JUDGMENT
Devinder Gupta, J.
(1) The petitioner society is aggrieved against the order passed on 27.3.1995 by the Presiding Officer, Delhi Co-operative Tribunal, Delhi (Annexure-(X) allowing the appeal of respondent No. 4 and thereby setting aside the award dated 14.9.1994 passed by the Deputy Registrar, Co-operative Societies, Delhi and thereby remanding the case Registrar, Co-operative Societies for fresh decision.
(2) Respondent No. 4 had preferred an appeal under Section 76 of the Delhi Co-operative Societies Act, 1972 (referred to as “the Act”) before the Tribunal, against the award dated 14.9.1994 passed by the Deputy Registrar (Arbitration) in exercise of his powers under Section 60 of the Act. Without going into the merits of the controversy, which had been raised in the appeal, the Tribunal held the award to be without jurisdiction and nullity. It was held to have been passed after the expiry of the period of three months as prescribed in Rule 89(1) of the Delhi Cooperative Societies Rules, 1973 (referred to as “the Rules”). The Tribunal also observed that there was nothing on record to show that any extension of time was sought by the Arbitrator. Consequently the award was set aside and the case was remanded for fresh decision in accordance with law, which decision is under challenge now.
(3) We have heard learned Counsel for the parties. Sub-rule (1) of Rule 89 of the Delhi Co-operative Societies Rules, 1978 as amended through notification dated 9.9.1988, vide Clause 16 of the Amendment Rules, 1988 reads as under :
“(1)The Arbitrator shall make a memorandum of the statement of the parties who attended and of such witnesses as are examined and upon the evidence so recorded and after considerations of any documentary evidence produced by either party shall make an award in accordance with justice, enquiry and good conscience, he shall record his award in writing, sign and date it within a period of three months and shall communicate to it the party concerned. In case the Arbitrator is unable to decide the case and make the award within three months he shall seek extension of the period in writing from the Registrar by making an application to him.
xxx xxx xxx xxx”
(4) It may be noticed that the Rule nowhere stipulate that on failure of the Arbitrator to pass an award within a period of three months, he will cease to have any jurisdiction on the reference made to him under the provisions of the Delhi Cooperative Societies Act. The Rule nowhere lays down the date of commencement of the period of three months for making of the award, namely, whether it is from the date of entering upon reference or from the date of closure of evidence by the parties. Once a reference is lawfully made on disputes, the law requires that the same must be answered by the Arbitrator. It cannot be left unanswered.
(5) The Act nowhere prescribes any time-limit for making of the award. Only Sub-rule (1) of Rule 89 has fixed the time-limit for making the award. Power has also been conferred on the Registrar to extend the time for making of award. Extension, if any, has to be obtained by the Arbitrator himself by making an application in that behalf.
(6) The Arbitrator in the instant case entered upon reference on 18.1.1994. After the evidence was over, arguments were heard, which concluded in the month of June, 1994 and the award was made on 14.9.1994. Admittedly period of three months had expired on the date when award was made. During the course of proceedings before the Arbitrator none of the parties objected to the proceedings or raised the question of the time-limit. Though respondent No. 4 in the appeal did take up the ground of making of the award after the expiry of the period of three months and claimed that the award is nullity but the said ground was not pressed during the course of arguments. Irrespective of the fact that the ground was not pressed and none of the parties proceeded to challenge the award on that ground, the Tribunal of its own proceeded to observe that in the absence of any extension having been sought, the award was bad. On that ground the award was set aside.
(7) We are of the view that the Tribunal was not justified in making its observations that in the absence of any extension, the award though of might otherwise be valid, would become nullity or that the same would be without jurisdiction. At the most, it might be a case for granting ex post facto extension, which, in the facts and circumstances, the Tribunal ought to have granted and proceeded to dispose of the appeal on merits rather than setting aside the award and remanding the case for fresh decision. Conduct of the parties is a major factor to waive the extension of time, which ought to have been taken note of. None of the parties objected before the Arbitrator. Even before the Tribunal, the party taking objection gave it up. The time in these circumstances will be deemed to have been extended. Even in such like situation when award is made by an Arbitrator beyond the prescribed limit under the provisions of the Arbitration Act, the same was taken by the Supreme Court in Nagar Palika Mirzapur v. TheMirzapurElect. Supply Co. Ltd., 1990 S.C. 2273 to have been extended due to the conduct of the parties. In view of the conduct of the parties, the award made by the Arbitrator (Deputy Registrar, Administration) in the instant case also will be deemed to have been passed within the extended period of limitation.
(8) Resultantly, the writ petition is allowed. The impugned order of the Tribunal is set aside with a direction to the Tribunal to proceed to dispose of the appeal on merits in accordance with law. Parties are directed to appear before the Tribunal on 29.9.1997.
