P L D 1964 Dacca 166 (PLP)

SIKANDAR ALI, J.‑This appeal is directed against the order of the learned Subordinate Judge, 1st Court Faridpur, dismissing a proceeding arising out of an award filed in his Court under section 14 of the Arbitration Act. There is no dispute regarding the material facts, which lie within a short compass and are as follows:‑

2. By an agreement duly executed between the appellant on the one side and the District Controller of Civil Supplies, Faridpur, representing the Government of East Bengal, now East Pakistan, on the other, the former was appointed as a Storing Agent at Bhanga, Faridpur, with effect from 23‑5‑

49. In due course he submitted his bills totalling a sum of Rs. 12,276‑3‑6 pies whereupon he was confronted with a counter demand for a sum of Rs. 22,026‑3‑6 pies charged on account of excess godown storage of commodities. This led to a dispute and was followed by correspondence culminating ultimately in a proposal made by the appellant in terms of the agreement for reference of the dispute to two arbitrators, one to be nominated by each party. In reply he was asked to nominate his arbitrator and let Government know in details the points to be referred to arbitration. He thereon nominated his arbitrator and communicated the same to Government together with the points to be referred to the arbitrators Government, however, did not make any nomination and so the appellant by his letter dated 7‑11‑55 appointed his arbitrator as the sole arbitrator. In due course the sole arbitrator after notifying Government as to the date, place and time of his proposed sitting made an award on 19‑11‑56 for a sum of Rs. 12,276‑3‑6 pies in favour of the appellant and thereafter at the instance of the appellant filed the award in Court with a petition which was registered as Miscellaneous Case No. 23 of 1956 of the said Court and notices issued upon the opposite‑parties. Government entered appearance on the date fixed and after taking some adjournments filed an objection on 4‑12‑56 challenging the award on the contention that the appoint ment by the appellant of his arbitrator as the sole arbitrator, the proceedings taken by the said sole arbitrator and the award made by him are null and void. Ultimately the learned Subordinate Judge by his order, appealed from, dismissed the Miscellaneous case on the finding that the appointment of the sole arbitrator by the appellant was illegal and that as such the award made by him was without jurisdiction and void. He has taken this view on the ground that the appellant failed to serve notice upon Govern ment calling upon them to nominate an arbitrator on their behalf and that it cannot, therefore, be said that there was any failure on the part of Government to make their nomination within the statutory period.

3. Mr. M. Khandkar, the learned Advocate appearing on behalf of the appellant, has taken three grounds in attacking the order of the learned Court below. In the first place he has urged that objection as to the legality of the sole arbitrator's appointment and consequently as to his jurisdiction to make the award ought to have been taken before the sole arbitrator. Indisputably that was not done but that cannot amount to waiver nor operate as estoppel. It cannot, therefore, be argued that the said objection taken in Court is incompetent or that the learned Subordinate Judge was wrong in entertaining the same.

4. The next ground taken by Mr. Khandkar is that the objection filed by Government challenging the validity of the award was time‑barred and as such the learned Court below ought to have rejected the same and proceeded to pronounce judgment according to the award, as laid down in section 17 of the Arbitra tion Act on the footing that there was really no objection raised by either party thereto. It is not disputed that the said objection was not filed within 30 days as required under Article 158 of then Limitation Act, which provides for limitation for an application for setting aside an award or getting an award remitted. The learned Subordinate Judge appears to distinguish between an application for setting aside or remitting an award and an objection challeng ing an award and to think that the provision of the said Article is applicable to the former only and not to the latter. This view, we are afraid, cannot be accepted as sound. There is no prescribed form for an application for setting aside or remitting an award and an objection opposing the award on any of the grounds available under the Act, one of which is its invalidity, is in substance and effect an application for setting aside or remitting an award as the case depending on the ground may be. Accord ingly Article 158 of the Limitation Act in our view will govern such an objection inasmuch as an application couched in express terms for the purpose of having the award set aside or remitted. The learned Subordinate Judge has, however, alternatively held that even brushing aside the said objection as time‑barred, he cannot still see his way to give effect to the award for the reasons stated by him in these words: "If I admit that the objection is not entertainable as conten ded by learned pleader for the Storing Agent, yet when the award is illegal and void ab initio and the illegality is apparent on the face of it, the Court should take judicial notice of it, it is not necessary that the parties should file objection to the award within the time prescribed under Article 158 of the Limitation Act." This view appears to receive support from the language of section 17 of the Act itself which provides :‑

"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 has 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."

5. It appears to be clear that even in the absence of an application to get the award remitted or set aside the Court can proceed to pronounce judgment according to the award only when it sees no cause to remit the same or any of the matters referred to arbitration for reconsideration or to set aside the award. Thus the power conferred, or we may better perhaps say, the obligation imposed, upon the Court under the opening clause of the above provision, in our opinion, expressly authorises or requires the Court to see suo motu before giving effect to the award whether there is any cause to remit or set aside the award even apart from the application which a party to the award may make for the purpose of getting the award remitted or set aside. In the case of such suo motu scrutiny by the Court, as a part of its statutory obligation, the provisions of Limitation Act are obviously inapplicable. In this view of the matter, therefore, we find no substance in this contention of Mr. Khandkar as well.

6. Lastly, it has been contended that the learned Subordinate Judge was wrong in the facts and circumstances of this case in taking the view that there was failure on the part of the appellant to serve the notice contemplated by section 9, subsection (b) upon the other party, i.e., Government, and this failure has vitiated the appointment of the sole arbitrator and rendered his award void. In order to appreciate this contention it will be useful to keep in view of the provision of the above subsection which lays down: "Where an arbitration agreement provides that a reference shall be to two arbitrators, one to be appointed by each party, then, unless a different intention is expressed in the agreement;

(b) if one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid for fifteen clear days after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent."

7. Under this subsection this condition precedent to the appointment by a party of his arbitrator as the sole arbitrator are (1) that the party proposing to exercise this power must have served notice on the other party calling upon him to appoint his arbitrator, (2) that a period of fifteen clear days must have elapsed after the service of the said notice and (3) that the other party must have failed to make an appointment within the aforemen tioned period. There are some other conditions laid down in other provisions, which, too, must be fulfilled, but there is no dispute raised before us regarding any of them. The controversy in the present case centres round the three requirements serialised above. It is not disputed that the appellant appointed his arbitrator as the sole arbitrator without serving the above‑mentioned notice upon Government although he could do that only after service of such notice and failure of Government to nominate their arbitrator within a period of fifteen clear days thereafter. Mr. Khandkar, however, contends that the letter written by his client informing the District Controller, as asked for by him, of the appointment and name of his arbitrator along with the points to be referred to arbitration and the communication subse quently made by the sole arbitrator to Government notifying the date, time, place, etc., of his sitting taken together may be regarded as sufficient or substantial compliance with the afore mentioned requirement of section 9(b). We are unable to accept this contention of the learned Advocate. The notice contemplated by the said section is one that has to be served prior and not subsequent to the appointment of the sole arbitrator and appear to be intended to give the other party an opportunity not only ; to make its own nomination but possibly also to give a second thought to its stand and arrive at an amicable settlement. So a communication intimating the fact and name of a party's arbitrator and the points‑at‑issue to the other party coupled with the notice served by the sole arbitrator which apparently deprives the latter of the aforementioned opportunity cannot, we are afraid, be regarded as a substitute either in fact or in substance for the prior notice, referred to above. We, therefore, agree with the learned lower Court that non‑service of the said notice has vitiated the appointment of the sole arbitrator and as such the proceedings taken and the award made by him are without jurisdiction and void. There had, however, been no illegality up to the stage prior to the appointment of the sole arbitrator, i.e., up to the appoint ment by the appellant of his arbitrator, and it is conceded by the learned Senior Government Pleader that it is open to the appel lant to proceed in accordance with the law from that stage even now.

8. It appears that the learned Subordinate Judge has merely dismissed the Miscellaneous Case without any order as to the award filed before him. Under the Act a Court shall either remit or set aside an award filed before it or proceed to pronounce judgment according to the award. Thus where the Court, for any reason, cannot see its way to give effect to the award, i.e., proceeded to pronounce judgment according to it, the only other alternative before it, is either to remit or to set aside the same with further appropriate orders or directions according to the circumstances of the case. In this view of the matter, there fore, the disputed award ought to have been formally set aside.

9. In the result, the appeal is dismissed. The disputed award is set aside. It will be open to the appellant to proceed in the matter of his arbitration in accordance with law. In the circum stances of the case, we make no order as to costs. HASSAN, J.‑I agree. S. B./K. B. A. Appeal dismissed.