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TMI Blog2016 (6) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... sel have addressed this Court on the issue of limitation. 3. Learned counsel appearing for the petitioner submits that though the impugned award was rendered by the learned arbitrator on 18th July 2014, the signed copy of the impugned award was served upon the petitioner only on 13th March 2015. He submits that the arbitration petition is lodged by the petitioner on 22nd June 2015. He submits that the petitioner had applied for certified copy of the award on 26th February 2015 which was received by the petitioner from the learned arbitrator on 13th March 2015. He submits that period of 16 days in obtaining certified copy of the award from the learned arbitrator is to be excluded under Section 12(2) of the Limitation Act, 1963. He submits that the petition is thus filed within the period of three months from the date of getting signed copy of the award from the learned arbitrator and thus the petition was filed within time prescribed under Section 34(3) of the Arbitration Act. 4. In support of his submission that period of limitation as prescribed under Section 34(3) of the Arbitration Act would commence from the date of the petitioner getting a signed copy of the arbitral award f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Arbitration Act would commence only from the date of service of signed copy of the award from the learned arbitrator and not if the party had claimed service of such award. He submits that it is not the case of the respondent that the petitioner had refused to accept the copy of the arbitral award from the learned arbitrator. 7. In view of the dispute raised by the parties as to the date of receipt of copy of the signed award from the learned arbitrator, this Court by an order dated 7th April 2016 requested the learned arbitrator to file original arbitration proceedings in this Court. Pursuant to the said order passed by this Court, the learned arbitrator filed the records and proceedings of the arbitration on 30th April 2016. This Court permitted both the parties to take inspection of the said records and proceedings of the arbitration. 8. Mr.Damle, learned senior counsel appearing for the respondent, on the other hand, submits that the learned arbitrator had forwarded copies of the signed award to both the parties along with his covering letter dated 18th July 2014 at the addresses mentioned on the records of the learned arbitrator. Learned arbitrator had forwarded all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or filing the arbitration petition under Section 34 (3) of the Arbitration Act had commenced on the date when the petitioner unclaimed the said copy of the arbitral award sent by the learned arbitrator. He submits that the petitioner having not claimed the copy of the said award sent by the learned arbitrator, though intimation was posted by the post office, it amounted to a good service. In support of his submission, learned senior counsel placed reliance on the judgment of the Calcutta High Court in the case of New Globe Transport Corporation Vs.Magma Shrachi Finance Ltd., reported in AIR 2011 Calcutta 72 and in particular paragraphs 9, 11, 12 and 15 thereof. 12. Learned senior counsel also placed reliance on the judgment of the Supreme Court in the case of C.C. Alavi Haji Vs.Palapetty Muhammed and Anr., reported in (2007) 6 SCC 555 and in particular paragraphs 13 to 15 in support of the submission that Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice had been effected when it is sent to the correct address by the registered post. He submits that unless and until the contrary is proved by the addressee, service of notice is deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned arbitrator along with his covering letter dated 18th July 2014 had dispatched the arbitral award to both the parties at their addresses on record of the arbitral proceedings. The respondent received a copy of the said award by hand delivery from the learned arbitrator on 23rd July 2014. 17. A perusal of the record indicates that on the said envelope containing the arbitral award, the postman had made an endorsement 'INT POST' dated 21st July 2014 and 22nd July 2014. The petitioner has suppressed this fact in the arbitration petition as well as in the affidavits filed before this Court in the aforesaid proceedings. It is only when the respondent raised a plea of limitation in filing the present petition beyond the period of limitation prescribed under Section 34(3) of the Arbitration Act, in the additional affidavit filed by the petitioner on 6th June 2016, the Director of the petitioner alleged that on 19th July 2014, he had left Mumbai to see his old parents who are allegedly staying at Bhopal in Madhya Pradesh as part of regular routine and returned back to Mumbai on 26th July 2014. It is alleged that wife of the said director is employed and his children a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned arbitrator had posted signed copy of the arbitral award, the petitioner used to receive various correspondence and notices from the learned arbitrator. The petitioner had received signed copy of the award also at the same address in the month of March 2015. 21. Under Section 3(1) of the Arbitration Act, any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and if at none of the places referred to in clause (a) of Section 3 can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it. Under Section 3(2) of the Arbitration Act, the communication is deemed to have been received on the day it is so delivered. There is no dispute that pursuant to the said envelope containing the signed copy of the award having been posted by the learned arbitrator along with his covering letter dated 18th July 2014, the postman had made two atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice would amount to refusal of service and in that situation, service of arbitral award is deemed to have been effected on the sendee. In my view, the judgment of the Supreme Court in the case of C.C. Alavi Haji (supra) and the judgment of Calcutta High Court in the case of New Globe Transport Corporation (supra) apply to the facts of this case. 25. In my view, the principles laid down by the Supreme Court in the case of C.C. Alavi Haji (supra) while construing the provisions of Negotiable Instruments Act, 1881 and Section 27 of the General Clauses Act, 1897 can be extended while construing the expression 'delivery' within the meaning of Section 31(5) and Section 34(3) of the Arbitration Act. I am in agreement with the views expressed by the Calcutta High Court in the case of New Globe Transport Corporation (supra). 26. In my view, if the submission of the learned counsel for the petitioner that till service of signed copy of the arbitral award from the learned arbitrator is actually received by the petitioner though it was not claimed by the petitioner inspite of intimation posted by the postman, it will not amount to delivery of the award under Section 31(5) of the Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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