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Present : Jayewardeue A.J.
PERERA v. ANDRIS.235—C. R. Panadure, 17,560.
Arbitration—Piling of award—Power of Court to extend fime-^-Verbalapplication for extension—Civil Procedure Code, s. 91.
Once an award has been filed, a Court has no power to extendthe time allowed for making the sward.
An application for extension of time must be made as requiredby section 91 of the Civil Procedure Code, and the Court’s orderthereon must be made in writing.
Sedris Perera v. Magris Perera1 followed ; Punchirala v. Sudda-kamy 2 and Ukku Noide v. Sarendra * referred to.
PPEAL by the defendant from tun order of the Commissionerof Requests, Panadure, confirming the award of an arbi-
trator and entering up judgment in terms of the award. Theparties to the case by a writing duly signed, referred the mattersin dispute to the arbitration of the Interpreter Mudalivar of theCourt under Chapter 51 of the Civil Procedure Code. The awardwas returnable on April 30, 1924, but the award was not madetill May 21, 1924. On the receipt of the award certain objectionswere filed against it, the main objection being that it was' madeafter the returnable date. At the inquiry it transpired that thearbitrator had asked for permission verbally to file his awardwithin a further period of three weeks, and that the Court hadgranted him the desired permission in a similar way. The Com-missioner held that such permission need not be given in writing,and overruled the objection.
Amaresekere, for defendant, appellant.
J. 8. Jayewatdene, for plaintiff, respondent.
September 19, 1924. JayewaeDene A.J.—
This is an appeal by the defendant against an order rejectinghis objections to the confirmation of an arbitrator’s award andentering judgment in terms of the award, The parties in thiscase, by a writing duly sighed referred the matters in dispute tothe arbitration of the Interpreter Mudaliyar of the Court underChapter 51 of the Civil Procedure Code. The award was madereturnable on April 80, 1924, but the award was not made till May21, 1924. On the receipt of the award the Court fixed June 11for its consideration, and the defendant’s proctor took certainobjections and moved that it be set aside.
1 (1906) 3 Bed. 7.* [1895) 1 N. L. B. 38.
* (1899) 4 N. L. R. 118.
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Javbwab-DENE A. J.
The main objection pressed is that the award is void, as it was-made after the returnable date. The learned Commissioner over-ruled the objection, upheld the award, and directed that judgment,be entered in terms of the award.
At the inquiry, according to. the judgment of the learned Com-missioner, the arbitrator was present in Court, and said that he hadasked for permission verbally to file' his award within a furthertime of three weeks, and that the Court had granted him the desiredpermission. The learned Commissioner says that although there-is no entry to that effect, it is possible that such permission was-'applied for and granted, and that the absence of an entry may bedue to the fact that the record had been forwarded to the arbitrator.He also thought that there was nothing in the Code requiring theallowance of an extension of time to be in writing.
I am unable to agree with the learned Commissioner when hesays there is nothing in the Code which requires an applicationfor an extension of time to be in writing. I think the matteris governed by section 91 of the Civil Procedure Code, which says-that everyapplicationto thej Courtin thecourse ofan action
incidental thereto shallbe made bymotionby the applicant in
person or by his advocate or proctor, and a memorandum in writing'of such motion shall at the same time be delivered to the Court. Inthe Court of Requests such application may be made orally by theapplicant,and thenreduced intowritingby theCourt in
accordancewith therules of summary procedurehereinafter
provided. This is a Court of Requests case, and the arbitratorwas entitled to make an application for an extension of time.He could have made that application verbally if he was not repre-sented by a legal adviser, but his application should have beenreduced to writing by the Court. The necessity for such a recordis obvious, and I think it is unsafe to uphold any principle whichallows applications to Court to be made verbally, and granted1without their being reduced to writing. In my opinion, therefore,,the application by the arbitrator, if he made any such application,ought to have been reduced to writing, and the order of the Courton such application also ought to have been made in writing asrequired by law. I am, therefore, not prepared to hold that theCourt granted an extension of time to the arbitrator to make hisaward. Then arises the question whether, if no extension of timewas given before the filing of the award, the time can be extendednow, and the award be regarded as filed within such extended time.The learned Counsel for the respondent has asked the Court, inview of the very technical nature of the objection raised, to extendthe time and to. regard the award' as one falling within the timeso extended. In my opinion once an award has been filed, the Courthas no authority to extend the time for making the award. Thematter is regulated by Chapter 551 of the Civil Procedure Code
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'which provides a special procedure in cases of reference to arbitra- 1024.tion. Section 683 of the Code empowers the Court to extend■the time specified in the order of reference, and to extend it from denb A*. J.time to time as the circumstances of the case may require, but Pererasection 681 of the Code enacts that no award shall be filed unless . v: .
made within the period allowed by the Court. In the presentcase the time allowed by the Court was till April 30, 1924, butthe award, as 1 have pointed out, was not filed till May 21, 1924.
Therefore, the award has not been filed within the period allowedby the Court, and would, under section 691, be liable to be set aside*
ZBut it is contended on the authority of certain local and Englishcases that in order to save the parties unnecessary expense, theCourt has the power in appropriate cases to extend the time evenafter the award has been filed. In the case of Punchirala v. Sudda-hamy (supra) the time was extended after the expiration of the timeoriginally fixed! It was not a case where the time was extendedafter the award had been filed. It has, therefore, no application tothe present case. The case of Vkku Naide v. Surendra (supra), whencarefully considered, shows that the award had not been filed whenan extension was applied for, and the Court thought that the entryin the record that the award had been filed on May 27 was a mistake,and that the award had not, in fact, been filed on the day on whichthe extension was granted. These two local cases on which counselfor the respondent relies do not support his contention that thetime can be extended after the award has been filed. He hasalso relied on certain English cases, but I do not think it necessaryto refer to the English cases, because those cases seem to dependupon certain statutory provisions which regulate arbitrationproceedings in England. As the Privy Council said in the case ofAitken Spence v. Siman Fernando,l questions relating to arbi-tration proceedings depend entirely on the provisions of the CivilProcedure Code, and the question which arises here depends uponthe construction of section 683 and section 691 of our Civil ProcedureCode. These two sections appear to be identical with sections514 and 521 of the Indian Civil Procedure Code of 1882, and in thecase of Har Narain v. Bhagwant2 the Privy Council construedsections 514 and 521 and laid down in unmistakable terms thatonce an award has been delivered it is not legally competent tothe Court to grant further time, or to enlarge the period for thedelivery of the award under section 514 of the Indian Code ofCivil Procedure. It held that where an award was not madewithin the period fixed by the Court's order, but was made afterthe date given in the last order extending the time for its delivery,the award was invalid. It also said that the decree of the Courtdealing with the award as if duly made within the time could notbe treated as enlarging it. That is what the learned counsel for
' (1903) Z Bal. 180.
* (1891) 13 AU. ZOO.
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Jayewab-XKBNB, A. J.
the respondent wishes the Court to hold in this case. The judgmentoi the Privy Council has been followed, and I might refer tothe case of Gopalji KaUianji v. Ckhaganlalvitthalji.l I may alsomention that the construction of these sections as laid down bythe Privy Council was followed in the local case of Sedris Perera u.Magna Perera (supra). I think the tendency of the Courts is toenforce the procedure with regard to arbitrations strictly. I do notthink that, however technical the appellant’s objection may be,and however much a contrary decision may save the parties furtherexpense and trouble., it is open to me to uphold the judgment ofthe learned Commissioner.
I would, therefore, allow the appeal with costs, and send thecase back to the lower Court to be proceeded with in due course.
There will be no costs of the proceedings before the arbitrator.
PERERA v. ANDRIS