# Akbar I( hun Alant J<han v. LTninn of fudia Sarkar ]. April 5

- **Citation:** [1962] 1 S.C.R. 784
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. 8Ubba Rao, Raghubar Dayal, J.B.. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akbar-i-hun-alant-j-han-v-ltninn-of-fudia-sarkar-april-5-2090
- **Pages:** 5

## Headnote

Arbitration--Order of reference-If must specify date within
which the award is to be made--Award-Validity-W hen can be set
aside--Arbitration Act, I940 (10 of I940), ss. 23(I), 30.
The questions for determination in the appeal were whetqer
the award in question was invalid, (1) by reason of the court
failing to comply with the mandatory requirement of s. 23(1) of
the Arbitration Act, 1940, that the time within which the award
is to be made, must be specified in the order, and (2) whether
the arbitrator was in error in allotting to the appellant less than
half share in the properties.
Held, that under s. 23(1) of the Arbitration Act, 1940, it is
imperative that the time lor making the award must be fixed;
but that does not mean that where the court omits to specify
the time in the order of reference and does so elsewhere in the
proceedings, the reference is invalid. Consequently, in a case
where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by
the date to which the suit was adjourned, it could not be said
that the section had not been complied with.
Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar
(1891) L.I<. 18 I.A. 55, referred lo.
Held, further, that the award could not be said to be bad
on the face of it and "otherwise invalid" merely because the
appellant had 1eceived less than his due share. The court
cannot interfere with the findings of an arbitrator based on the
best of his judgment unless it is shown that he has acted dishonestly.
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l S.C.R. SUPREME COURT REPORTS
785
, ·CIVIL APPELLATE JURISDICTION:
12 of 1958.
Civil Appeal No.
Subbarania r..r aidu
Appeal by special leave from the judgment and
v.
order dated April 6, 1953, of the Madras High Court'iddamma Naidu
in Appeal against order No. 54 of 1949.
S. T. Desai and K. R. Choudhri, for the appellant.
K. N. Rajagopala Sastri and T. V. R. Tatacha1"i, for
respondents Nos. 1 to 5.
1961.
April 5. The Judgment of the Court was
delivered by
MUDHOLKAR, J.-In this appeal by special leave
Mudholkar ].
from the decision of the High Court of Madras the
appellant challenges the validity of an award made
by an arbitrator appointed by the Court in a snit
for partition and recovery of possession filed by the
appellant of his half share in certain properties upon
three grounds. The first ground is that the reference
to arbitration was itself invalid because the Court
failed to comply with the mandatory requirements of
s. 23, sub-s. (1) of the Arbitration Act, 1940 (10 of
1940) in the matter of specifying the time within
which the award was to be made. The second ground
is that the award was filed in Court by the arbitrator
after the expiry of the time subsequently granted by
the court for filing the award. The third ground is
that the arbitrator erred in allotting to the appellant
less than half the share in the properties in snit. In
our opinion there is no substance in any of these
grounds.
It is undoubtedly true that sub-s. (1) of s. 23 requires that an order thereunder referring a dispute to
an arbitrator must specify the time within which the
award is to be made. What is imperative is the fixation of the time for making the award. But it does
not follow that where the Court omits to specify the
time in the order of reference but does so elsewhere
in the proceedings, the reference is bad. In Raja Har
Narain Singh v. Chaudhrain Bhagawant Kuar and
another (1) which was a case under the Code of Civil
. (I) (1891) L.R, 18 I.A. 55·
99
786
SUPREME COURT REPORTS
[1962]
I96I
Procedure, 1882, the Privy Council had to consider
S bb -- " ·a the provisions of s. 508 which correspond to those of
u Mama "ai u
23(1) f h A b'
·
A
Wh'l
'
'
v.
s.
o t e r 1trat10n
ct.
1 e pomtmg out
Siddamma
Naidu that the provisions of s. 508 are mandatory and imperative they held that though the failure of the
Mudhotkar .I· Court to specify the time for making the award in
the order of reference was not a strict complianc

## Text

Akbar I( hun
Alant J<han
v.
LTninn of fudia
Sarkar ].
April 5.
784
SUPREME COURT REPORTS
(l962J
and thereafter dispose it of by such order as the decision of the Central Government may justify. There
will be no ordrr as to costs.
Appeal allowed.
Case Remitted.
B. SUBBARAMA NAIDU
v.
B. SlDDAMMA NAIDU & OTHERS
(K. 8UBBA RAO, RAGHUBAR DAYAL and
J.B.. MuDHOLKAR, JJ.)
Arbitration--Order of reference-If must specify date within
which the award is to be made--Award-Validity-W hen can be set
aside--Arbitration Act, I940 (10 of I940), ss. 23(I), 30.
The questions for determination in the appeal were whetqer
the award in question was invalid, (1) by reason of the court
failing to comply with the mandatory requirement of s. 23(1) of
the Arbitration Act, 1940, that the time within which the award
is to be made, must be specified in the order, and (2) whether
the arbitrator was in error in allotting to the appellant less than
half share in the properties.
Held, that under s. 23(1) of the Arbitration Act, 1940, it is
imperative that the time lor making the award must be fixed;
but that does not mean that where the court omits to specify
the time in the order of reference and does so elsewhere in the
proceedings, the reference is invalid. Consequently, in a case
where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by
the date to which the suit was adjourned, it could not be said
that the section had not been complied with.
Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar
(1891) L.I<. 18 I.A. 55, referred lo.
Held, further, that the award could not be said to be bad
on the face of it and "otherwise invalid" merely because the
appellant had 1eceived less than his due share. The court
cannot interfere with the findings of an arbitrator based on the
best of his judgment unless it is shown that he has acted dishonestly.
F
I
• /
•
'
'
..
,
'
l S.C.R. SUPREME COURT REPORTS
785
, ·CIVIL APPELLATE JURISDICTION:
12 of 1958.
Civil Appeal No.
Subbarania r..r aidu
Appeal by special leave from the judgment and
v.
order dated April 6, 1953, of the Madras High Court'iddamma Naidu
in Appeal against order No. 54 of 1949.
S. T. Desai and K. R. Choudhri, for the appellant.
K. N. Rajagopala Sastri and T. V. R. Tatacha1"i, for
respondents Nos. 1 to 5.
1961.
April 5. The Judgment of the Court was
delivered by
MUDHOLKAR, J.-In this appeal by special leave
Mudholkar ].
from the decision of the High Court of Madras the
appellant challenges the validity of an award made
by an arbitrator appointed by the Court in a snit
for partition and recovery of possession filed by the
appellant of his half share in certain properties upon
three grounds. The first ground is that the reference
to arbitration was itself invalid because the Court
failed to comply with the mandatory requirements of
s. 23, sub-s. (1) of the Arbitration Act, 1940 (10 of
1940) in the matter of specifying the time within
which the award was to be made. The second ground
is that the award was filed in Court by the arbitrator
after the expiry of the time subsequently granted by
the court for filing the award. The third ground is
that the arbitrator erred in allotting to the appellant
less than half the share in the properties in snit. In
our opinion there is no substance in any of these
grounds.
It is undoubtedly true that sub-s. (1) of s. 23 requires that an order thereunder referring a dispute to
an arbitrator must specify the time within which the
award is to be made. What is imperative is the fixation of the time for making the award. But it does
not follow that where the Court omits to specify the
time in the order of reference but does so elsewhere
in the proceedings, the reference is bad. In Raja Har
Narain Singh v. Chaudhrain Bhagawant Kuar and
another (1) which was a case under the Code of Civil
. (I) (1891) L.R, 18 I.A. 55·
99
786
SUPREME COURT REPORTS
[1962]
I96I
Procedure, 1882, the Privy Council had to consider
S bb -- " ·a the provisions of s. 508 which correspond to those of
u Mama "ai u
23(1) f h A b'
·
A
Wh'l
'
'
v.
s.
o t e r 1trat10n
ct.
1 e pomtmg out
Siddamma
Naidu that the provisions of s. 508 are mandatory and imperative they held that though the failure of the
Mudhotkar .I· Court to specify the time for making the award in
the order of reference was not a strict compliance of
the terms of the section still the fact that the Court
fixed a date for hearing of the case "might be sufficient." There also, as here, subsequent to the making of the reference the Court repeatedly made orders
enlarging the time and in those orders fixed the time
within which the award was to be made. Thus the
emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity
of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court
shows that the dispute was referred to arbitration on
January 22, 1948.
The entry in the diary of ·that
date reads thus: "Subject matter of suit is referred to
Arbitration on joint petition. Call on ...... 24-2-1948".
The words "call on" must be interpreted to mean
that the arbitrator was required to file his award by
the date for which the suit stood adjourned, that is,
February 24, 1948. In our opinion this entry should
be read along with the order of reference. Reading
them together it would follow that time was in fact
fixed for filing the award by February 24, 1948. The
mere omission to mention this date in the order of
reference itself did not vitiate the reference.
As regards the failure of the arbitrator to file the
award within the time fixed the argument of learned
counsel is that though on March 25, 1948, time was
fixed for filing the award by June 23, 1948, the award
was not actually filed till July 6, 1948. A reference
to the B ]'orm Diary discloses that on February 24,
1948, the case was adjourned to March 25, 1948. The
Diary contains the remark "call on" and this remark
precedes the mention of the adjourned date. The
High Court has interpreted this to mean that the time
was extended by the Court on February 24, 1948, to
March 25, 1948. The entry dated March 25, 1948,
contains the following:
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I S.C.R. SUPREME COURT REPORTS
787
\ "Further time wanted. File Award .............. .
1961
, 23-6-1948".
Subbarama Naidu
Three further entries are
follows:
relevant and they are as
v.
"23-6-1948 Call on
... 28-6-1948
28-6-1948 Call on
... 6-7-1948
6-7-1948 Award filed. Objections 13-7-1948".
It is obvious from these entries that time was extended by the Court to file the award on three occasions.
The award was actually ready on June 28, 1948, and
was filed in Court on July 6, 1948. Learned counsel
for the appellant faintly urged that on July 2, 1948,
that is, before the award was actually filed, he had
made an application to the Court for superseding the
arbitration and that, therefore, the award could not be
filed thereafter. A mere application of the kind could
not affect the reference. Apart from that, the award
had c.ctually been made before that date and, therefore, the attempt to seek the supersession of the
arbitration was, in any case, belated.
As regards the last point the High Court has come
to the conclusion that though the area of the land
allotted to the appellant is less than half the total
area of the land in suit there is nothing to indicate
that the value of that land is less than half that of the
entire land in suit. We agree that upon the material
on record it would not be possible to say that the
appellant has in fact received less than his due share
of property. Apart from that, however, we may point
out that under s. 30 of the Act an award can be set
aside only on the following three grounds:
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue
of an order by the Court superseding the arbitration
or after arbitration proceedings have become invalid
under section 35;
(c) that an award has been improperly procured
or is otherwise invalid.
Plainly this objection would not fall either under cl.
(a) or under cl. (b) nor under the first part of cl. (c).
Siddam1na Naidu
Mudholkar ].
788
SUPREME COURT REPORTS
[1962]
z96z
The question is whether it could possibly fall with'1n
Subba,.;;;;;;; Naidu ~he second. pa~t of ?I. (c}, that is, whe.ther the award
v.
rs "otherwise mvahd". In order to brmg the objection
Siddamma Naidu within this clause learned counsel contended that the
award was bad on its face. It is difficult for us to
Mudholkar J. appreciate how the award could be said to be bad on
its face.
When a dispute is referred to arbitration,
the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to t,he appellant
certain lands the total area of which is less than half
that of the entire land in suit. The appellant's contention is that he is entitled to half the entire land.
This contention was before the arbitrator. In spite of
that he has made the award in the terms in which he
has made it. There appears to be no suggestion that
the arbitrator acted dishonestly. How can it then be
said that this award is on its face bad?
Agreeing with the High Court we dismiss this
appeal with costs to the contesting respondent.
Appeal dismissed.
THE COMMISSIONER OF INCOME-TAX,
BOMBAY
v.
THE SCINDIA STEAM NAVIGATION CO. LTD.
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J.C. SHAH and T. L. VENKATARAMA ArYAR, JJ.)
Income-tax-Reference-Scope-"Any question of law arising
out of such order", Meaning of-Indian Income Tax Act, I922 (II
of I922), as amended by Income-tax (Amendment) Act, I946 (VIII
of I946), ss. 66, rn(2)(vii) proviso.
Bys. 66 (1) of the Indian Income-tax Act, 1922 "the assessee
or the Commissioner may, by application in the prescribed form
...... require the Appellate Tribunal to refer to the High Court
any question of law arising out of such order and the Appellate
Tribunal shal] ... draw up a statement of the case and refer it to
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