# NILKANTHA SHIDRAMAPPA NINGASHETTI v. KASHINATH SOMANNA NINGASHETTI AND OTHERS

- **Citation:** [1962] 2 S.C.R. 551
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Arbitration Act. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 36 of 1958
- **Bench:** B. P. Sinha, K. Subba Rao, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nilkantha-shidramappa-ningashetti-v-kashinath-somanna-ningashetti-and-others-2273
- **Pages:** 8

## Headnote

Arbitration-Award filed in court-Expression "give notice",
meaning of-If must be given in writing-Period of limitation to
file objections from when to run-Objection to set aside award filed
beyond time-Court files the award-If amounts to refusal to set
aside the award-Indian Limitation Act, r908 (IX of 1908), art.
r58-Arbitrat1on Act, r940 (10 of 1940), ss. 14(2), 39(r)(V I).
In a partition suit the Arbitrator filed his award in the
court and the judge adjourned the case for "the parties' say to
the arbitrator's report."
No notice in writing was given to the
parties by the court of the filing of the award. Objection to the
award was filed by the appellant beyond the period of limitation.
The court ordered the award to be filed and decree to be drawn
up in terms of the award as the objection filed was beyond the
period of limitation.
The appellant's case was that the period of limitation as
under art. 158 of the Limitation Act, for an application to set
aside the award, would run against him only from the date of
service of the notice in writing of the filing of the award and
as no notice in writing was issued by the Court to the appellant
the time never began to run against him. The appellant also
contended that as the court had refused to set aside the award
the appeal was maintainable under s. 39(r)(VI) of the Arbitration Act.
Held, that the communication by the court to the parties or
their counsel of the information that an award had been filed
was sufficient compliance1with the requirements of sub-s. (2) of
s. 14 of the Arbitration Act, with respect to the giving of the
notice to the parties concerned, about the filing of the award.
Notice does not necessarily mean "communication in writing".
The expression "give notice" in sub-s.(2) of s. 14 of the Arbitration Act simply means giving intimation of the filing of the
Award. Such intimation need not be given in writing and could
be communicated orally. That would amount to service of
notice \vhen no particular mode of service \Vas prescribed.
Held, further that where there was no objection before the
court praying for setting aside the award, no question of refusing to set it aside could arise, and no appeal therefore was
maintainable under s. 39(r)(Vl) of the Arbitration Act.

## Text

2 S.C.R. SUPREME COURT REPORTS
551
NILKANTHA SHIDRAMAPPA NINGASHETTI
v
KASHINATH SOMANNA NINGASHETTI
AND OTHERS.
(B. P. SINHA, c. J., K. SUBBA RAO, RAGHUBAR
DAYAL and ,J. R. MUDHOLKAR, JJ.)
Arbitration-Award filed in court-Expression "give notice",
meaning of-If must be given in writing-Period of limitation to
file objections from when to run-Objection to set aside award filed
beyond time-Court files the award-If amounts to refusal to set
aside the award-Indian Limitation Act, r908 (IX of 1908), art.
r58-Arbitrat1on Act, r940 (10 of 1940), ss. 14(2), 39(r)(V I).
In a partition suit the Arbitrator filed his award in the
court and the judge adjourned the case for "the parties' say to
the arbitrator's report."
No notice in writing was given to the
parties by the court of the filing of the award. Objection to the
award was filed by the appellant beyond the period of limitation.
The court ordered the award to be filed and decree to be drawn
up in terms of the award as the objection filed was beyond the
period of limitation.
The appellant's case was that the period of limitation as
under art. 158 of the Limitation Act, for an application to set
aside the award, would run against him only from the date of
service of the notice in writing of the filing of the award and
as no notice in writing was issued by the Court to the appellant
the time never began to run against him. The appellant also
contended that as the court had refused to set aside the award
the appeal was maintainable under s. 39(r)(VI) of the Arbitration Act.
Held, that the communication by the court to the parties or
their counsel of the information that an award had been filed
was sufficient compliance1with the requirements of sub-s. (2) of
s. 14 of the Arbitration Act, with respect to the giving of the
notice to the parties concerned, about the filing of the award.
Notice does not necessarily mean "communication in writing".
The expression "give notice" in sub-s.(2) of s. 14 of the Arbitration Act simply means giving intimation of the filing of the
Award. Such intimation need not be given in writing and could
be communicated orally. That would amount to service of
notice \vhen no particular mode of service \Vas prescribed.
Held, further that where there was no objection before the
court praying for setting aside the award, no question of refusing to set it aside could arise, and no appeal therefore was
maintainable under s. 39(r)(Vl) of the Arbitration Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 36
of 1958.
r96x
April 28.
z96z
Nilkanlha
Shidramappa
Ningashetli
v.
Kashinoth
Soma11na
l\'ingashetti
R11gliubflt'
Dayal ].
552
SUPREME COURT REPORTS
[1962]
Appeal from the judgment and decree dated January
7, 1954 of the Bombay High Court in Appeal from
Order No. 63of1950.
A. V. Viswanatha Sastri and Naunit Lal, for appellant.
W. S. Barlingay and A. G. Ratnaparkhi, for respondents Nos. I and 2.
S. T. Desai and M. S. K. Sastri, for respondents
Nos. 4 to 7.
1961. April 28.
The Judgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This is an appeal on certificate under Art. 133(l)(c) of the Constitution, granted
by the High Court of Judicature at Bombay.
A suit for partition was filed against defendants
I to IO and 12, members of a joint family. Defendant
no. 1 was father of the appellant, who was then a
minor, defendant no. 12. Defendant no. II was an
outsider, he being a partner in the partnership shop
of the family. Parties other than defendant no. 11
referred the matters in difference to an arbitrator.
The arbitrator filed the award in Court on February
18, 1948. On February 21, 1948, the Civil Judge
adjourned the matter "for parties' say to the arbitrator's report", to March 22, 1948. On March 16, 1948,
an application was presented on behalf of defendant
no. 1 praying that certain papers and documents be
called for from the arbitrator. On March 22, 1948, an
application was presented on behalf of defendant no. I
praying for 15 days' time for going through the
papers and documents which he had asked the arbitrator to send to the Court and to intimate his say
regarding the arbitrator's award. The Court granted
the request. Defendant no. I filed his say about the
arbitrator's report on April 2, 1948. He withdrew his
contentions on March 31, 1949. It is to be noted that
neither the objections filed on April 2, nor the other
applications, purported to have been filed on behalf of
defendant no. 12.
On February 17, 1948, defendant no. I filed an
application stating therein;
2 S.C.R. SUPREME COURT REPORTS
553
"An arbitrator is to be appointed in the matter of
the suit and the arbitrator is to submit an award.
For the aforesaid reasons it is impossible for me to
put forth properly necessary contentions etc., in the
said matter. Consequently, the minor will be put
Nilkantha
Shidratnappa
Ninga.~hett'i
to a heavy Joss.
In these circumstances, I have no
desire to act as a guardian of the minor. Therefore,
my appointment as a guardian of the minor may be
cancelled and further steps may be taken after
appointing a proper guardian of the minor. His
mother Dhondavvabai may be appointed guardian
of the minor. I have put forth a contention against
the arbitrator's award. I may be granted time for
that purpose."
His resignation from guardianship was accepted on
April 13, 1948, and Dhondavvabai, the mother of the
minor defendant no. 12, was appointed guardian on
June 16, 1948.
On September 5, 1948, a summons purporting to be
for settlement of issues, was served on her. On
September 7, 1948, she applied for, and was granted,
one month's time for submitting the written statement
with regard to the claim and the award in the said
matter. On October 7, 1948, she applied for, and was
granted, another one month's time for the same
purpose. On November 9, 1948, she filed a written
statement on behalf of defendant no. 12, with regard
to the suit and the award, questioning the validity of
the award and praying that it be declared null and
void and that the suit be heard after taking into
consideration the interest of the minor.
On August 24, 1949, the Civil Judge ordered that
the award be filed, that a decree be drawn up in terms
of the award and that the decree should further contain
the terms as to tho Bombay shop run in partnership
with defendant no. 11 as was mentioned in the order.
It was said in this order that none of the parties
except defendant no. 1 put in any objections to the
award, that defendant no. 1 filed his objections beyond
the period of limitation and subsequently withdrew
them and that the objections filed by the guardian-adlitem of defendant no. 12 on November 9, 1948, was
also filed beyond the period of limitation.
v.
Kasliinath
Somanna
Ningashetli
Raghubar
Da.val ].
Nilhantha
Shidramappa
Ningashetti
v.
/{ashinath
Somann1t
Ningashetti
Raghubar
Daval ].
554
SUPREME COURT REPORTS
[1962)
Defendant no. 12 then went up in appeal to the
High Court. The High Court dismissed the appeal
holding that it was incompetent as the order of the
Civil Judge did not amount to an order refusing to
set aside an award, as there had been no objection
before him for the setting aside of the award. It
further held that the issue of a formal notice under
sub-s. (2) of s. 14 intimating the filing of the award
was not necessary for the commencement of the period
of limitation under Art. 158 of the Limitation Act
and that objections coming under s. 33 of the Arbitration Act also amounted to objections for the setting
aside of the award. It is this order of the High Court
whose correctness is challenged in this appeal.
The first question to determine is whether limitation
for filing an application to set aside the award began
to run against the appellant-defendant no. 12 from a
date more than a month before November 9, 1948,
when a written statement on his behalf was filed
stating that the award be declared null and void.
According to Art. 158 of the First Schedule to the
Indian Limitation Act, the period of limitation for an
application to set aside an award under the Arbitration Act, 1940, begins to run from 'the date of
service of the notice of the filing of the award'. No
notice in writing was issued by the Court to the
appellant or his guardian intimating that the award
has been filed in Court. It is therefore urged for the
appellant that the period of limitation for filing an
application to set aside the award never began to run
against him. There could be no date of service of
notice, when no notice had been issued. On the other
hand, it is submitted for the respondents, that the
limitation began to run from February 21, 1948, the
date on which the Court adjourned the case for parties'
say to March 22, 1948, and that, in any case, from
September 7, 1948, when his guardian had applied for
time to file the statement after having received a
summons from the Court on September 5, 1948. On
February 21, 1948, the pleaders were present, according to the entry against the date in the roznama of
the Court. Notice to the counsel of the filing of the
award means or amounts to notice to the party.
2 S.C.R. SUPREME COURT REPORTS
555
Sub-section (1) of s. 14 of the Arbitration Act, 1940
(X of 1940) requires the arbitrators or umpire to
give notice in writing to the parties of the making and
signing of the award. Sub-section (2) of that section
requires the Court, after the filing of the award, to
give notice to the parties of the filing of the award.
The difference in the provisions of the two suh-8ections with respect to the giving of notice is significant
and indicates clearly that the notice which the Court
is to give to the parties of the filing of the award need
not be a notice in writing. The notice can be given
orally. No question of the service of the notice in the
formal way of delivering the notice or tendering it to
the party can arise in the case of a notice given orally.
The communication of the information that an award
has been filed is sufficient compliance with the requirements of sub-s. (2) of s. 14 wit.h respect. to the giving
of the notice to the parties concerned about the filing
of the awa~d. 'Notice' does not necessarily mean
'communication in writing'.
'Notice', according to
the Oxford Concise Dictionary, means 'intimation,
intelligence, warning' and has this meaning in expressions like 'give notice, have notice' and it also means
'formal intimation of something, or instructions to do
something' and has such ·a meaning in expressions
like 'notice to quit, till further notice'. We are of
opinion that the expression 'give notice' in suh-s. (2) of
s. 14, simply means giving intimation of the filing of
the award, which certainly was given to the parties
through their pleaders on February 21, 1948.
Notice
to the pleader is notice to the party, in view of r. 5 of
0. III, Civil Procedure Code, which provides that any
process served on the pleader of any party shall be
presumed to be duly communicated and made known
to the party whom the pleader represents and, unless
the Court otherwise directs, shall be as effectual for all
purposes as if the same had been given to or 8erved on
the party in person.
We have been referred to s. 42 of the Arbitration
Act for the modes of serving notice. This section does
not apply to the giving of notice by Courts. It applies
to the service of notice by a party to an arbitration
I96I
}lilkantha
Shidraniappa
Ningashetti
v.
/( ashiiiath
Somanna
.\7ingashetti
Raghubar
nayal ].
r961
Nilkantha
Shid1 {Hnappa
Ningashetti
v.
J( ashinatli
Som!l'nna
Ningashetli
Raghubar
Daya! ].
556
SUPREME COURT REPORTS
(1962]
agreement or by an arbitrator or umpire. It is contended that verbal communication of the filing of
the award does not amount to serving of a notice.
The expression 'date of service' of notice is used in
Art. 158, First Schedule of the Limitation Act because
sub-s. (2) of s. 14 would be applicable both when
the reference to arbitration is out of Court or in a
suit.
When the arbitration reference is out of
Court, no party is expected to be present in Court
and, therefore, the notice will have to go to the party
formally, i.e., a written notice will issue from the
Court to the parties concerned, intimating them that
an award had been filed. It is only in cases where an
arbitration is through Court that, when the a.ward is
filed, the Court can have the counsel for the parties
present at the time the case is put up with the award
and that the Court can then orally intimate to the
counsel about the filing of the a.ward.
Further, 'service', according to Webster's New International Dictionary, II Edition, Unabridged, means 'act of bringing to notice, either actually or constructively, in such
manner as is prescribed by law'. Oral communication
will therefore amount to service too, when no particular modo of service is prescribed.
We see no ground to construe the expression 'date
of service of notice' in col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a
formal manner. When the Legislature used the word
'notice' it must be presumed to have borne in mind
that it means not only a formal intimation but also
an informal one. Similarly, it must be deemed to
have in mind the fact that service of a notice would
include constructive or informal notice. If its intention were to exclude the latter sense of the words
'notice' and 'service' it would have said so explicitly.
It has not done so here. Moreover, to construe the
expression as meaning only a written notice served
formally on the party to be affected, will leave the door
open to that party, even though with full knowledge
of the filing of the award he has taken part in the
subsequent proceedings, to challenge the decree based
upon the award at any time upon the ground that for
,,
.2 S.C.R. SUPREME COURT REPORTS
557
want of a proper notice his right to object to the filing
of the award had not even accrued. Such a result
would stultify the whole object which underlies the
process of arbitration-the speedy decision of a dispute by a tribunal ehosen by the parties.
In this case, the parties knew of the filing of the
award. Defendant no. 1 had probably known of the
imminence of the filing of the award when he stated,
in his application dated February 17, 1948, that he
intended to file an objection to the award. He was
then the guardian of the appellant. He continued to
be the guardian till April 1948.
The appellant's
mother became guardian in June 1948. It has to be
presumed that she would have known of the filing of
the award on that day. Anyway, she knew definitely
on September 7, 1948, that an award had been filed
and that she had to file an objection. She took one
month's time on September 7, for filing the objection
and again, one month's time, on October 7.
She actually filed the objection on November 9. If she be held
to have notice of the filing of the award on September
7, 1948, even then the filing of the objection on
November 9, 1948, was beyond the period of thirty
days prescribed in Art. 158 of the Limitation Act.
We therefore see no justification for the content.ion
that the period of limitation had not begun to run
against the appellant and that the objection filed on
his behalf on November 9, 1948, was within the period
of limitation prescribed under Art. 158 of the First
Schedule to the Limitation Act.
We therefore agree with the High Court that the
intimation to the pleaders of the parties on February
21, 1948, amounted to service of the notice on the
parties about the filing of the award and that the
objection filed on behalf of the appellant was filed
after the expiry of the period of limitation.
The second question is whether the order of the
Civil Judge amounted to an order refusing to set
aside the award and therefore appealable to the High
Court. The High Court held that it was not such an
order and we agree. When no party filed an objection
71
l>.'ilkanlha
Shidramappa
Ningashetti
v.
Kashinath
Somanna
Nitigashetti
Raghubar
Dayal J.
1961
Nilkanlha
SAidramappa
Ningashetti
v.
l(ashinath
Somanna
NingashetH
RaghubaY
Dayal }·
iy6 r
April a8.
558
SUPREME COURT REPORTS
[1962)
praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore
no appeal was maintainable under s. 39(l)(VI) of the
Arbitration Act which allows an appeal against itn
order refusing to set aside an award.
Lastly, it was submitted that the objection to the
effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the
award property which did not fall within the scope of
his authority, should have been considered by the
trial Court. Such an objection was not pressed before
the trial Court and therefore the High Court did not
allow that objection to be taken before it.
We think
that the High Court was right in not allowing the
objection to be raised since it, being not pressed in the
trial Court, will be presumed to have been given up.
We therefore see no force in this appeal and dismiss
it with costs.
Appeal dismissed.
JAISRI SAHU
v.
RAJDEWAN DUBEY AND OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS
GUPTA and T. L. VENKATARAMA ArYAR, JJ.)
Hindu Law-Mortgage by widow-Sale by widow to discharge
mortgage debt- When binding on reversioners.
High Court-Practice-·Decision of a Bench-Binding nature
of, on another Bench-Conflicting decisions of Benches before a later
Bench-Procedure to be adopted-Desirability of reference to Full
Bench.
P died on July 14, 1932, leaving behind his widow, Las his
heir. On June 21, 1935, L executed a Zerpeshgi in favour of
the respondents for an admittedly binding purpose, and on June
17, 1943· she sold to the appellant a portion of the properties
which were the subject-matter of the Zerpeshgi deed for the
purpose of redeeming the Zerpesbgi and for certain other necessary purposes. The respondents who were the reversioners