9911796707
TMI Blog2007 (4) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Judgment Debtor should also be returned on or before 15.1.2005. 2. The assailed Award purports to have been signed on 20.1.1997. Execution Proceedings have inexplicably been initiated by the Respondent after the passage of seven years thereafter. The Appellant/Objector categorically contends that a copy of the Award was not delivered to it at any time, even though this was statutorily required to be done. Section 31(5) of the A and C Act states that After the arbitral award is made, a signed copy shall be delivered to each party. The further argument on behalf of the Appellant is that it learnt of the passing of this Award only on 23.3.2004 when it received notice in the Execution Proceedings (Ex. P. 4/2004). The Appellant thereafter states that files of the Execution Case were subsequently inspected, a copy of the award obtained from the Respondent/Claimant and now the objections under Section 34 of the Arbitration and Conciliation Act, 1996 are being filed . The Objections under Section 34 of the A and C Act challenging the Award are dated 31.7.2004 of which the supporting Affidavit is dated 30.7.2004 They came to be eventually filed in the Registry of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute, Courts had ruled that there was no scope for enlarging time or condoning delay in approaching the Court by way of Objections to an Award, which position would a fortiori continue in the prevailing statutory scheme. The conclusion reached in Enkay Construction Co. v. The Vice Chairman DDA (2000) DLT 748 was that the uniform view is that if Objections are filed beyond the period of 30 days as laid down in the Arbitration Act, 1940, they cannot be looked into since the Court does not possess power to entertain Applications under Section 5 of the Limitation Act. The opinion of various High Courts had been considered. Reliance had been garnered from these paragraphs of Madan Lal v. Sunder Lal [1967]3SCR147 : (7) This analysis of the relevant provisions of the Act contained in Chap. II which apply mutates mutants to arbitrations of the other two types shows that the Court has to pronounce judgment in accordance with the award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees no cause to set aside the award. The Court has to wait for the time given to a party to make an application for setting aside the awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limitation. (9) It is not in dispute in the present case that the objections raised by the appellant were covered by Section 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection. As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in Section 30 within the period of limitation and, Therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under Section 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide on an objection made beyond the period of limitation, even though no application has been made for setting aside the award within the period of limitation. Clearly, Therefore, where an objection as in the present case raises grounds which fall squarely within Section 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting aside the award unless it is made within the period of limitation. Saha and Co.'s case AIR 1956 Cal 321 , Therefore, also does not help the appellant. 5. Reliance has been placed by Mr. Santosh Kumar, learned Counsel for the Appellant, on Union of India v. Tecco Trichy Engineers and Contractors AIR 2005 SC 1832 which has been decided without reference to Popular Construction. Their Lordships observed as follows: 8. The delivery of an arbitral award under Sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be received by the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward in the Court. 11. We cannot be oblivious of the fact of impersonal approach in the government departments and organisations like Railways. In the very nature of the working of government departments a decision is not taken unless the papers have reached the person concerned and then an approval, if required, of the competent authority or official above has been obtained. All this could not have taken place unless the Chief Engineer had received the copy of the award when only the delivery of the award within the meaning of Sub-section (5) of Section 31 shall be deemed to have taken place. 12. The learned Single Judge of the High Court as also the Division Bench have erred in holding the application under Section 34 filed on behalf of the appellant as having been filed beyond a period of 3 months and 30 days within the meaning of Sub-section (3) of Section 34. There was a delay of 27days only and not of 34 days as held by the High Court. In the facts and circumstances of the case, the delay in filing the application deserves to be condoned and the application under Sub-section (1) of Section 34 of the Act filed on behalf of the appellant deserves to be heard and decided o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the contrary, the return would facilitate and ensure that the Objections are dealt with and decided by the competent Court of jurisdiction. It was on that reasoning that their Lordships pronounced in Tecco Trichy that Section 14 of the Limitation Act, 1963 is applicable to the A and C Act, 1996. This Judgment, Therefore, is not a precedent for the proposition that delay in filing Objections even beyond the period of 120 days from the date on which the Award had been delivered/served on the concerned party can be condoned. 8. Mr. Santosh Kumar, learned Counsel for the Appellant, has sought to rely on Transparent Packers v. The Arbitrator-cum-Managing Director JT 2000(7) SC 574, in our understanding which has scarce relevancy. All that was observed was that a deponent need not invariably enter the witness box for his affidavit to attract evidentiary value. The dismissal of the application seeking condensation of delay only on this ground was reversed. Thereafter reference has been made to State of Haryana v. Chandra Mani 2002(143)ELT249(SC) placing special emphasis on the observations to the effect that the State cannot be put on the same footing as an individual. Their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings are abusive, this is no longer the position. Whilst to commence proceedings within a limitation period is not in itself an abuse, delay in commencing proceedings is a factor which can be taken into account in deciding whether the proceeding are abusive. If proceedings of a type which would normally be brought by judicial review are instead brought by means of an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process, can taken into account whether there has been unjustified delay in initiating the proceedings. 11. The Award has been filed in Execution Proceedings bearing Ex. 4/2004 by the Decree Holder, along with EA 39/2004 dated 27.1.2004 It has not been received directly from the Arbitral Tribunal. The Registry has reported that the son of the deceased Arbitrator has stated that the arbitration files had been handed over to the concerned parties/Advocates. Material details are conspicuously missing. The Award, which has been purportedly signed by the Sole Arbitrator only on the last page, has not been engrossed on adequate/proper stamp paper. The Sole Arbitrator died on 14.3.2002. Learned Counsel for the Appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the name of the work, the division or department to which the matter pertained or even the contract number. It is needless to point out that Ministry of Urban Development has a very large area of operation covering several departments of the Government including C.P.W.D., which itself has several divisions spread all over the country. Therefore, unless the notice of filing of the award gives the details of the arbitration matter in which award is given, it cannot be considered as a proper notice in accordance with law. Besides, it was not enough to direct notice of the filing of the award to the Secretary to the Govt. of India, Ministry of Urban Development particularly when the notice failed to disclose the material particulars of the matter. In the circumstances, the notice ought to have been sent to the Executive Engineer, who was Engineer-in-charge of the work, and was the person who had signed the contract on behalf of the Union of India and was dealing with the matter. Therefore, it was necessary that he should also have been arrayed as a party respondent in the matter. Merely arraying Union of India and sending the notice to the Secretary, Ministry of Urban Development wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suit would result in the service being irregular. The same approach commends itself to us in the present case also, namely, that the Appellant must be deemed to have been delivered a copy of the Award today. If this is so, the Objections, being already on the record, cannot be held to be time- barred. 14. It is in the above analysis that we record the following conclusions : Firstly, that the Court does not possess any power to condone delay after the lapse of thirty days from the expiry of three months from date of the delivery of a copy of the Award on the parties. It would be absurd to contend that service of the Award on one party would be legally efficacious on the opposite contestant. Precedents exhorting a liberal approach especially where the State is concerned do not apply to the A and C Act which has not only taken care to generally restrict interference by a Civil Court, but after laying down a period of 30 days in the proviso to Section 34(3) has taken pains to state that thereafter no scope of enlargement is possible. Secondly, we hold that Section 32(5) of the A and C Act must be strictly complied with and the Award must actually be served on the officer concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
