2019 PLP 1732 (CLC)

MRS. KAUSAR SULTANA HUSSAIN, J.

Being aggrieved and dissatisfied with the order dated 19.10.2016 and award Decree dated 25.10.2016 passed by the learned Single Judge in Suit No.2276/2015, the appellant preferred this H.C.A. No.386/2016 along with C.M.A. No.4151/2016 along with an application under Section 5 of Limitation Act, 1908 for condonation of delay in filing this appeal.

2. Notice of the appeal and C.M.A. No.4151/2016 were given to the respondent. Per contents of the application (C.M.A. No.4151/2016) the appellant gained knowledge about passing of the order and the Award Decree through respondent's letter dated 11.11.2016, received on 15.11.2016, then on 17.11.2016 he applied for obtaining certified copies of the impugned order and Award Decree, which were issued to him on 25.11.2016. The appellant claimed that no notice in terms of Section 14(1) and (2) of 'The Arbitration Act, 1940' had ever been received to him, therefore, the appellant remained unaware of the award proceedings in Suit No. 2276 of 2105.

3. After receiving the notice of this appeal and application under Section 5 of Limitation Act, the respondent filed their para wise reply to the appeal and Counter Affidavit to C.M.A. No.4151/2016, whereby the authorized representative of the respondent has denied the contents of the appeal and application of the appellant. In its reply the respondent has stated that the appellant themselves had filed their Regional Office Address of 709, 7th Floor, Park Avenue Building, Shahrah-e-Faisal, Karachi in their own Suit No. 876 of 2012 as well as in their claim before the learned Arbitrator and they were using such address throughout the proceedings including notice of award before this Court of original side and they did not intimate to all concerned i.e. learned Arbitrator, this Court and the respondent about the change of address, which is a mandatory requirement of the law as provided under Order VII Rule 24 of the Civil Procedure Code (C.P.C.). The respondent has further pointed out that as per the contents of the Award it was announced in presence of the parties counsel and on their request award was filed by the learned Arbitrator in the Court, therefore the appellant cannot now claim ignorance of the same, hence an application for condonation of delay in filing appeal may not be considered and may be dismissed.

4. We have heard the learned counsel for the parties on main appeal and on the application for condonation of delay in filing the appeal, wherein the appellant has prayed for setting aside the impugned order dated 19.10.2016 and the Award decree dated 25.10.2016 passed by the learned Single Judge in Suit No.2276 of 2015 and has further prayed that the appellant may be allowed to file objections against the Award passed by the learned Arbitrator under the provisions of Arbitration Act, 1940. The appellant has filed this appeal on the main ground that at the time of submission of the Award before the Court by the learned Arbitrator, no notice has been issued to them at the Registered Office at Islamabad, while its Regional Office located at Karachi was lying closed for the last three years, therefore, the order passed by the learned Single Judge on 16.10.2016 and its Award Decree dated 25.10.2016 are illegal, unjust, contrary to law, against the principles of natural justice, void ab initio, without any lawful jurisdiction or justification on the facts of the case.

5. The learned counsel for the appellant has further argued that the learned Single Judge has failed to appreciate that the appellant did not receive any notice from the learned sole Arbitrator under section 14(1) of Arbitration Act, 1940 about the award. He further submitted that the appellant was waiting for the service of mandatory notice of the Court in terms of Section 14(2) of Arbitration Act, 1940 for filing of the award before the Court, however, on 15.11.2016 the appellant/plaintiff received a notice dated 11.11.2016 from the respondent for recovery of the decretal amount in terms of the impugned Award Decree dated 25.10.2016 making the award rule of the Court. Thereafter he applied for certified copies of the impugned order and Award Decree. The learned counsel for the appellant has further argued that the Assistant Registrar (O.S-II) has issued notice on 20.11.2015 about filing of the award in Court by the learned Arbitrator and fixed the matter before the Additional Registrar on "15.01.2015" which date had already expired long before issuance of the said Notice.

6. The learned counsel for the respondent has argued that if the Regional Office of the appellant had allegedly been closed for the last three years which means that the said Regional Office had also been closed during the course of the arbitration proceedings, hence it was incumbent upon the appellant to bring on record of the learned Arbitrator, this Court and the respondent the fact about change of its address under Order VII, Rule 24 of the C.P.C., which is a mandatory requirement of the law. He in this regard relied upon the decisions reported in 2006 CLD 829 Karachi (Mubarak Ali v. First Prudential Modaraba), PLD 1994 Karachi 127 (Messrs Shafi Corporation Ltd. v. Government of Pakistan), 2016 PTD 55 (Collector of Customs v. Shandev Vankwani), 1999 SCMR 1326 (Aftab Ahmed Khan Khichi v. United Distributor Pakistan, Karachi), 1974 SCMR 104 (Mustafa v. Settlement Commissioner Bahawalpur Division Bahawalpur), 1983 SCMR 718 (Lahore Development Authority v. Khalid Javed Co.), 2016 MLD 506 (Port Services (Pvt.) Ltd. v. Port Qasim Authority), 1974 SCMR 223 (Muhammad Nawaz v. Sakina Bibi), 2013 SCMR 5 (Bakhtiar Ahmed v. Mst. Shamim Akhtar and others) and PLD 2016 SC 872 (Khushi Muhammad v. Mst. Fazal Bibi).

7. During his arguments the learned counsel for the respondent has further explained that the learned Arbitrator has announced/passed the award dated 7.11.2015 in presence of the appellant and the respondent and they both requested the said Award be filed in the Court, therefore, the appellant cannot now claim that he was unaware of the arbitration proceedings. The learned counsel for the respondent prayed for dismissal of the appeal being time barred along with an application (C.M.A. No.4151/2016) under section 5 of Limitation Act.

8. After hearing arguments and perusal of the record, it reveals that before the learned Arbitrator the appellant/claimant has submitted its same address, thereafter they have never intimated the learned Arbitrator about the change of their address. It is also noted that even when the award was announced by the learned Arbitrator in presence of the parties the appellant / claimant has not provided his new address. In our view if award having been announced in presence of the parties counsel by the learned Arbitrator, written notice is not the requirement of law. However the record shows that notice was issued by the office of this Court at the address supplied by the appellant itself in its suit and as per Bailiff's endorsement, the notice was duly received by the Office Incharge of appellant namely Muhammad Adnan under his own signature available on record and in spite of service of notice, no one had appeared before the learned Single Judge on the date of hearing, therefore, the learned Single Judge passed the impugned order, whereby the award was ordered to be made rule of the Court and award decree was issued thereafter. The main plea of the appellant is that no notice under sections 14(1) and (2) of the Arbitration Act, 1940 had ever been served upon them. In this regard, we would like to reproduce herein below the relevant provision of Section 14(1) and (2) of the Arbitration Act, 1940 for ready reference:

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 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.

9. From bare reading of section 14(1) of the Arbitration Act, it is clear that the object of section 14(1) and (2) of the Arbitration Act, 1940, relating to notice of making of the award is only to inform the parties that the award has been made so that they may file an application for the filing of the award. The object of Section 14(2) of the Arbitration Act, 1940 is to serve the notice as to enable the parties to file their objections, if any, within prescribed time of 30 days or to move the Court for setting aside the award. Since the award was announced/passed by the learned Arbitrator in presence of the parties, therefore, the appellant cannot now claim in our view, that he was unaware of the award. Being fully vigilant from passing the award it was incumbent upon the appellant to approach the Court concerned for filing application for setting aside the award or objections, if they had any grievance against the award. We therefore, do not find any illegality or irregularity in the impugned order and the Award Decree passed by the learned Single Judge. Therefore, the C.M.A. No.4151/2016 for condonation of delay in fling appeal is hereby dismissed and the appeal filed by the appellant is also dismissed having no merits. There shall be no order as to the costs. MH/M-62/Sindh Appeal dismissed.