{"id":71153,"date":"1993-06-21T00:00:00","date_gmt":"1993-06-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/food-corporation-of-india-and-ors-vs-e-kuttappan-on-21-june-1993"},"modified":"2018-09-21T08:28:02","modified_gmt":"2018-09-21T02:58:02","slug":"food-corporation-of-india-and-ors-vs-e-kuttappan-on-21-june-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/food-corporation-of-india-and-ors-vs-e-kuttappan-on-21-june-1993","title":{"rendered":"Food Corporation Of India And Ors vs E.Kuttappan on 21 June, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Food Corporation Of India And Ors vs E.Kuttappan on 21 June, 1993<\/div>\n
Equivalent citations: 1993 AIR 2629, \t\t 1993 SCR (3)1028<\/div>\n
Author: M Punchhi<\/div>\n
Bench: Punchhi, M.M.<\/div>\n
           PETITIONER:\nFOOD CORPORATION OF INDIA AND ORS.\n\n\tVs.\n\nRESPONDENT:\nE.KUTTAPPAN\n\nDATE OF JUDGMENT21\/06\/1993\n\nBENCH:\nPUNCHHI, M.M.\nBENCH:\nPUNCHHI, M.M.\nAHMADI, A.M. (J)\n\nCITATION:\n 1993 AIR 2629\t\t  1993 SCR  (3)1028\n 1993 SCC  (3) 445\t  JT 1993 (4)\t 90\n 1993 SCALE  (3)49\n\n\nACT:\n%\nArbitration Act. 1940:\nS.14-Award-Limitation  for filing objection-Held, period  of\nlimitation  for\t filing objection begins from  the  date  of\ncourt's\t accepting  placement of award before it so  far  as\nparty, placing award before court is concerned.\n\n\n\nHEADNOTE:\nThe respondent filed two suits against the appellant-, under\ns.  20\tof the Arbitration Act, 1940 for appointment  of  an\narbitrator.   The arbitrator was appointed who made  awards.\nOn respondent's request the Arbitrator forwarded the  awards\nto  former's counsel who in turn filed the same in Court  on\n25.10.1988  directed issuance of notice to counsel  for\t the\nparties\t  for  7.11.1988.  and\taccordingly  intimated\t the\nappellants.   The  court on 3.11.1988 directed\tissuance  of\nnotice\tto  counsel  for  the  parties\tfor  7.11.1988.\t The\nrespondent  filed objections under s. 14 (2) of the  Act  on\n5.12.1988 computing the period of limitation from 7.11.1988.\nAppellants'   plea   of\t limitation   against\trespondent's\nobjections  was rejected by the trial court.  The  revisions\nfiled  by the appellants were dismissed by the\tHigh  Court.\nThe appellants filed the appeals by special leave.\nThe  appellants contended that though under s. 14(2) of\t the\nAct notice of filing of the award was required to he sent by\nthe  Court, with the placing of the award before  the  court\nand  court's accepting its placement into it  on  25.10.1988\nthe  factual filing of the award had been made and  sequally\nnotice\tto  the\t respondent through  his  counsel,  and\t the\nsubsequent  order  dated  3.11.1988  directing\tnotice\t for\n7.11.1988 was of no consequence.\nAllowing  the appeals, and setting aside the orders  of\t the\nHigh Court and the trial Court, this Court\nHELD  :\t 1.1. The period of limitation for the\tpurposes  of\nfiling\tthe  objection,\t in so far  as\tthe  respondent\t was\nconcerned,  had begun on October 25,1988 (i.e. the  date  of\nplacing the award before the court by respondent's  counsel)\nand,  therefore, the objections filed by the  respondent  on\nDecember\n1029\n6, 1988 were barred by time, those having been filed  beyond\nthe prescribed period of thirty days.\n1.2.The mute language inherent in the action of the court in\naccepting' the placement of the award into it on  25.10.1988\ndid  convey  to the party placing the award before  it,\t the\nfactum\tof  the award being filed in court.  The  mere\tfact\nthat  at a subsequent state, the court issued notice to\t the\nparties\t informing them of the filing of the award in  court\nfor the purpose of anyone to object to the award being\tmade\nthe rule of the court is an act of the court which cannot in\nlaw prejudice the rights of the parties\nIndian\tRayon  Corporation Lid. v. Raunag and  Company\tPvt.\nLtd.<\/a>  [1988]  4 SCC 31 & Nilkantha  Shidramappa\t Ningashetti\nv.Kashinath  Somanna  Ningashetti and others. [1962]  2\t SCR\n551, relied on.\nHansanalli  Abdallai Malabari v. Shantilal Bhaidas  Marfatia\nand  other AIR [1962] Gujarat 317 & The State of  Bihar\t and\nothers v. Liason and Contracts and, another, AIR 1983  Patna\n101, referred to.\n2.1.The\t obligation of filing the award in court is a  legal\nimperative  on the Arbitrator.\tThe agency of the  party  or\nits  lawyer  employed  by the, Arbitrator  for\tthe  purpose\nnormally  need\tbe specific but can otherwise  be  deducted,\ninferred  or implied from the facts and circumstances  of  a\ngiven case.  It needs, however, shedding the impression that\nwhen a lawyer files the, award in court when given to him by\nthe Arbitrator his implied authority to do so, shall not  be\npresumed to exist.\n2.2.In\tthe instant case, it was the respondent who  by\t his\nletter\thad requested the Arbitrator to send to\t his  lawyer\nthe  award  for\t filing\t it  into  court  and  to  whom\t the\nArbitrator  obliged  on such request.  When  the  Arbitrator\nchose to accede to the request of the respondent in specific\nterms,\t he   by  necessary   implication   authorised\t the\nrespondent's  counsel  to file the award and  the  connected\npapers in court on his behalf.\nKumb Mawji v. Union of India<\/a> [1935] SCR 878, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 3139-40 of
\n1993.\n<\/p>\n
From the Judgment and Order. dated 4.1.90 of the Kerala High
\nCourt in
\n1030<\/span>
\nC.R.P Nos. 1520 and 1527 of 1989.\n<\/p>\n
B.   Sen  Vivek Gambhir, Surinder Karnail and  S.K.  Gambhir
\nfor the Appellants.\n<\/p>\n
M.P. Vinod and M.K.D. Namboodiri for the Respondent.
\nThe Judgment of the Court was delivered by
\nPUNCHHI.  J. Leave granted.\n<\/p>\n
These  two appeals are directed against the common  judgment
\nand  order sated January 4, 1990 passed by a learned  Single
\nJudge  of the Kerala High Court Ernakulam in Civil  Revision
\nPetitions No. 1520 and 1527 or 1989.\n<\/p>\n
The  facts giving rise thereto are few and meaningful.\t The
\nrespondent  filed two suits against the\t appellants  praying
\nunder Section 20 of the Arbitration Act hereinafter referred
\nto  as\t‘the Act’) for an appointment of  an  Arbitrator  to
\nresolve\t the disputes said to have arisen out  of  contracts
\ninter-se.   One B.S. Hegde was appointed as  an\t Arbitrator.
\nHe made awards on October 3,1988.  On that date itself,\t the
\nArbitrator on his own had given notice to the parties  under
\nSection 14(1) of the making and signing of the a wards.\t The
\nrespondent,  on October 4, 1988, requested he Arbitrator  by
\nmeans  of a letter to forward the awards to his counsel\t for
\nfiling\t,he  same in the Court.\t On October  12,  1988,\t the
\nArbitrator forwarded the awards and the entire record to the
\nadvocate of the respondent by a forwarding letter with\tcopy
\nof  the\t letter\t to the appellant.   On\t October  25,  1988,
\nrespondent’s  counsel  filed  the awards in  the  Court\t and
\nintimated  to  the appellant to that effect on\tOctober\t 26,
\n1988.  Later the Court per its order dated November 3, 1988,
\ndirected the issuance of notice to the counsel appearing for
\nthe  parties  for November 7, 1988.   The  respondent  filed
\nobjections  under  Section 14(2) of the Act on\tDecember  5,
\n1988,  computing  the period of limitation  of\tthirty\tdays
\nunder  Article 119 of the Limitation Act 1963 from  November
\n7,  1988,  the date for which counsel for the  parties\twere
\nsummoned  by  the  court to be told of\tthe  filing  of\t the
\nawards.\t  The  appellants  raised in  defence  the  plea  of
\nlimitation   against   the   respondent’s   objections\t and
\nconversely  prayed  for making the awards the  rule  of\t the
\ncourt.\t The  trial  court  did not  find  favour  with\t the
\nobjections  of\tthe  appellant and  proceeded  to  hear\t the
\nobjections  of the respondent against the awards.  The\tHigh
\nCourt declining to interfere in the two revisions separately
\nfiled  by  the\tappellants to press  for  the  objection  of
\nlimitation  has led the appellant Food Corporation of  India
\nto come before us in these appeals.\n<\/p>\n
1031<\/span><\/p>\n
Sub-section (1) of Section 14 of the Act says that when\t the
\nArbitrator or umpire have made the award, they shall sign it
\nand  shall  give notice in writing to, the  parties  of\t the
\nmaking\tand  signing thereof and of the amount of  fees\t and
\ncharges\t payable  in respect of the arbitration\t and  award.
\nSub-section  (2)  provides  that the  Arbitrator  or  umpire
\nshall,\tat  the\t request of any\t party\tto  the\t arbitration
\nagreement  or any person claiming under such party or if  so
\ndirected  by  the  Court and upon payment of  the  fees\t and
\ncharges\t due in respect of the arbitration and award and  of
\nthe costs and charges of filing a the award, cause the award
\nor  a signed copy of it, together with any  depositions\t and
\ndocuments which may have been taken any proved before  them,
\nto  be\tfiled in Court, and the Court shall  thereupon\tgive
\nnotice\tto the parties of the filing of the award.   Article
\n119 of the limitation At, 1963 provides that an\t application
\nunder the Arbitration Act, 1940, for setting aside the award
\nor getting an award remitted for reconsideration, the period
\nof limitation is 30 days computable from the date of service
\nof  the notice of the filing of the award.  Now what do\t the
\nwords “give notice” mean in the context, has been subject of
\njudicial exponance as also to the effect of filing of  award
\nin  Court  by a party (instead of the  Arbitrator)  with  or
\nwithout the express or implied authority of the\t Arbitrator.
\nFor  the former, take the cases of [1962] 2 SCR 55-[1988]  4
\nSCC  3 1, and AIR (1962) (Gujarat) 317, and for\t the  latter
\ntake the cases of [1953] SCR 879 and AIR 1983 Patna 101.
\nIn   the  case\tof  Nilkantha  Shidramappa  Ningashetti\t  v.
\nKashinath Somarna Ningashetti and others<\/a> [1962] 2 SCR 55  1,
\nthe Arbitrator had filed the award in court on February\t 18,
\n1948  and three days later on February 21, 1948,  the  Civil
\nJudge\tadjourned  the\tmatter\t“for  parties  say  to\t the
\nArbitrator’s  report”, to March 22, 1948.  The\tpoint  which
\nfell  for consideration was that when no specific notice  in
\nwriting had been issued by the court under Section 14 of the
\nAct  to\t the  parties,\twhere  from  shall  the\t period\t  of
\nlimitation  be reckoned for filing an objection against\t the
\naward.\t This  Court observed on page 555 of the  report  as
\nfollows:-\n<\/p>\n
\t      “Sub-section   (1)  of  Section  14   of\t the
\n\t      Arbitration Act, 1940 (X of 1940)requires\t the
\n\t      arbitrator or umpire to give notice in writing
\n\t      to  the parties of the making and\t signing  of
\n\t      the  award.  Sub-section (2) of  that  section
\n\t      requires\tthe Court, after the filing  of\t the
\n\t      award,  to give notice to the parties  of\t the
\n\t      filing  of the award.  The difference  in\t the
\n\t      provisions   of  the  two\t sub-sections\twith
\n\t      respect to the giving of notice is significant
\n\t      and  indicates clearly that the  notice  which
\n\t      the  Court  is to give to the parties  of\t the
\n\t      filing  of the award need not be a  notice  in
\n\t      writing.\tThe notice can be given orally.\t  No
\n\t      question\tof the service of the notice in\t the
\n\t      formal   way  of\tdelivering  the\t notice\t  or
\n\t      tendering\t it  to the party can arise  in\t the
\n\t      case of a notice given
\n\t      1032<\/span>
\n\t      orally.  The communication of the\t information
\n\t      that  an\taward has been filed  is  sufficient
\n\t      compliance  with\tthe  requirements  of\tsub-
\n\t      section (2) of Section 14 with respect to\t the
\n\t      giving of the notice to the parties  concerned
\n\t      about  the filing of the award.  Notice’\tdoes
\n\t      not   necessarily\t  mean\t ‘communication\t  in
\n\t      writing’.\t  ‘Notice’, according to the  Oxford
\n\t      Concise\t Dictionary,\tmeans\t intimation,
\n\t      intelligence, warning and has this meaning  in
\n\t      expressions like give notice, have notice’ and
\n\t      it also means ‘formal intimation of something,
\n\t      or instructions to do something and has such a
\n\t      meaning  in expressions like ‘notice to  quit,
\n\t      till further notice’.  We are of opinion\tthat
\n\t      the  expression give notice’ in sub-s. (2)  of
\n\t      s.  14, simply means giving intimation of\t the
\n\t      filing of the award. which certainly was given
\n\t      to  the  parties\tthrough\t their\tpleaders  on
\n\t      February\t21, 1948.  Notice to the pleader  is
\n\t      notice to the party, in view of r.5 of  0.111,
\n\t      Civil Procedure Code, which provides that\t any
\n\t      process  served  on the pleader of  any  party
\n\t      shall be presumed to be duly communicated\t and
\n\t      made  known  to  the party  whom\tthe  pleader
\n\t      represents  and,\tunless the  Court  otherwise
\n\t      directs,\t shall\tbe  as\teffectual  for\t all
\n\t      purposes as if the same had been, given, to or
\n\t      served on the party of person.”\n<\/p><\/blockquote>\n
In  the case of Indian Rayon Corporation Ltd. v. Raunag\t and
\nCompany Pvt. Ltd.<\/a>[1988] 4 SCC 31, this Court before applying
\nthe ration of Nilkantha’s case supra, analysed the facts  to
\nstate  that  the award therein had been filed  in  the\tHigh
\nCourt  on  February  4, 1977.  The  respondent\ttherein\t had
\naffirmed an affidavit on November, 29, 1977 stating that the
\naward  had been filed in the court on February 4,  1977\t and
\nmade prayer on that basis that a notice be issued and served
\non the appellant so that the judgment in terms of the  award
\ncould be passed.  The court then went on to hold in view  of
\nthe  facts  that the notice was served on the  appellant  on
\nFebruary  4,  1978 because on that date\t the  appellant\t had
\nacknowledged  by affidavit that the award had been filed  in
\nthe High Court of Calcutta but it had been filed in a  wrong
\ncourt.\tAccording to the appellant, he had later got  notice
\nof the filing of the award communicated to him by the  court
\non  which date he would have limitation reckoned.  But\tthis
\nCourt held that limitation was to be computed from  February
\n4,  1978 and on that basis objection to set aside the  award
\nmade  in  September  8, 1981 was held  to  be  time  barred.
\nRation of Nilkantha’s case was applied to reiterate that the
\nexpression’ give notice’ in Section 14(2)simply meant giving
\ninformation of filing of the award and such intimation\tneed
\nnot be given in writing and could otherwise be communicated.
\nIn  Hansanalli\tAbdulalli  Malabari  v.\t Shantilal   Bhaidas
\nMarfatia and other
\n1033<\/span>
\nAIR  19621  (Gujarat)  317, a learned Single  Judge  of\t the
\nGujarat\t High  Court has taken the view\t that  when  written
\nnotice\tis sent under Section 14 (2) of the Act, that  would
\nbe  the\t starting point for the period\tof  limitation.\t  If
\nthere  is no written notice then the date on which  oral  or
\ninformal or constructive intimation was given to the parties
\nby the Court of the fact that the award stood filed would be
\nthe  starting point for limitation’ The Court took the\tview
\nthat  since  there  cannot be two starting  points  for\t the
\nperiod\tof limitation, one from the date of oral  intimation
\nand  the  other\t from the date of  service  of\tnotice,\t the
\nlatter, if existing, would prevail over the former.
\nIn Kumbha Mawji v. Union of India,<\/a>[1953] SCR 878, this Court
\nhad  the  occasion to examine the question whether  a  party
\nfiling\tan  award  in court without  the  authority  of\t the
\nArbitrator  or the Umpire, could be said to have “filed\t the
\naward on his behalf” in terms of Section 14 (2) of the\tAct.
\nThis  Court took the view that where the award or  a  signed
\ncopy  thereof  is in fact filed into court by  a  party,  he
\nshould\thave before hand the authority of the Arbitrator  or
\numpire\tfor doing sc.  It was also ruled that it  cannot  be
\nassumed\t that  the mere mending over of the  awards  to\t the
\nparties necessarily implied the authority of the  Arbitrator
\nor of the Umpire to file the  into  Court on his behalf\t and
\nthat  such  authority  has to be  specifically\talleged\t and
\nproved.\t It was taken that the Arbitrator or the Umpire\t may
\nnot  in a given situation be aware that the award should  be
\nfiled  in to court by himself only or under  his  authority.
\nIn that case implied authority could not be proved.
\nA  Division  Bench of the Patna High Court in The  State  of
\nBihar  and others v. Liason and Contracts and  another,\t AIR
\n[1983]\t(Patna)\t 101,  overlooking the\tjudgment  in  Kumbha
\nMawji’s case supra, took the view that where the pleader  of
\nthe  defendants had filed the award in court and  the  court
\nhad  not issued separate notices of the filing of the  award
\nunder  Section\t14,  then  it  could  not  be  said  by\t the
\ndefendants  that they had no knowledge of the filing of\t the
\naward  merely because no separate notice had been issued  to
\nthem  under Section 14.\t No notice was held, required to  be
\nissued\tto any of the parties as the fact of filing  of\t the
\naward  must the deemed to be within their knowledge  on\t the
\nbasis that their own pleader had filed the award and,  hence
\nthe  objections\t if any should have, been filed\t within\t the
\nprescribed period of thirty days.\n<\/p>\n
Assimilating the legal thoughts afore-expressed and  applies
\nto the facts afore-stated. it becomes manifest that when the
\nArbitrator  had\t sent  the award and  other  papers  to\t the
\nrespondent through his counsel, unless he had authorised the
\nrespondent or his counsel on his behalf to the filing of  it
\nin  court, it cannot be assumed that when the respondent  or
\nhis counsel filed the award and other
\n1034<\/span>
\nconnected papers in court it was not done for and on  behalf
\nof  the Arbitrator. ,Instantly it was the respondent who  by
\nhis  letter  had  requested the Arbitrator to  send  to\t his
\nlawyer\tthe award for filing it into court and to  whom\t the
\nArbitrator  obliged on such request.  In our view, when\t the
\nArbitrator chose to accede to the request of the  respondent
\nin  specific terms, he by necessary  implication  authorised
\nthe respondent’s counsel to file the award and the connected
\npapers\tin  court on his behalf.  The law  enjoined  on\t the
\nArbitrator  to file the award in Court for which purpose  he
\ncould  even  be directed by the court.\t The  obligation  of
\nfiling\tthe  award  in court is a legal\t imperative  on\t the
\nArbitrator.  The agency of the party or its lawyer  employed
\nby the arbitrator for the purpose normally need be  specific
\nbut  can otherwise be deduced, inferred or implied from\t the
\nfacts and circumstances of a given case.  It needs, however,
\nshedding  the impression that when a lawyer files the  award
\nin  court  when given to him by the Arbitrator\this  implied
\nauthority to do so, shall not be presumed to exist.  It\t the
\ninstant case, no one raised the plea that the filing of\t the
\naward  in court by the respondent’s lawyer was\twithout\t the
\nauthority  of the Arbitrator and the courts below  were\t not
\nengaged\t on that question.  The matter was agitated  on\t the
\nbasis of knowledge of award from that fact.\n<\/p>\n
On the strength of afore-mentioned two cases of this  court,
\ni.e.  Nilkantha’s  case\t and Indian  Rayon’s  case,  it\t was
\nclaimed\t on behalf of the appellants that though  the  legal
\nrequirement  is that the notice be sent by the\tcourt,\tsome
\nother  act of the court is enough to foist awareness of\t the
\nfiling\tof  the\t award in court, where from  the  period  of
\nlimitation  was to commence.  Instantly, it was\t urged\tthat
\nwhen   the award had factually been placed before  the court
\nand the court had accepted its placement into it on October.\n<\/p>\n
25.  1988 itself, the factual filing of the award  had\tbeen
\nmade  and  sequally  notice to the  respondent\tthrough\t his
\ncounsel.  Even though the court had subsequently on November
\n3, 1988 issued notice for November 7, 1988, the former\tact,
\naccording  to the appellant, was enough compliance of  court
\nsending the notice and the latter act was of no consequence.
\nIt  does not lie in the mouth of the respondent to say\tthat
\nthough he filed the award in court through his counsel, with
\nor   without  the  implied  or\texpress\t authority  of\t the
\nArbitrator,  he did not have the corresponding knowledge  of
\nthe filing of the award, when the award was readily received
\nby  the\t court.\t  It  seems to us  that\t the  mute  language
\ninherent in the action of the court did convey to the  party
\nplacing\t the award before it, the factum of the award  being
\nfiled  in court.  The mere fact that at a subsequent  stage,
\nthe court issued notice to the parties informing them of the
\nfiling\tof the award in court for the purpose of  anyone  to
\nobject\tto the award being made the rule of the court is  an
\nact of the court which cannot in law prejudice the rights of
\nthe  parties.\tIf  once  it is taken  that  the  period  of
\nlimitation for the purposes   of filing the objection, in so
\nfar as the respondent was concerned, had begun on
\n1035<\/span>
\nOctober 25, 1988, the objections filed by it on December  6,
\n1988 were obviously barred by time, those having been  filed
\nbeyond the prescribed period of thirty days.  If this be the
\nlogical\t conclusion,  the appeals  shall  merit\t acceptance,
\nholding the objections. filed by the respondents to be\ttime
\nbarred.\t  Thus, so concluding, we allow these  appeals,\t set
\naside  the common judgment and order of the High Court,\t and
\nthat of the trial court, holding the objections filed by the
\nrespondents to be time barred.\tThe trial court will proceed
\nfurther\t in  these  matters in\taccordance  with  law.\t The
\nparties to bear their own costs.\n<\/p>\n
R.P.\t\t\t\t    Appeals allowed.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Food Corporation Of India And Ors vs E.Kuttappan on 21 June, 1993 Equivalent citations: 1993 AIR 2629, 1993 SCR (3)1028 Author: M Punchhi Bench: Punchhi, M.M. PETITIONER: FOOD CORPORATION OF INDIA AND ORS. Vs. RESPONDENT: E.KUTTAPPAN DATE OF JUDGMENT21\/06\/1993 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J) CITATION: 1993 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-71153","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFood Corporation Of India And Ors vs E.Kuttappan on 21 June, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/food-corporation-of-india-and-ors-vs-e-kuttappan-on-21-june-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Food Corporation Of India And Ors vs E.Kuttappan on 21 June, 1993 - 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