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First Appeal from order No 24 of 1955, decided on 28th November, 1955, of Gul Muhammad Qureshi, Civil Judge 1st Class, Lahore, dated the 10th March 1955.

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S. 14 (1)-Does not apply to arbitration in pending suit-Notice of making and signing of award unnecessary. Where an award has been made upon arbitration in a pending suit, it is wholly unnecessary for the arbitrator to give notice to the parties of its making and signing; the provisions of section 14 (1) cannot, by virtue of the provisions of section 25 of the Act, be made applicable to such arbitration.

Palanivandi Chetti and others v. Kandappa Coundan A I R 1951 Mad. 281 and Saroj Bala Bose v. r7atindra Nath Bose 45 Cal. L J 458 ref.

Palaparthi Venkataramayya and others v.. Duggina Papayya and others A I R 1943 Mad. 718 distinguished.

Rangasami v. Muthusami I L R 11 Mad. 144, Chatarbuj. Das v. Ganeshram I L R 20 All. 474 and Ranjit Chandra v Bissay Ram A I R 1926 Cal. 1018, not in point.

(2)-Notice served on pleader of party-Valid-Civil Procedure Code (V of 1908), S. 141. O. 111, r. 3 (1).

The notice under subsection (2) of section 14 given to the pleader of the party is a perfectly valid notice and satisfies the requirements of that subsection.

Sham Singh and others v.Vir Bhan and others A I R 1942 Lah. lOZ, Gayan Singh v. Harbilas and another A I R 1930 All. 711 and Ranjit Chandra v. Bissay Ram A I R 1926 Cal. 1018 rel.

Hari Chand v. Lachhman Das and others A I R 1948 E. Pb. 11 ref.

Holaram Verhomal v. Governor-General of India-iii-Council A I R 1947 Sind 145 and Chatarbuj Das v. Ganesh Ram I L R 20 All. 474 dissented from.

(c) Award- Objection-Not raised in trial Court nor allowed to be raised in appeal.

An objection to an award not raised before the trial Court must be deemed to have been waived and should not be allowed to be taken in appeal for the first time.

Hari Shankar v. Mst Amraoti A I R 1944 Lah. 280 rel.

(d) Award-Granting future interest-Decree according to award-Held unobjectionable in view of Court's own power to grant interest-

Arbitration Act (X of 1940), S. 29.

Grant of future interest by the award was held to be unobjectionable in view of the provisions of section 29, Arbitration Act. Assuming that the arbitrator had exceeded his authority in granting future interest, the portion of the award relating to such interest was obviously separable it was open to the trial Court to set aside that portion of the award, and itself award interest under section 29, Arbitration Act. The Court, in making portion of the award relating to payment of future interest, a part of the decree, must, in the circumstances of the case, be deemed to have adopted the direction as to interest in the exercise of its own powers under section 29.

Ghulam Abbas Jaffery for Appellant.

A. R. Sheikh for Respondent.

.-This appeal arises out of a suit by the respondent against the appellant for dissolution of partnership and rendition of accounts. The plaintiff-respon dent alleged in his plaint that some time in the beginning of 1948, he entered into a partnership with the defendant appellant for the purposes of doing the business of export of salt to India. He contributed Rs. 30,000 in cash and all the permits obtained by the defendant in his name for export of salt were to be considered as those of the part nership. The plaintiff himself remained a sleeping partner and all the business was to be done by the defendant who was also solely responsible for maintaining the accounts. The partnerships was to be terminated "at will" of either party. The defendant pleaded that the partnership was only for the export of 20 wagons and not "at will"; that there was no specific agreement making him responsible for the keeping of the accounts but that he was nonetheless ready to render accounts, and that the partnership had in fact incurred a loss of about Rs. 11,000.

After an abortive attempt to get the subject-matter of the suit settled by the arbitration of one Dilawar Hussain the suit was referred through the Court to the arbitration of Mr. Ayub Ahmad Makhdumi, Advocate, on the 3rd of November 1954. The arbitrator filed his award on the 13th of December 1954, the operative portion of which is as follows :-

"I, therefore, give an award of Rs. 8,000 in favour of the plaintiff against the defendant. The said amount to be paid by the defendant to the plaintiff in three equal installments. The first installment shall be paid on the 31st of January 1955, the second installment on the 31st of March 1955, and the third installment on the 31st of May 1955. In case of default in payment of any single installment, the entire amount shall become immediately recoverable, and the defendant shall further pay future interest at the rate of 3 per cent. per annum on the remaining balance from the date of default till the date of realisation."

On the 11^th of January 1955, the defendant filed objections to the award which were rejected by the learned Civil Judge, Lahore, by his order dated the 10^th of March 1955, and a decree was passed in accordance with the terms of the award.

The first point argued by the learned counsel for the defendant-appellant is 'that the award and the decree passed on its basis cannot be upheld because the arbitrator did not give his client notice in writing of the making and signing of the award as required by subsection (1) of section 14 of the Arbitration Act. Mr. A. R. Sheikh, who ably presented the case of the respondent with his usual thoroughness, replied that inasmuch as section 14 figures in Chapter II of the Act, which relates to arbit ration without intervention of a Court, and the present arbitration was in a suit, which is dealt with in Chapter IV of the Act, the provisions of section 14 are inappli cable to the present case unless it can be shown that the provisions of section 14 "can be made applicable . . . . to arbitration" under the fourth Chapter. He contended with reference to the scheme of the Arbitration Act and Articles 158 and 178 of the Limitation Act, that the pro visions of section 14 and subsection (1) are not properly applicable, and ought not to be applied, to arbitrations in pending suits under Chapter IV of the Act.

The first case relied by the learned counsel for the appellant is a Single Bench decision of the Madras High Court and is reported as Palaparthi Venkataramayya and others v. Duggina Papayya and others. (1) In that case the question raised was whether the failure of the arbitrators to give notice of the making of the award as required by the Act is a material irregularity which vitiates the decree. The precise question of law raised was not answered by the learned judge. He founded his con clusion upon considerations of justice and convenience as applicable to the facts of that case, as would appear from the following sentence which concluded the discussion on the subject :-

"I am therefore not at all sure that the failure to comply with the mandatory provisions of the Arbitration Act did not lead to an injustice in preventing the defendants from raising objections to the award."

The learned judge referred to a ruling reported as Saroj Bala Bose v. Jatindra Nath Rose (2) where the learned judges had held that the proceedings before them were not void and that the irregularity in giving notice was not a serious one. This case obviously does not decide that the failure to give notice vitiates either the award or the decree, and, on the other hand, it seems to support the contrary proposition that such failure is not necessarily fatal. The learned judge also relied on the rulings in Rangasami v. Muthusami (I L R 11 Mad. 144) Chatarbuj Das v. Ganeshram (I L R 20 All. 474) and Ranjit Chandra v. Bissay Ram (A I R 1926 Cal. 1018) for the proposition that the provisions with regard to notice were mandatory and if they were not complied with no valid decree could be passed. All these three cases, however, relate to the notice to be given by the Court under section 14 (45 C L J 458) yvhen an award has been filed; they are not relevant to the question calling for decision in this case, namely, whether notice by the arbitrator under section 14 (A I R 1943 Mad. 718) should be given when an award has been made under Chapter IV of the Arbitration Act.

Learned counsel for the respondent relied on certain obser vations made by a learned judge of the Madras High Court in a case reported as Palanivandi Chetti and others v. Kandappa Coundan (A I R 1951 Mad. 281). The learned judge remarked: "That Chapter I V is comprehensive and complete and covers all references to arbitrations in pending suits and Chapter II does not apply to such references by its own force". This is obvious from the provisions of section 25 itself, but the question still remains whether the provisions of subsection (A I R 1943 Mad. 718) of section 14 can of cannot be made applicable to arbitrations in suits. No authority covering the point has been cited on either side at the bar and, therefore, the question has to be resolved upon a consideration of the relevant statutory provisions.

Section 14 appears in Chapter II which relates to arbitration without intervention of the Court. By subsection (1) it provides for a notice in writing by the arbitrator to the parties of the making and signing of the award, and by subsection (2) it makes it incumbent upon the Court to give notice to the parties of the filing of the award. The Court has to give notice to the parties of the filing of the award in order to enable them to file objections against it should they so desire. Article 158 of the Limitation Act relates to an application to set aside then award or to get it remitted for reconsideration. The period of limitation is thirty days, and it commences from the date of service of the notice of filing of the award. As there is no suit pending in the Court the parties cannot have notice of the filing of the award, which shall enable them to file objections, without notice by the Court. Notice under subsection (1) by the arbitrators of the making of the award is necessary in order to enable the parties, should they so desire, to apply for the filing of the award in Court. Article 178 of the Limitation Act allows the period of ninety days for such an application from the date of service of the notice of the making of the award. But is notice of the making of the award at all necessary where the arbitration has taken place in a pending suit It is obviously not necessary for the purpose of enabling the parties to apply for the filing of the award. No such application is required, because the award has got to be filed in* Court in accordance with section 23 of the Arbitration Act without an application by either party to that effect. In such a case all that the parties need know is the actual filing of the award. The award has got to be filed in accordance with section 23 of the Arbitration Act within the time fixed by the Court and in case it is not filed within time the parties have to look to the Court, and not to the arbitrators for the next -step in the proceedings. Where an award has been made during the course of an arbitration in a suit the only matter with which the parties are concerned is whether it should stand or fall (in other words whether they should raise any objection to it); and, therefore, the only notice they require in this connection, is of the filing of the award under subsection (2) of section 14. I am, therefore, of the opinion that where an award has been made consequence upon arbitration in a pending suit, it is wholly unnecessary for the arbitrator to give notice to the parties of its making and signing; and, consequently, the provisions of subsection (1) of section 14 cannot, by virtue of the provisions contained in section 25 of the Act, be made applicable to such arbitration.

The next point urged by Mr. Jaffary on behalf of the appellant was that inasmuch as the notice under section 14 (2) was not served on the parties themselves but on their pleaders it was irregular and ineffective. I find no substance in this contention. It is admitted that notice of the filing of the award was given to the pleaders of both the parties on the 13th of December 1954, and their signatures in acknowledgment of the notice were obtained. Subsection (1) of section 14 requires the notice to be in writing, but the notice under subsection (2) need not necessarily be in A la writing. The ruling reported as Hari Chand v. Lachhman Das and others (1) goes to the extent of laying down that such a notice may be even inferred from the order of Akl the Court. Section 141 of the Code of Civil Procedure H makes the procedure provided by that Code applicable to all proceedings in the Courts of civil jurisdiction. Accord ing to sub-rule (A I R 1948 E. Pb. 11) of rule 3 of Order III of that Code, pro cess served on the recognised agent of a party is, in the absence of a direction by the Court to the contrary, as effectual as if it had been served on the party in person. A Division Bench ruling of this Court reported as Sham Singh and others v. Vir Bhan and others (A I R 1942 Lab. 102) exactly covers the point. The ruling in Gayan Singh v. Harbilas and another (AIR 1930All.711) is to the same effect. The observation in Ranjit Chandra v. Bissay Ram (4). "There is nothing to show that they (the pleaders) were aware that this arbitration award has been filed" also supports this conclusion.

Learned counsel for the appellant relied on a case reported as Holaram Verhoram v. Governor-General of India-in-Council (A I R 1947 Sind 145). In this case notice of the filing of award was served on the parties' pleaders and it was held that the statutory provisions, relating to service of notice of the filing of the award upon a party, cannot be dis pensed with and that a party can ignore the fact that his advocate has been served with the notice. The learned judge has not given any reasons for the conclusion that the expression "parties" under section 14 of the Arbitration Act does not include their pleaders ; nor has he considered the relevant provisions of the Code of Civil Procedure referred to by me. The rulings to the contrary were either not brought to the notice of the learned judge or not referred to by him. The ruling in Chatarbuj Das v. Ganesh Ram (I L R 20 All. 474) relied on by the learned judge is quite beside the proposition of law laid down by him, because in that case no notice at all had been given either to the party or to its pleader. The distinction was pointed out to the learned judge but he dismissed it with the observation: " I do not think that it makes any difference in principle". With all respect I am unable to hold that the principle laid down in the Sind Case is sound. I, there fore, hold that the notice under subsection (2) of section 14 given to the pleader of the party is a perfectly valid notices given satisfies the requirements of that provision.

The last point argued by Mr. Jaffery was that the arbitrator acted in excess of his authority by awarding interest on the amount found by him to be due to the plaintiff from the date of default till the date of realisation and that to that extent the award, and the decree, was bad. This objection (as indeed the two other objections just considered by me) was not raised in the lower Court. It has been held by this Court in Hari Shanhar v. Mst. Amraoti (A I R 1944 Lah. 280) that the consideration by an appellate Court of an objection to the legality of an award which has not been raised before the trial Court was a material irregularity and in permitting such an objection to be raised for the first time the appellate Court must be held to have acted in the exercise of its jurisdiction with material irregularity. Considering that the main job of an arbitrator is to bring the dispute between parties to a speedy and final conclusion, the rule that an objection to the award not taken before the lower Court must be deemed to have been waived and ought not to be allowed to be urged in appeal for the first time appears to be sound in principle. I also do not see any force in this contention on merits. Assuming that the arbitrator had exceeded his jurisdiction, the impugned portion of the award was obviously separable and it was open to the lower Court to have set aside that part of the award and proceed to exercise its own power under section 29 of the Arbitration Act. This section authorises the Court, where the award is for the payment of money, to order the payment of interest from the date of the decree at such rate as it deems reasonable. The Court in making this portion of the award a part of its decree must, in the circumstances of this case, be deemed to have adopted it in the exercise of its own powers under section 29 of the Arbitration Act. No other point was pressed in support of this appeal and I hereby dismiss it with costs.

A. H. Appeal dismissed.

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