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TMI Blog2014 (8) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent contests the petition contending that the same is barred by the law of limitation and also on merits. 2. Briefly stated the facts of the dispute decided by the arbitral award are as follows:- One Vinod Doshi (since deceased), father of the petitioner, carried on business of film production in the name and style of "M/s. V.R. Pictures". He intended to produce a Hindi feature film titled "Trishul-The Game of Death". He had approached the respondent a financer, for financial assistance. Tripartite agreement dated 18th June, 2004 was executed between the father of the petitioner, the petitioner and the respondent for rendering financial assistance in which the father of the petitioner was described as the "Producer", the petitioner as the "Guarantor" and the respondent as the "financer". Under the agreement, the respondent agreed to provide financial assistance to the extent of Rs. 60,00,000/- payable as under:- Rs.25,00,000/- Amt transferred from picture "Deewaar-let's bring our heroes home" Rs.35,00,000/- As per the discretion of the Third part subject to progress of the said picture. Rs.60,00,000/- Total (Rupees Sixty Lacs Only) The amount was to be repaid "alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary objection to the petition that, it is barred by the law of limitation, the same will have to be considered before touching upon the merits of the matter. The impugned award is dated 10th August 2008. The present petition was filed on 26th February 2010. Therefore according to the respondent the same is barred by limitation. The respondent in his affidavit-in-reply points out that, Advocate Gajendra Singh had appeared before the arbitral tribunal on behalf of the petitioner and sought adjournments. The copy of the award therefore had been forwarded by IMPPA to Advocate, Gajendra Singh. The petitioner was thus, throughout, aware of the arbitration proceedings and had knowledge of the award on 15th September, 2009. 5. The petitioner on the other hand disputes that there is delay in filing application under Section 34 of the Arbitration Act. He, claims that he learnt about the award for the first time in the month of January, 2010, when he received notice of the execution proceedings initiated by the respondent and therefore the petition filed on 18th February, 2010 is within the prescribed period of limitation. According to him, though a copy of the award had been received by Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys. The delivery was acknowledged by someone in the office, probably by the Inwards Clerk. The Chief Engineer received the copy of the award from the tribunal more than a week thereafter. While considering the question of bar of limitation for application for setting aside the arbitral award under Section 34 of the Arbitration Act, the Apex Court considered the provision of Section 31 of the Arbitration Act, to note that according to it's sub-section (5), the term "party" used in the provision would be as defined by Clause-(h) of Section 2 of the Act, as being "a party to an arbitration agreement". When it came to assign the meaning to the term, "party" in the context of the State or a Department of the Government, Apex Court held that the term "party" has to be construed to be a person directly connected with and involved in the proceedings and who is in control of the proceedings before the arbitrator. On the significance and importance of delivery of an arbitral award under Section 31(5) the Apex Court 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession "party making that application had received the arbitral award" from Section 34 of the Arbitration Act, cannot be read in isolation and it must be understood in the light of what is said earlier in Section 31(5) that requires a signed copy of the award to be delivered to each party. Reading of the two provisions together, it is clear that limitation prescribed under Section 34(3) would commence only from the date the signed copy of the award is delivered to the party making an application for setting it aside. On the commencement of the period of limitation, the Apex Court further observed as follows:- "15. The highlighted portion of the judgment extracted above, leaves no room for doubt that the period of limitation prescribed under Section 34(3) of the Act would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be extended to the petitioner because his role in the transaction was not that of a producer but it was of a guarantor. 15. In my opinion, there can be no merit in the argument of Mr. Davar. Admittedly, all the three persons to the transaction are members of IMPAA and the Articles of Association of IMPAA provides for resolution of the disputes inter se it's members, by way of arbitration conducted by "Sub-Committee of Producers Grievances Cell and In-House Settlement". It is nobody's case that the IMPAA makes any distinction amongst it's members. Therefore, even if the dispute between it's members arises out of any capacity other than strictly that of a producer in the transaction between the parties, there can be no escape from the arbitration clause in the Articles of Association. 16. There is one more reason for rejecting the argument of Mr. Davar of want of Arbitration agreement between the parties. It is the specific case of the respondent that father of the petitioner carried on business of film producing in the name and style of M/s. V.R. Pictures. The petitioner, who is also a producer, on the death of his father, continued the business of the father in ..... 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