S. M. N. Raina, J.

This is an appeal under section 39 of the Indian Arbitration Act.

Appellant Rajendra Dayal constitutes one party while respondents Govind Vaidya and Shri Krishna Tilak constitute the other party. The parties entered into an agreement of partnership dated 21-8-1955 and another agreement of hire on the same date (copies of which are at pages 131 to 146 of the Paper Book). The agreement of partnership contained a clause according to which the disputes about the agreement were to be referred to arbitration according to the Indian Arbitration Act (hereinafter referred to as the Act). Under the said clause each party was to appoint an arbitrator within 15 days of the notice of the dispute, and in case of difference of opinion between the two arbitrators they were to appoint an umpire. The decision of the arbitrators was to be given within a period of 3 months from the date of reference of the dispute and was to be final and binding on the parties.

As disputes arose between the parties in respect of the said agreement party No. 2 (respondents) appointed Dr. B. S. Majumdar of Bhelsa as their arbitrator and called upon party No. 1 (appellant) to appoint his arbitrator within 15 days of the receipt of the notice. But as he failed to appoint an arbitrator on his behalf within the stipulated time, party No. 2 appointed Dr. Majumdar as the sole arbitrator in the case and called upon him to give his award within 3 months vide letter dated 28-12-1955 (copy at page 117 of the Paper Book). Dr. Majumdar entered upon the reference after due notice to both the parties, and the parties participated in the arbitration proceedings. On 1-4-1956, the appellant (party No. 1) raised an objection that as the period of 3 months had expired he had no jurisdiction to proceed with the arbitration proceedings. This objection was rejected and Dr. Majumdar continued (be proceedings and ultimately delivered the award (Ex. P. 1) on 18-11-1956, whereby party No. 1 (appellant) was required to pay a sum of Rs. 15,301-3-6 to party No. 2 (respondents). The appellant, however, did not take part in the proceedings after 1-4-1956.

On 14-21957, respondents (party No. 2) filed an application under section 14(2) of the Act in the Court of the Additional District Judge, Vidisha, praying that Dr. Majumdar be directed to file the award together with all documents and papers in Court. The Court thereupon issued a notice dated 10-5-1958 to Dr. Majumdar, calling upon him to file the award. Dr. Majumdar informed the Court by letter dated 16-6-1958 that the papers relating to the arbitration proceedings had been produced in the Court of the City Magistrate, Ujjain, and they should be summoned from that Court vide page 23 of the Paper Book. Thereafter, steps were taken by the Court to obtain the proceedings from the Court of the City Magistrate, Ujjain. On 20-12-1958, Dr. Majumdar filed the award in Court and he was also examined on that day with reference to it and thereafter it was ordered that notice be issued to the appellant (vide order-sheet dated 20-12-1958). In pursuance of this order, notice dated 16-7-1959 was issued to the appellant for hearing on 5-8-1959. The notice was received by him on 3-8-1959 (vide copy of the notice at pages 25 and 26 of the Paper Book).

The appellant could not, however, attend the Court on 5-8-59 and he sent a telegram to the Court intimating that the notice was served on him on 3-8-1959, but he could not reach the Court on the 5th due to heavy rains. However, it appears that this telegram was not received by the Court when the case came up for hearing on 5-8-1959. The Court, therefore, adjourned the case to 26-9-59 on the ground that the appellant was not served as the process-fee was paid late.

On 26-9-1959 the appellant appeared in Court and informed that he had no notice of presentation of the award to the Court. On 9-11-59 he filed an objection challenging the award. This objection was disallowed by the trial Court and the decree was passed in terms of the award. Being aggrieved thereby the appellant has filed this appeal.

The learned counsel for the appellant did not question the authority of Dr. Majumdar to function as sole arbitrator in this case for the decision of the disputes between the parties in view of the arbitration agreement. His first contention, however, was that Dr. Majumdar had no authority to continue the proceedings after 1-4-1956, when the period of 3 months laid down in clause 20 of the agreement had expired (vide page 135 of the Paper Book), and, therefore, the award is void and of no consequence.

Section 3 of the Act lays down that arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the first schedule. Paragraph 3 of Schedule I of the Act reads as follows:-

The arbitrators shall make their award four months after entering on the reference or after having been called upon to act by notice from any party to the arbitration agreement or within such extended time as the Court may allow.

It is, therefore, clear that the provisions in the schedule are subject (o agreement. Since according to clause 20 of the agreement a period of 3 months was laid down for making the award, it follows that Dr. Majumdar was bound to make the award within 3 months after entering upon the reference. It was not disputed before us that the period of 3 months as laid down in the agreement expired on 1-4-1956. It is also not disputed that the respondents did not make any application to the Court under section 28 of the Act for extension of time, and there is no order of the Court extending the period for making the award as laid down in the agreement.

In Harishankarlal v. Shambhunath : AIR 1962 S. C. 78 their Lordships while dealing with the question as to what is the effect where an award is given beyond the time prescribed and there is no extension of time by the Court, observed as under in paragraph 10:-

Section 28 of the Act enables the Court to extend the time for making the award: the extension of time may be given even after the award has been factually made. So till the time is extended the award cannot be made, though, when extended, the award factually made may be treated as an award made within the time so extended. To put it differently, if time was not extended by Court, the document described as an award would be treated as non est

Since in this case, the award was made after the time prescribed for making the award had expired, and there was no extension of the time by the Court under section 28 it must be treated as non est, that is non-existent in the eye of law. Learned counsel for the respondents made no attempt to question the aforesaid legal position. But his contention was two-fold. In the first place, it was urged that time for making the award may be deemed to have been extended by the Court because it decided to enforce it. Secondly, it was contended that as no application to set aside the award was made within limitation, the appellant has no right to question the judgment of the trial Court in terms of the award in this appeal.

We have no hesitation in rejecting the first contention because in this ease the appellant had from the very beginning raised the objection that the arbitrator was not competent to make the award after the time prescribed by the agreement had expired. In view of this objection it was open to the respondents to move the Court for extension of time under section 28 of the Act, even after the award was made. But they did not take any steps to do so. Again in his application dated 14-11-59 the petitioner reiterated his contention that the arbitrator was not competent to give the award after the expiry of the period laid down in the agreement. Even then the respondents did not move the Court for extension of time. It appears to have been urged before the trial Court that once a dispute was referred to the arbitrator his authority to give an award continued until it was duly revoked in accordance with law. This contention was accepted by the trial Court vide paragraph 14 of the judgment and it was on this ground that the objection relating to jurisdiction of arbitrator to give award was overruled. This view of the trial Court is patently erroneous and even the learned counsel for the respondents made no attempt to support it. Thus, taking into account all the facts and circumstances of the case there appears to be justification for presuming that the Court impliedly extended the time for making the award. It is clear that the question of extension of time by the Court was not at all raised before it and the manner in which it acted clearly negatived any suggestion that it purported to extend the time for making the award by implication. We, therefore, hold that extension of time by the the trial Court cannot be presumed in the circumstances of this case. This is also not a case where extension of time by agreement of parties may be implied, because the appellant was from the very beginning protesting that the Arbitrator had no authority to give the award after the expiry of the time fixed by the agreement.

In order to appreciate the second contention of the learned counsel for the respondents it is necessary to refer to section 17 of the Act, which is reproduced below for facility of reference:-

Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.

No objection was raised before us that the decree was not in accordance with the award, or was in excess of it. The only point for consideration therefore is whether the application made by the appellant to set aside the award on 26-9-59 was not within time, and if so, what is the effect. The learned trial Judge rejected the application dated 26-9-59 filed by the appellant for setting aside the award as barred by time. The contention of the learned counsel for the appellant is that this finding of the trial Court is not correct. It is, therefore, necessary to consider how far this finding can be sustained on the basis of the material on record.

The limitation for filing an application for setting aside an award as prescribed under Article 158 of the Old Limitation Act was 30 days from the date of the notice of the filing of the award. The said Article corresponds to Article 119 of the New Limitation Act, which prescribes a similar period. The trial Court held that the notice dated 15-7-1959 should be construed as notice of the fact that the award has been filed in Court and since the said notice was received by the appellant on 3-8-1959 limitation should be computed from that date. It is not disputed that if the limitation is to be computed from the said date the application filed by the appellant to set aside the award on 9-11-59 would be clearly barred by time.

The learned counsel for the appellant, however contended that the notice dated 15-7-59 is merely notice of a suit based on an award and as it does not contain any statement to the effect that the award had actually been filed in the Court, it cannot be construed as a notice of the filing of the award within the meaning of Article 119 of the Limitation Act. According to him he had no notice of the filing of the award until he actually appeared in Court on 26-9-59.

On behalf of the respondents it was urged that the order-sheet dated 26-9-1959 clearly shows that the appellant had admitted before the Court that he had notice of the presentation of the award in Court and since there in nothing to show on which particular date he received notice of the award it must be presumed that he came to know about the filing of the award in Court when the notice dated 15-7-59 was received by him on 3-8-1959. This argument was apparently based on a mistake occurring in the order-sheet dated 26-9-59 as reproduced in the paper book. A perusal of the original order-sheet of that date dearly goes to show that on 26-9-59 the appellant had informed the Court that upto that date he had no notice of the presentation of the award in the Court.

Since limitation for an application to set aside an award commences- from the date on which the applicant receives notice of the filing of the award, we have to see if there is anything on record to show that the appellant had notice of the award prior to 26-9-1959.

It is no doubt true that in Neelkant v. Kashinath : AIR 1962 S.C. 666 it was held that the notice which the Court is to give under section 14(2) to the parties of the filing of the award need not be in writing and that it could be given orally. But in this ease as the appellant appeared in Court for the first time on 26-9-59, there could be no question of giving him oral notice prior to that date. It is also clear that the notice dated 15-7-59 could be construed as notice of the riling of the award, if there had been any mention of this fact therein. As there is nothing in the notice to suggest that an award had actually been filed in the Court the appellant cannot be said to have received notice of the filing of the award in Court when he received the aforesaid notice on 3-8-59. We may here point out that in Neelkant v. Kaskinath their Lordships clearly laid down in paragraph 8 that when the arbitration reference is out of Court the notice will have to go to the party formally, that is, a written notice issued from the Court to the parties concerned intimating them that an award had been filed. The only formal notice that was issued to the appellant was the one dated 15-7-59, which merely gives notice to the appellant that the suit had been filed. It does not give any notice of the fact that the award had been filed in Court. In the absence of any evidence to the contrary, it follows that the appellant first came to know about the filing of the award on 26-9-59.

Learned counsel for the appellant urged that if it is held that he received the notice of the filing of the award on 26-9-59 his application for setting aside the award was within limitation after excluding the period required for obtaing the copy of the award on that very day. It was received by him on 15-10-1959 and the application was filed on 14-11.59 (vide paragraph 9 of the judgment of the lower Court). Under sub-section (4) of section 12 of the Limitation Act the period for obtaining copy of the award is to be excluded.

Learned counsel for the respondents in this connection contended that as the appellant had failed to adduce evidence to show that he had applied for copy of the award on 26-9-59 and that the copy was actually received by him on 15-10-59 he was not entitled to the exclusion of this period. It, however, appears that the respondents never disputed these facts in the trial Court and, therefore, no issue was framed in respect thereof and the appellant got no opportunity to adduce evidence in this connection.

Since in their reply the respondents did not specifically deny the allegation in paragraph 1 of the application of the appellant that after excluding the period required for obtaining copy of the award, the application was within time from 26-9-59 they must be deemed to have admitted this fact and we hold accordingly. The only point which was pressed before the trial Court was that the appellant must be deemed to have notice of the filing of the award on 3-8-1959 when the notice of the suit was served on him and the trial Court also decided the question of limitation against the appellant on that basis. There is nothing in the judgment of the trial Court to show that the application would be barred by time, even if the limitation was to be computed from 26-9-59 when according to the appellant he first received notice of the filing of the award. In these circumstances, we do not consider it necessary to remit the case for deciding the question of limitation afresh after framing an issue regarding the period spent in obtaining copy of the award.

We, therefore, set aside the finding of the Court below that the application filed by the appellant for setting aside the award was barred by time, and, therefore, set aside the order of dismissal of the said application.

We would also like to consider the legal position which may arise in case the application is held to be barred by time as this aspect of the matter was also argued at length before us.

In Madanlal v. Sunderlal : AI R 1967 S.C. 1233 their Lordships while considering the question whether under section 17 of the Act, the Court has power to set aside the award suo motu even where an application to set aside the award is dismissed as barred by time observed as follows in paragraph 10 of the judgment:-

Assuming that the Court has power to set aside the award suo motu, we are of opinion that power cannot be exercised to set aside an award on grounds which fall under section 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Article 158 of the Limitation Act would be completely negatived. The two cases on which the applicant relies do not in our opinion support him. In Hasttmas case : AIR 1954Bom. 243 it was observed that "if the award directs a party to do an act which is prohibited by law if it is otherwise patently illegal or void it would be open to the Court to consider this patent defect in the award suo motu, and when the Court acts suo motu no question of limitation prescribed by Article 158 can arise.

From the aforesaid observations it is clear that where the award is sought to be set aside on the grounds specified in section 30 of the Act, the only remedy open to a party is to file an application within the period prescribed by Article 15S of the Old Limitation Act. If he fails to do so the Court cannot set aside the award suo motu. We have, therefore, to consider on what grounds it is open to the Court to act suo motu, where no application to set aside the award is filed or where such an application is barred by time. In order to consider this question properly it is necessary to examine closely the provisions of sections 30 and 33 of the Act which are reproduced below:-

Section 30:-

An award shall not be set aside except on one or more of the following grounds, namely:-

(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." Section 33:-

Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits:-

Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit.

Section 30 merely lays down the grounds on which the award may be set aside. It does not provide for any application being made for setting aside the award. The provision for such application is made in section 33 of the Act. It is therefore, clear that all the applications challenging the award on the grounds specified in section 30 or those specified in section 33 have to be made under section 33. A similar view has been expressed by the Full Bench of the Calcutta High Court in Shah & Co. v. Ishwarsingh : AIR 1956 Cal. 321 and by the Patna High Court in Basant Lal v. Surendra Prasad : A I R 1957 Pat 417 .

In the Calcutta case the majority view was that the Arbitration Act does not make any distinction between an application for setting aside an award and an application for adjudgment of the award a nullity and contemplates that both the applications should be made under section 33 irrespective of the ground of challenge except where the existence of an award in fact is challenged. It was further held that the non-existence or invalidity of the reference can be a ground of an application for setting aside an award. Bachawat J. who was in a minority, expressed the view that the non-existence and the Invalidity of an arbitration agreement or an order of reference to arbitrator are no grounds for setting aside an award under section 30 and that there is a distinction between an application for setting aside an award and an application for a decision that the award is a nullity and consequently does not exist and the Act contemplates that an application for the former kind may be made under section 30 while an application of the latter kind may be made under section 33. Their Lordships of the Supreme Court in Madanla vs case took notice of the conflicting views in the Calcutta case, but considered it unnecessary to express any opinion, about their respective merits.

In our view the controversy whether all the applications challenging the award are to be made under section 33 or not is of much consequence. The material point for consideration is whether all applications challenging an award are governed by Article 158 of the Old Limitation Act. In our view although all the applications are to be made under section 33 only such application as are made on the grounds specified in section 30 of the Act are governed by Article 158. The crucial point for determination, therefore, is which grounds for challenging an award fall within the purview of section 30.

Clauses (a) and (b) and first part of clause (c) of section 30 do not present any difficulty because they specify the grounds on which the award may be challenged. The words "is otherwise invalid" in clause (c) however present some difficulty. If these words are widely construed they can cover almost any conceivable ground of attack including the non-existence or the validity of an arbitration agreement. We are, however, of the view that these words should be strictly construed so as to include such grounds as affect the validity of an award and not its existence in fact or in law. The question of setting aside of an award does not arise where it is non-existent. The use of the words "existence" or "invalidity" in section 33 clearly indicates two distinct situations; one in which the very existence of the award is challenged and the other when its validity is challenged.

The language of section 17 of the Act also suggests that in certain situations, the Court may set aside an award even without an application being filed for the purpose. In Prem Sagar Chawla v. Messrs Security & Finance Ltd AIR 1968 Del 21 a Full Bench of the Delhi High Court took a similar view. The following observations made in paragraph 5 of the judgment are pertinent:-

The language of section 17 of the Arbitration Act is suggestive of the position that the Court may, in certain cases, set aside an award even without an application. If that were not so the words or to set aside the award before the words the Court shall, after the time for making an application to set aside the award has expired would have been unnecessary.

It was also held in that case that where the challenge to the award is on the ground of factual non-existence of the arbitration agreement, the case would be one of challenge to the existence of the award in section 33 and not to its validity in section 30, with the result that such an award will not have to be set aside but adjudged as non-existent. It was further held that an application under section 33 challenging the validity of an award on the ground of nonexistence of the arbitration agreement is not governed by Article 119 (b) of the Limitation Act. We are in agreement with this view and we would add that where the very existence of the award-whether in law or in fact-is challenged Article 119 (corresponding to Article 158 of the Old Limitation Act) would not be attracted.

If a party wants to challenge the validity of an award, he must file an application within limitation as prescribed by Article 158 of the Old Limitation Act (corresponding to Article 119 of the New Limitation Act). But where the challenge is not to the validity of the award on the grounds specified in section 30 but to the very existence of the same, whether in fact or in law on the ground that it is without jurisdiction or is patently illegal or void Article 158 is not attracted. In our opinion the Court can act suo motu in such a case even though no application has been made to set it aside.

We may here point out that in Madanlas case their Lordships of the Supreme Court had taken notice of the decision of the Bombay High Court in Dalichand v. Hiralal Motichand : AIR 1954 Bom. 243 in which it was held that if the award directs a party to do an act which is prohibited by law or it is otherwise patently illegal or void it would be open to the Court to consider this patent defect in the award suo motu and when the Court acts suo motu no question of limitation prescribed by section 158 arises. Their Lordships of the Supreme Court seem to have approved of the said decision. In any case it was not disapproved and no contrary opinion was expressed. We may point out that the Bajasthan High Court in Ismail v. Hansraj AIR 1955 Raj 163 also held that the Court has an inherent right to refuse to recognise an award where it happens to be inflicted by a patent illegality or something of that kind.

In the instant case the award having been given by the Arbitrator after the period of three months provided by the agreement had expired and as there was no extension of the time prescribed therefor under section 28 of the Act the award must be deemed to be non est i. e. non-existent in the eye of law as held by their Lordships in Harishankars case. The Court was, therefore, bound to take notice of this fact irrespective of the consideration where the application for setting aside the award was made within time. The Court was, therefore, in error in passing a judgment in terms of the award ignoring the aforesaid illegality merely because the application to set aside the award was barred by time.

The next question for consideration is whether we should remand the case to the lower Court for a fresh decision as we have held that the application for setting aside the award was within time. We consider that it is not necessary to do so because the award on the face of it is wholly without jurisdiction and as such void.

It was urged on behalf of the respondents that under section 39 of the Act appeal lies only from an order setting aside or refusing to set aside an award and if it is held that no question for setting aside arises in a case like this because the award is non-existent no appeal would lie. We need not, however, go into this question because even if no appeal lies in a matter like this, this Court has ample power to set aside the decision of the lower Court in exercise of its revisional powers particularly when the illegality is patent.

We, therefore, allow this appeal and set aside the decree of the trial Court. The claim of the respondents in terms of the award shall stand dismissed. The respondents shall bear their own costs and pay that of the appellant in both the Courts. Counsels fee Rs. 260, if certified.