P L D 1955 Sind 224 (PLP)

INAMULLAH, J.--‑This is an application under section 30 Arbitration Act of 1940 objecting to the award filed in this Court on 6th May, 1952. The award has been challenged on various grounds. The award was given under the following circumstances. The parties were partners in a business of cloth. Some difference arose between the parties as a result of which they agreed to refer their difference on 9th September, 1950 to certain arbitrators. By this reference to arbitration they agreed to refer their disputes regarding partnership accounts and other matters regarding their partnership. The panties gave full powers to the arbitrators to decide the disputes between the parties "after seeing or without seeing the documents which were produced before them" The arbitrators for some reason or the other, which I mentioned in their award, could not submit their awards earlier than 14th January, 1952. The defendants have taken exception to the award on various grounds. The first ground is that the award given by the arbitrators was void as they had submitted the award beyond the time prescribed under para. 3 of Schedule I of the Arbitration Act of 1940. The learned counsel for the defendant contended that the time allowed for making the award under para. 3 Schedule I of the Arbitration Act is four months. In the present case admittedly no extension of time was allowed by the Court, and therefore the contention is that the award is illegal and not binding on the parties. Para. 3 reads as under :‑ "The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act‑ by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow." It is clear that if an award is made beyond 4 months it is not void as such, it is only voidable. In the present D case, the circumstances of the case show that the defendants agreed to continue with the arbitration proceedings as late as 2nd of January, 1952 and 12th January, 1952. On the 2nd January 1952 the arbitrators had called upon the parties to give such evidence as they thought proper to produce before them. On the 12th January 1952 the arbitrators actually went at the shop where the parties were carrying on their business. The arbitrators in fact divided the shop premises into 3 divisions and gave possession thereof to the parties who had referred the matter for arbitration. The defendant, no doubt, was one of those parties who took possession under that award on the 12th January, 1952. It is not contended by the defendant now before me that he is not in possession by virtue of the award which was made in respect of the ‑shop on the 12th January, 1952. The award also mentions that the goods of the business were divided between the parties. The defendant had accepted the award of the arbitrators in reference to these goods also and had actually taken possession thereof. The defendant does not make out any grievance so far as to the division of the shop and the goods is concerned. I am therefore of the opinion that the parties having taken advantage under the award and having consented by their explicit conduct to continue the arbitration proceedings as late as 12th January 1952, the award having been given on the 14th January, 1952 it is not open to them to go behind the award and take exception to the same. The same view has been taken in Bibi Patto Kumari Saheba v. Upendra Nath Ghosh (50 I C 52.) by a Division Bench of the Patna High Court. Their Lordships observed‑ "Where parties attend and recognise that the arbitrator has jurisdiction to continue the arbitration, even though the time for making the award has expired, they are estoped by their conduct‑from seeking to impugn the award on the ground that it was invalid by reason of being filed out of time". This case no doubt was not directly on the point but the principle applicable there is the same as in the present case. It has been held in A I R 45 Sind, page 235 following other decisions of the same Court that, where a party accepts the award and acts on it and carries out the provisions of the award, he is estopped from contesting its validity. In the present case, as I have already shown, the defendant has accepted the award in so far as his share in the shop premises and his share in the goods are concerned. The same view was taken in A I R 31 Sind, page 107, that a party having taken advantage of the award cannot contest ifs validity. The other objections taken by the learned counsel for the defendant were (1) That the defendant was not given oppor?tunity to file his documents and produce evidence, (2) The plaintiffs fraudulently concealed certain documents which affected the award, (3) The award was not in fact made on the 14th January 1952. So far as these objections of the defendant are concerned, they have all been denied in the counter‑affidavit filed by the plaintiffs. These objections there?fore have to be decided only on the basis of the affidavits filed by the parties. The objection to an award filed by arbitrators is to be judged in the background that there is a presumption that whatever the arbitrators have done they have done bona fide, and in good faith unless otherwise proved. A mere allegation of one party against the arbitrators is not sufficient, unless it is further substantiated by facts on record of the case or evidence produced by the party challenging the award. In the present case there is no reason to doubt what the arbitrators have stated in the award that they gave full opportunity to the parties concerned to produce their evidence. Moreover the parties had agreed that the arbitrators could give their award without looking into the documents that may be filed by them. So far as the question of fraudulently concealing certain documents is concerned, the defendant had produce certain vouchers, which were in the hand‑writing of some of the plaintiffs. There is nothing on record to show that these vouchers were not taken into account by the arbitrators or that the plaintiffs while submitting their accounts to the arbitrators had concealed these vouchers. It cannot therefore be said on the evidence that is on the record that the plaintiffs had fraudulently concealed to bring to the notice of the arbitrators certain documents which may have affected their judgment. So far as the third objection is concerned that the award was not in fact made on 14th January 1952, but it was made later on, I do not find anything to show that in fact the award was not made on 14th January 1952. There is one very signi?ficant fact that the award very likely was made on 14th January 1952. Had the award been not made on 14th January 1952 the present defendant would not have filed a suit on 2nd February 1952. I, therefore, for the reasons set forth above dismiss the application for setting aside the award filed under section 30 of the Arbitration Act of 1940 and judgment will follow in terms of the award. Under the circumstances of the present case, I make no order as to costs of this application. A. H.??????????????????????????????????????????????????????????????????????????????????????? Application dismissed.