TMI Blog1961 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 50, i.e., more than one year after the death of Rajwanti, the appellant gave a notice to the arbitrators requesting them to proceed with the reference and give the award at an early date. On October 1, 1950, i.e., within 4 months from the date of the notice, the arbitrators made an award and it was duly registered. On January 23, 1951, the appellant filed an application under Sections 14(2) and 17 of the Act in the Court of the Civil Judge, Banaras, praying that the said award be filed and be made a rule of the court. The said application was registered as a suit; the appellant was placed in the position of plaintiff and the respondents in that of defendants. The respondents raised various objections to the said application; one of the objections, with which only we are now concerned, was that the award was not given within the time fixed by law. The learned Civil Judge rejected the objections and made a decree in terms of the award. On appeal, the High Court came to the conclusion that the award was made after the expiry of the period of limitation, and on that finding set aside the decree of the learned Civil Judge and dismissed the suit with costs. Hence this appeal. 3. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the first alternative would serve the purpose. On that construction, the only purpose it serves is that a party may force the pace by calling upon the arbitrators, who are delaying to enter on the reference, to act expeditiously. If the Legislature intended to give such a limited scope to the said rule, it would not have used two different sets of words in the two alternative clauses and different starting points for computing the period of four months. The word 'act' is certainly more comprehensive than the words 'enter on the reference.' The distinction between the said two sets of words has been brought out with clarity in Baring-Gould v. Sharpington Combined Pick and Shovel Syndicate [(1899) 2 Ch. D. 80.]. There, on January 11, 1898, one of the parties served on the arbitrators a notice in writing addressed to both the arbitrators requiring them to appoint an umpire; on February 15, 1898, the arbitrators appointed an umpire; the arbitrators did not make any award but on April 30, 1898, the umpire made his award; it was contended that by the notice requiring the arbitrators to appoint an umpire, they had not been 'called on to act' within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trators entered on the reference, nor was it made within three months after having been called upon to act by notice in writing by one of the parties to the submission. Piggott and Walsh, JJ., held that the two clauses were alternative in the sense that when no reference was entered upon at all then the time ran from the notice calling upon the arbitrators to act, and that if they had entered on the reference, they had three months from that moment for making their award. In that case, the notice to act was given before the arbitrators entered upon the reference, and as the award was made within the prescribed time from the date of entering upon the reference, though beyond the prescribed time from the notice asking the arbitrators to act, they held that the award was within time on the basis of the second alternative. In neither of the two cases the question that now falls to be considered had directly arisen, namely, whether, if the notice to act was given subsequent to the arbitrators entering on the reference, the period should be computed from the former date or from the latter date. That question arises in this case. 10. The said discussion leads us to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tices which may lead to the same result sought to be avoided by it. The argument is that if one of the parties gives a notice to act, it gives the arbitrators 4 months from that date to act and if before the expiry of the 4 months from that date of notice another notice is given, they will get another lease of life and so on indefinitely. Though there is some plausibility in the criticism, it is answered by our confining the right to give notice by a party to the period of four months from the date the arbitrators entered upon the reference. Nor the apprehension that a party may go on giving number of notices to act within the said 4 months from the date of the arbitrators entering upon the reference, each notice giving a fresh period of 4 months, has any basis. A notice to act can only be given when an arbitrator is not acting i.e., he has refused or neglected to discharge his duty. Therefore, every notice cannot give a fresh period unless in fact the arbitrators refused or neglected to act before such notice is given. The legal position may be formulated thus : (a) a notice to act may be given before or after the arbitrators entered upon the reference, (b) if notice to act is giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to the other arbitrator to appoint another person arbitrator in his place. The appointment of arbitrators, would be complete after the fresh arbitrator has been appointed. The proceedings taken previously would have come to an end as infructuous. The period of four months, therefore, would start in accordance with the provisions of r. 3 of the First Schedule and not from the date on which any party had called upon the remaining arbitrators to appoint an arbitrator in the place of one who had refused to act. Sections 8 and 9 of the Arbitration Act provide for the appointment of an arbitrator by the Court in place of such defaulting arbitrator. 19. The view that the fresh period of limitation will begin to start from the date of the notice if it be served within the period of four months which had begun to run from the date on which the arbitrators entered on the reference, would mean that any of the parties will be able to extend the period by just giving a notice, to the arbitrators within the original period of four months. Such an effect of a unilateral notice could not have been intended by the Legislature. If one can extend the time - the original period of four mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuance of the reference arises out of the reference made by the parties and is not dependent on the period during which they ought to make the award. So long as the power vested in them to decide the dispute between the parties is not withdrawn, they continue to be competent to act on the reference in expectation that the period for making the award would be extended by the Court. 23. I also do not consider it necessary to decide in this case as to when arbitrators can be said to enter on the reference or what is meant by 'their being called upon to act' by notice under r. 3 of the First Schedule. I simply not that I agree with the view expressed in Iossifoglu v. Coumantaros [(1941) 1 K.B. 396.] that arbitrators enter upon a reference as soon as they have accepted their appointment and have communicated with each other about the reference. This is a stage earlier than their starting the proceedings in the presence of the parties or under some peremptory order compelling them to conclude the hearing ex parte. 'Calling upon the arbitrators to act' does include asking the arbitrators to enter on the reference but may also include asking them to do anything in conn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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