed in Court. Upon the second issue he held that the production of a copy of the award and an application to secure the production of the original award under Order XXX, r. 1, C. P. C. were not tantamount to the filing of an award, and that the award bad not been filed. `Arbitration Award' is not defined, but section 14 states that when the arbitrators make their award they shall sign it and give notice to the parties of making and signing it. Subsection (2) of the same section provides for the filing of an award, or a signed copy thereof. It appears to me, therefore, that the production of an unsigned copy does not constitute the filing of an award. The learned District Judge has exhaustively dealt with the authorities quoted before him. They establish the proposition that no application to set aside an award can be entertained, unless the award is filed in Court. The reason underlying this proposi tion is as follows: Unless an award is given the added authority of a decree of a Court, it has no legal effect, and thus cannot prejudice any person whom it purports to bind. In Ratanji Virpal & Co. v. Dhirajlal Manilal (A I R 1942 Bom. 101), Chagla, J., as he then was, observed: "Under the present Act, no proceedings can be taken on the Award till after it has been filed, and I fail to see how a party can possibly be prejudiced by the existence of an award which has not been filed in Court. Under the old Arbitration Act, it was competent to a party who obtained an award without filing it, to file a suit thereon." This is the oldest case on section 33, and has been repeatedly followed‑ In a recent case, Sait Parnandass Sugnaram v. T. S. Pillal and others (A I R 1960 Andhra Pradesh 59), a Full Bench held that it is not open to a defendant to set up an award as a bar to a suit filed on the original cause of action, where the award has not been filed, and all proceedings relating thereto had not been gone through as required by the Arbitration Act. It was held that no party can be prejudiced by the mere existence of an award. It does not become operative and enforceable until it has been filed In Court, and the Court adjudicates about its validity. Mr. Abdul Kader Shaikh argued that the petition was framed not merely to contest the award, but to contest the arbitration agreement contained as it was for a contract of which the validity is disputed. There is no doubt that under section 33, a party may apply to the Court for adjudication on the point whether an arbitration agreement is in existence or valid, but once it is alleged that an award has been made in purported pursuance of such an agreement, the attack upon the agreement becomes an attack upon the award. He quoted the remarks of Chagla, J. in the case cited above as under: "If a question arises with regard to the validity, effect or existence of an arbitration agreement, then the question has got to be decided by the Court in which the award which may result from that arbitration agreement may be filed." But this quotation cannot be divorced from the passage which follows immediately: "If the question is with regard to the award itself, then the question has got to be determined by the Court in which the award has been filed." There can obviously be cases where, without an award having been made, a party wishes to dispute the validity or existence of an arbitration agreement. But once the award has been given, then it is the award which must be challenged. There may be of course cases where a party against whom an award has been made, but not filed in Court, wishes to challenge the validity of a pur ported arbitration agreement in order to prevent any further proceedings in arbitration upon other matters, but in the present case, although there is a prayer for a declaration that there was no valid agreement, or reference for appointment of respondent No. 2 as an arbitrator or sole arbitrator to decide the matters mentioned in the award, it is clear that this prayer is made In connection with the disputed award. Similarly, in the 45 grounds of objection (the application did not suffer from undue brevity), only one ground can be taken as even remotely bearing on the validity of the arbitration agreement, and that is coupled with an attack upon the award. This ground reads as follows: "That the award is without jurisdiction, specially as the very existence of the contract specially with regard to the commence ment of instalments incorporated in the agreement forming the basis of the reference, had been challenged by respondent No. 1, and who had thereby denied the existence of the very contract giving rise to the arbitration or the award." Similarly also the application for amendment to add an attack upon the agreement is made with reference to the award. It reads "That the agreement out of which the reference and the award arose was void (for various reasons). The question for consideration, therefore, is whether the party who desires to challenge an award, can do so, before It has been filed in Court under the provisions of section 14, Arbitration Act. As regards the language of the Act, I can see nothing in the Act itself which curtails the apparent generality of the words in section 33, and I think that the only objection which deserves notice is the objection first taken by Chagla, J. that no prejudice can be caused until the award is filed. The object of sections 32 and 33 is well known. The Civil Justice Committee of 1926 had dealt with the scandalous delay which a party could oppose to the enforcing of an award under the law as it stood before the Act of 1940. The party had a right of suit to set aside an award and a choice of Courts in which to sue and obtain a temporary injunc tion. The Act of 1940 provided the more summary procedure of application, and restricted the choice of forum. It appears to me that the principle in section 39 of the Specific Relief Act applies now to applications under section 33, as it did to suits under the old law. The question, therefore, is whether the award, though filed in Court, creates a reasonable apprehension. Chagla, J. is perfectly correct in stating that the award cannot be enforced until it has been filed in Court. In addition, notice will issue to the parties concerned in the award, so that the party contesting the award will have an opportunity. But there is no time limit to an arbitrator giving notice of an award and limitation for filing does not start until an arbitrator has given notice. Secondly, Mr. Sohail is not prepared to concede that if a party wishes to enforce an alleged right by suit, an award, though not filed, cannot be a bar to the suit : furthermore, if the arbitrators have not given notice up to the filing of the suit, the defendant might obtain such notice and cause the award to be filed in Court. With the course of time, ft Is always possible that testimony may disappear ; as has been said in paragraph 700 of Story's Equity: "Lapse of time may deprive the party of his full means of defence." I am prepared to concede that once an award, as provided in section 14, has been filed In Court, then an application to challenge the award under section 33 is the same as an application to set aside an award mentioned in section

17. But this does not, in my opinion, involve the conclusion that an application to challenge the validity of an award is restricted to cases where an award has been filed. It is to be noted that in A I R 1948 Mad. 40, Gentle, C. J. allowed such an application under section 33 on the ground that the objection as to the validity was such as to constitute the award a nullity, and, therefore, non‑existent. I find it difficult to main tain a distinction between objections as to the validity of an award which nullify the award, and those which do not nullify the award. Therefore, though the trend of authority is against my opinion, I consider that the decision on the preliminary issues, namely, that unless an award has been filed in Court, an applica tion under section 33 to contest the award must necessarily fail, is wrong. Mr. Sohail argued that the party to an award can cause the award to be filed in Court and then can file his objections, but this appears to me to be an unnecessarily circuitous procedure. I would therefore allow this appeal with costs. K. M. A. Appeal accepted.