Delhi High Court
M/S Simplex Concrete Piles (I) Ltd vs Union Of India on 21 April, 2009
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA.No.835/2003 in CS(OS) 614A/2002
% Date of decision: 21st April, 2009
M/S SIMPLEX CONCRETE PILES (I) LTD ....... Petitioner
Through: Mr V.P. Chaudhary, Sr Advocate with
Mr G. Tushar Rao and Mr Nitinjya
Chaudhary, Advocates.
Versus
UNION OF INDIA ....... Respondent
Through: Ms Monika Garg, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
RAJIV SAHAI ENDLAW, J.
1. The respondent Union of India seeks condonation of delay of 118 days in filing the objections to the arbitral award, under the Arbitration Act, 1940. The application has been contested vehemently by the petitioner. At the outset, it is contended that the delay in filing the objections is of 315 days and not 118 days as represented by the respondent. Thus, at the outset, it has to be determined as to how much is the delay. The respondent has computed 118 days on the premise that upon receipt of award in this court, on 2nd April, 2002 notice of filing of the award was ordered to be issued to the parties for 23th August, 2002; that even though notice had not been served on the respondent, but the counsel for the respondent appeared on 23rd August, 2002; that the objections IA.No.835/2003 in CS(OS)614A/2002 Page 1 of 9 ought to have been filed within 30 days thereof but have been filed on 18th January, 2003.
2. On the contrary, the senior counsel for the petitioner has contended that the record shows that the arbitrator had forwarded the award dated 29th December, 2001 together with the arbitral record under cover of his letter dated 18th January, 2002 to Mr Sanjay Kaul, ASW, CWE, New Delhi, Delhi Cantt of the respondent with authority to file the same in this court; that the said officer of the respondent filed the said record in this court under cover of his letter dated 5th February 2002, on 6th February, 2002 and thus the respondent acquired knowledge of the filing of the award on 6th February, 2002 itself and ought to have filed the objections within 30 days thereof. It is thus contended that so computed, the delay is of in fact 315 days.
3. The limitation for preferring objections to the award, under Article 119 of Schedule I of the Limitation Act, 1963 is of 30 days commencing from the date of service of the notice of the filing of the award. The senior counsel for the petitioner has relied upon (a) Food Corporation of India Vs E. Kuttappan (1993) 3 SCC 445 holding that when on the request of a party, the arbitrator forwards the award to the advocate for that party for filing in the court, such party had notice of the filing of the award on the date of his advocate filing the same in the court. (b) National Insurance Co. Ltd Vs Punam Chand Jain AIR 1983 Calcutta 148 holding that the limitation runs from the date of knowledge of the filing of the award.
(c) Gurbax Singh Vs Punjab Mandi Board AIR 2004 SC 1269 that the limitation runs from the issuance of notice of filing of the award and not from the date of filing connected papers to the award and further holding that issuance of fresh notice by substituted service IA.No.835/2003 in CS(OS)614A/2002 Page 2 of 9 does not negate effect of deemed service of first notice effected on earlier date. (d) The State of Bihar Vs Liason and Contracts AIR 1983 Patna 101 again holding that knowledge of filing of the award is enough to start the limitation for preferring objections thereto and separate notice of filing of the award is not required. (e) Nilkantha Sidramappa Ningashetti Vs Kashinath Somanna Ningashetti AIR 1962 SC 666 holding that limitation for preferring objections begins from intimation of filing of the award and there is no requirement for the service of a written notice and (f) Devandas Kishnani Vs Nanikram Kishnani AIR 1993 Bombay 76 also holding that the limitation runs from the date of knowledge of filing of the award.
4. Section 14(2) of the Arbitration Act, 1940 requires the court, upon the award having been filed therein to thereupon give notice to the parties of the filing of the award.
5. In the present case the arbitrator was an official of the respondent Union of India, posted at Pune. The petitioner, after knowledge of making of the award on 28th January, 2002 filed CS(OS)371A/2002 in this court under Section 14 of the Act for filing of the award. In the said suit, the petitioner impleaded the Union of India through the Chief Engineer Delhi Zone, M.E.S., Army Headquarters, Delhi Cantt as the respondent No.1, the Engineer-in- Chief (Surveyor of Works Dte.) Army Headquarters, Kashmir House, DHQ PO, New Delhi-110011 as the respondent No.2 and the arbitrator as the respondent No.3. Notice of the said suit was issued to the arbitrator only. The arbitrator as aforesaid had already under cover of his letter dated 18th January, 2002 (supra) to the official of the respondent at Delhi Cantt and with notice to the Chief Engineer, Delhi Zone, Delhi Cantt. to the petitioner and to the Commander IA.No.835/2003 in CS(OS)614A/2002 Page 3 of 9 Works Engineers, Delhi Cantt had forwarded the award for filing in this court and the award was filed in this court on 6th February, 2002. Upon receipt of the said record in this court, the same was not filed in CS(OS)371A/2002 (supra) (which had not been listed till then) but was filed in CS(OS)614A/2002. The said CS(OS)614A/2002 was listed before the Joint Registrar of this court first on 2 nd April, 2002 when none appeared before the Joint Registrar and the Joint Registrar as aforesaid ordered notice of the filing of the award to be issued to the parties.
6. It is significant that though a copy of the letter dated 18 th January, 2002 of the arbitrator was marked to the petitioner also but the petitioner, in spite of the same, filed CS(OS)371A/2002 in this court which was listed first on 26th February, 2002 and thereafter on several dates. The petitioner did not inform this court in CS(OS)371A/2002 of the receipt of the letter dated 18th January, 2002 from the arbitrator. Only on 15th January, 2004 i.e., after the objections had been filed by the respondent alongwith the application for condonation of delay in filing the objections, the petitioner informed the court in CS(OS)371A/2002 for the first time that the award had already been filed in this suit. It was only on 17th March, 2005 thereafter that the CS(OS)371A/2002 was disposed of.
7. The official of the respondent Union of India, acting as representative of the arbitrator in the matter of filing of award in this court, is not shown to be authorized by any rule or procedure of functioning of Union of India or the Government for forwarding the award to the department concerned involved in the arbitration for filing in the court. The letter dated 18th January, 2002 of the arbitrator in the present case is thus not to the department of the respondent concerned in the proceeding but to an official of the IA.No.835/2003 in CS(OS)614A/2002 Page 4 of 9 respondent at Delhi, and merely for convenience. Merely because the arbitrator himself being an employee of Union of India has sought the assistance of his colleague to save the bother of coming personally to Delhi for filing of the award in this court and/or to avoid the vagaries of post, does not mean that the respondent had knowledge of the filing of the award. Union of India is a humungous entity and various officials and functionaries whereof in the matter of their conduct are governed by rules or charter. It comprises of lakhs of officials and departments and just because the legal entity is one, knowledge of one official cannot ipso facto be imputed to the other. The objections ultimately filed by the respondent to the award are supported by the affidavit of one Mr V.K. Gupta, Garrison Engineer, EME, RR Hospital, Rao Tula Ram Marg, Delhi Cantt, New Delhi. It is not as if the objections have been filed by the same officer at Delhi to whom the award had been forwarded by the arbitrator from Pune. Thus, in the absence of any proof, it cannot be held that knowledge of the official authorized by the arbitrator to file the award is knowledge of the department of the respondent concerned in this arbitration.
8. Food Corporation of India (supra) cited by the senior counsel for the petitioner is distinguishable. In that the award was sent by the arbitrator to the advocate engaged by party to arbitration, that too upon receipt of request from that very party. It was in these circumstances held that that party had knowledge of filing of award by its advocate in court. Here, there is nothing to show that the department of Union of India involved in arbitration had requested the forwarding of award to Delhi for filing in court. The letter dated 18th January, 2002 of arbitrator to Registrar of this IA.No.835/2003 in CS(OS)614A/2002 Page 5 of 9 court on the contrary shows that the petitioner had vide its letter dated 8th January, 2002 to arbitrator requested so.
9. I am also of the view that mere ministerial act of filing of the award in this court is not enough for objections to be preferred. The filing of documents and award in this court is governed by rules and it is not necessary that whatever is filed in this court is taken cognizance of by the court. This court has a registry which scrutinizes the documents and pleadings filed before it and if not found to be in order, the same are not even put up before the court and are returned/rejected. The rules further provide for the time for refilling of the said documents/pleadings after removing the objections / defects, if any, for rejection/return by the registry. If the refilling is not done within the prescribed time, the benefit of the date of first filing is not to be available. Section 14 of the Arbitration Act, as aforesaid, requires the court, upon finding the award to have been filed in accordance with the law, to issue notice of filing thereof. In my considered view, it is only when there is a validly filed award before the court and of which the court has taken cognizance, can the question of preferring objections thereto arise. What purpose would be served in filing the objections when there is no award before the court. Thus, in my view, considering the rules of filing in this court, it cannot be said that the mere ministerial or physical act of the representative of the arbitrator leaving the award on the filing counter of this court would commence the running of the time for filing the objections, even if knowledge thereof is imputed to the respondent. The rules of this court further provide for destruction of documents returned as defective or under objection and which are not taken back by the parties. Thus, to test the proposition, it is possible that an award filed in this court may IA.No.835/2003 in CS(OS)614A/2002 Page 6 of 9 remain lying under objections and may not be taken cognizance of by the court at all. In those circumstances there can be no question of filing objections thereto. The Apex Court also in Food Corporation of India (supra), notice in para 11 of the judgment is taken of acceptance by court of filing of the award. Here, though the award was filed as aforesaid on 6th February, 2002, the listing thereof before court is much later, on 2nd April, 2002. Prior thereto, on 28th January, 2002 CS(OS) 371A/2002 had been filed in this court by petitioner for the relief of filing of the award in this court. If the period for filing objections is to be counted from 6th February, 2002, as contended by the petitioner, the limitation therefor will expire even before the court accepted the filing of the award. Till then, there was no suit, in which objections could be filed / preferred.
10. It is also significant that on 2nd April, 2002 when this court first took cognizance of the award and ordered the issuance of notice of filing of the award to the parties, none had appeared before this court, not even the official of the respondent who had been authorized by the arbitrator to file the award in this court. This is another distinguishing feature from the cases cited. No advocate of the respondent was involved in this case. Thus, it cannot be said that official filing the award would have even known of the listing of the award before this court on 2nd April, 2002. The petitioner itself did not know of the same and inspite of arbitrator acting on its instructions and with intimation to petitioner, continued to pursue independent remedy by way of CS(OS)371A/2002.
11. I, therefore, conclude that the date of computation of 30 days for filing the objections shall be from 23rd August, 2002 as contended by the respondent and not from 6th February, 2002 as contended by the petitioner. The delay is thus of 118 days and not of 315 days. IA.No.835/2003 in CS(OS)614A/2002 Page 7 of 9 The respondent has contended that the objections were got drafted and signed in September, 2002 itself; however, the counsel for the respondent had shifted his office in late September, 2002/early October, 2002; that the file had thus got misplaced; that the official of the respondent got in touch with the counsel for the hearing on 2nd January, 2003, to which date the matter had been adjourned after 23rd August, 2002 and when it was realized that the objections had not been filed; that the same were filed immediately thereafter.
12. The senior counsel for the petitioner has contended that the allegations are vague as no affidavits of the concerned persons have been filed. He has also relied upon the order dated 16th December, 2005 in IA.No.2179/2000 in CS(OS)1061A/1999 in another matter of the petitioner and in which the application for condonation of delay was dismissed. Per contra, the counsel for the respondent has relied upon Bharat Coking Coal Ltd Vs L.K. Ahuja & Co. (2001) 4 SCC 86 and Municipal Corporation, Gwalior Vs Ramcharan (2002) 4 SCC 458. I do not find the former of the said judgments apposite to the facts of the case. In the later judgment it has been held that the courts ought to concentrate on the merits of the matter and ought not to take rigid and too technical view. The delay in that case was of 39 days and attributed to noting of a wrong date and was condoned. In the present case I find the explanation given for delay to be plausible. Of course, at this stage, the truthfulness of the same in absolute terms cannot be decided. The only option is to list the matter for evidence on the application, if truthfulness is to be determined beyond doubt. However, such approach is not feasible/practical and would lead to further delay. The objections have already remained pending for the last over six years and I deem it expedient that the same be considered on merit. It has been IA.No.835/2003 in CS(OS)614A/2002 Page 8 of 9 repeatedly laid down by the Apex Court that the courts in the matter of condonation of delay ought not to take a pedantic approach.
I thus find the ground for condonation of delay to have been made out. The application is allowed.
RAJIV SAHAI ENDLAW (JUDGE) April 21, 2009 M IA.No.835/2003 in CS(OS)614A/2002 Page 9 of 9