Delhi High Court
M/S Anish (India) Export & Ors. vs Sh.Rajender Prasad Gupta & Ors. on 25 November, 2008
Author: V.K.Shali
Bench: V.K.Shali
5* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 77/2007 & FAO 78/2007
Date of decision: 25.11.2008
1. FAO 77/2007
M/S ANISH (INDIA) EXPORT & ORS. ..... Appellant
Through: Mr.Feroze Ahmed, Adv.
versus
SH.RAJENDER PRASAD GUPTA & ORS. ..... Respondent
Through: Mr. V.B.Arya and Ms.Nimisha Agarwal,
Advs.
AND
2. FAO 78/2007
SHRI ANISH TANDON ..... Appellant
Through: Mr.Gagan Mathur, Adv.
versus
SH.RAJENDER PRASAD GUPTA & ORS. ..... Respondent
Through: Mr. V.B. Arya and Ms.Nimisha Agarwal,
Advs.
CORAM:
HON'BLE MR. JUSTICE V.K.SHALI
1. Whether reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be reported in the Digest? NO
JUDGMENT
% V.K.SHALI, J (Oral)
1. These are two First Appeals against the orders passed by Smt. Shalinder Kaur, Additional District and Sessions Judge, Delhi in Suit Nos.120/2005 titled as M/s Anish (India) Export & Ors. Vs. Sh.Rajinder Prasad Gupta & Ors. and Suit No.121/2005 titled as Sh.Anish Tandon Vs. Sh. Rajinder Prasad Gupta & Ors. By virtue of the aforesaid order, FAO Nos.77/2007 & 78/2007 Page 1 of 5 learned Additional District and Sessions Judge, Delhi has dismissed the objections of the appellant filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as „Act‟) on the ground that they are beyond the period of limitation. Feeling aggrieved from the said order, the present appeals have been preferred.
2. Briefly stated the facts of the cases are that the appellant filed objections for setting aside the award dated 8th January, 2005 passed by the sole arbitrator Mr.Rajinder Prasad Gupta in the aforesaid two cases. It was contended that by the aforesaid award, an amount of Rs.2,34,762/- along with interest @ 15% per annum each was awarded in favour of the respondents. It is contended that the aforesaid award was passed without jurisdiction and is illegal and invalid as there was no arbitration agreement between the parties for appointing Sh.Rajainder Prasad Gupta as an arbitrator. Without going into the questions of merit of the award, the case of the appellant was that though the award was passed on 8th January, 2005 however, they got the intimation about the award for the first time only when they received the application seeking execution of the award accordingly, they applied for certified copy of the award to the Hindustan Mercantile Association (Regd.) which had appointed the arbitrator and they learnt about the factum of award having been passed on 8th January, 2005. The factum of their knowledge about the award was got by them only on 6th June, 2005 and they chose to file the objections under Section 34 of the Act on 16th August, 2005 against the award. Learned Additional District Judge, Tis Hazari Courts, Delhi with reference to Section 34 (3) of the Act was of the opinion that the period of limitation for filing the award is to be reckoned from the date of the award itself i.e. from 8th January, 2005 and if done so, the period of limitation has expired long back while as the objections have been filed only on 24th FAO Nos.77/2007 & 78/2007 Page 2 of 5 August, 2005. Accordingly, objections were held to be beyond the period of limitation.
3. I have heard the learned counsel for the parties and gone through the record of the arbitrator. Section 34 (3) of the Act reads as under:-
"(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:"
A perusal of the aforesaid Section shows that the application for setting aside the award has to be made within three months from the date of receiving of the arbitral award. In the instant case, there is no dispute that the award was passed on 8th January, 2005. The plea which has been taken by the appellant is that he did not receive the copy of the award. On the contrary, he learnt about the award through Hindustan Mercantile Association (Regd.) and accordingly applied for certified copy which was given to him in June, 2005 and thus the period of limitation of three months in terms of Section 34 (3) of the Act is to be reckoned from the said date of his knowledge. If done so, the period of limitation would expire in the month of September, 2005 while as he choose to file the objections on 24th August, 2005 and thus the objections of the appellant were within time and it could not have been rejected.
4. No doubt, Section 34 (3) of the Act clearly lays down the period of limitation is three months from the date of receipt of the arbitration award, but the onus is on the person claiming the benefit of limitation to show that prima facie his objections are within time. In the instant case, award has been passed on 8th January, 2005. I have perused the record of the FAO Nos.77/2007 & 78/2007 Page 3 of 5 arbitrator which shows that on 8th January, 2005 that is the day on which the award was passed copies of the award have been dispatched by UPC by registered post as well as by ordinary post on all addresses of the appellants which were available on the record of the arbitrator and which are tallying with the address which have been given in the memo of parties to appeal by the appellants. Although one registered letter has been received back but there is no other letter which has been received back from the address of the appellant. Under section 114 (e) of the Evidence Act, which lays down that a presumption of Official Acts have been performed and accordingly a presumption can be drawn that if a letter is addressed to a person and it is shown to have been dispatched then presumption is that such letter has been delivered to him.
5. In the instant case on the basis of the postal receipts and the UPC certificate, a presumption of fact can be drawn that the letters accompanying the award which was dispatched on 08th January, 2005 was received by the appellant within a reasonable time. The onus was on the appellant to show that the he did not receive the letter containing the award. The appellant has not placed on record any documentary or oral evidence to dislodge that presumption of fact. On the contrary he seems to have taken a false plea that the letters were not received by him. Learned counsel for the appellant has stated that the postal receipts which are placed on record do not bear the complete address of the appellant. It is a common knowledge that the postal receipt which is issued by the post office does not bear the complete address unless and until special care is taken to have the same mentioned but the letter accompanying the award clearly show that three addresses were mentioned which were given by the appellant. Therefore, it is reasonably safe to presume that the awards were sent to the appellant on 8th January, 2005 which must have FAO Nos.77/2007 & 78/2007 Page 4 of 5 been received by them within a week and ensuing from the said date. If that be so, the period of limitation has to be necessarily reckoned with effect from maximum from 15th January, 2008 or so if done so admittedly the present objections have been filed more than three months after the date of receipt of the award.
6. No doubt the provision of condonation of delay ought to be construed liberally and only quantum of delay must not be seen, but it is also correct that bonafides of a person must be seen. In the instant case, if we judge the conduct of the appellant with regard to the condonation of delay in filing the objections, I am of the considered opinion that not only objections are barred by time but even the delay does not deserve to be condoned on account of the false stand taken by the appellant to the effect that they did not receive the copy of the award which is belied from the record of the arbitration which has been seen by this Court. Condoning the delay in the instant case would be putting premium on dishonest stand of a party, which should not be done in any circumstances whatsoever.
7. For these reasons, I am of the considered opinion that there is nothing wrong or illegal or improper in the order passed by the learned Additional District Judge in rejecting the objections under Section 34 of the Act of the appellant on the ground of limitation itself. Accordingly, the appeals are dismissed. No order as to costs.
V.K.SHALI, J November 25, 2008 RN/KP FAO Nos.77/2007 & 78/2007 Page 5 of 5