9911796707
TMI Blog1999 (11) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... f a claim made by the claimant for recovery of an amount of Rs. 13,92,734.15 from the respondent. The reference was made to the Arbitrators on 22-1-1993. The last hearing before the arbitrator was on 4-2-1995. The award has been made on 31-7-1995. By that award, the Arbitrators directed the respondent to pay Rs. 12,95,089.15 with 18 per cent interest per annum thereon from the date of filing reference till payment. This award is challenged by the respondent in arbitration petition No. 236 of 1996 whereas the claimant has filed arbitration petition No. 5 of 1997 invoking the power of the Court to extend time for making of the award and decision thereon. 3. The learned counsel appearing for the respondent for challenging the award, raised following contentions : (1) That the Arbitrators have made the award on 31-7-1995 which is beyond the time fixed by the Arbitration Act, 1940. (2) That the Arbitrators have committed misconduct inasmuch as the Arbitrators prepared two minutes of the arbitration proceedings dated 4-2-1995 which are totally different from each other, and (3) That the Arbitrators were not at all justified in awarding the claim on the basis of an inference dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four months from 4-2-1995. As the award has been made beyond that period, in the submission of the learned counsel, the award is void. 5. In so far as the second objection raised by the learned counsel for the respondent is concerned, he submits that he received, along with the letter dated 31-3-1995, copy of the arbitration notes dated 4-2-1995, which shows that the Arbitrators have referred to the rival contentions and have recorded their conclusion, however, the operative part of the award is not made. He submits that along with the letter dated 16-10-1995, he again received minutes of the arbitration proceedings dated 4-2-1995 which read differently and which show that the Arbitrators have made the award in favour of the claimant. In the submission of the learned counsel, this was done by the Arbitrators to show that the award has been made on 4-2-1995 itself so that the question of limitation for making of the award does not come in. According to the learned counsel, this amounts to misconduct on the part of the Arbitrators and therefore, the award is liable to be set aside. 6. In so far as the last submission on behalf of the respondent is concerned, the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared their notes but they did not make the award. The award was made on 31-7-1995 and thereafter the operative part of the award was written in the notes dated 4-2-1995. According to the learned counsel, writing of the operative part of the award in the arbitration notes dated 4-2-1995 may be a mistake of the arbitrators but it cannot be termed as misconduct because there was no attempt on the part of anybody to show that the award has been made on 4-2-1995. According to the learned counsel, the date of the award is 31-7-1995 for all purposes. In the submission of the learned counsel, merely writing of the operative part of the award in the arbitration notes dated 4-2-1995 does not amount to misconduct on the part of the Arbitrators. In so far the last submission made by the learned counsel for the respondent is concerned, the learned counsel for the claimants submits that the Arbitrators have not drawn an inference of acceptance merely from lack of response by the respondent to the communication of March, 1992 but there were reminders sent in June, July and September 1992 by the claimant and there was no response to those reminders from the respondent. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d time as the arbitrators may fix with the consent of the parties to the reference or as the Governing Board or the President may allow. 261. Extension of time for making the award . The Governing Board or the President may if deemed fit whether the time for making the award has expired or not and whether the award has been made or not extend from time to time the time for making the award by a period not exceeding one month at a time from the due date or extended due date of the award." It is clear from the provisions of the Bye-laws of the Bombay Stock Exchange quoted above that time for making the award can be extended by the parties by mutual consent and in the absence of mutual consent of the parties, by the Governing Board or the President. The Governing Board or the President can grant extension of time for making the award even after the award is made. Thus, the Board has been given power to grant ex-post facto sanction to the award which has been made beyond time. However, it is further to be seen here that the Board can extend time for making of the award by a period not exceeding one month at a time from the due date or the extended due date of the award. Perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting extension of time even when the Court finds that there is no sufficient reason disclosed for delay in making the award if the Court finds that the award is otherwise just and proper. However, that consideration cannot be used by the Board for granting extension of time because the Board cannot go into the propriety or otherwise of the award. Therefore, the contention that the powers conferred on the Board by Bye-law No. 261 and on the Court by sub-section (1) of section 28 are different; they operate in different fields and considerations for exercise of those powers are also different. When the powers are conferred on two different authorities and the powers operate in different fields, in my opinion, there is no question of there being any inconsistency and therefore power under sub-section (1) of section 28 of the Act would be available to the Court. The preliminary objection raised to the tenability of arbitration petition No. 5 of 1997 is therefore rejected. 10. Now this takes me to the consideration of arbitration petition No. 5 of 1997 on its own merits which is for extension of time for making of the award and its filing. According to the claimant, under the Bye-l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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