Rajasthan High Court - Jodhpur
M/S Ganpati Multi Commodity Business vs Amritpal on 3 May, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 10 / 2018
M/s Ganpati Multi Commodity Businees Pvt. Ltd., 37, K Block, Sri
Ganganagar.
----Petitioner
Versus
Amritpal Son of Shri Kishorilal Agarwal, Resident of Sadar Bazar,
Khajuwala, Bikaner.
----Respondent
_____________________________________________________
For Petitioner(s) : Ms. Rekha Borana.
For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 03/05/2018 This revision petition is directed against the order dated 19/8/2017 passed by the Additional District Judge No.1, Sriganganagar, whereby, the objection raised by the petitioner regarding application filed by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act, 1996') being barred by limitation has been rejected.
The respondent filed an application under Section 34 of the Act on 7/7/2014 seeking setting aside of the award dated 6/8/2013. It was inter alia claimed in the application that the information about the ex-parte award was received by him on 22/4/2014 and within three months thereof the application has been filed, which is within limitation.
The petitioner contested the said aspect. It was inter alia submitted that the respondent was well aware of the pending (2 of 6) [CR-10/2018] proceedings, however, deliberately he did not appear and he had the information about passing of the award from the beginning and as the application has not been filed within three months from the date of award, the same was barred by limitation and was liable to be dismissed as such.
After hearing the parties, the court below came to the conclusion that from the record, though it is apparent that during the course of arbitration several notices were sent to the applicant, however, there is no material available on record indicating that copy of the award dated 6/8/2013 was sent to the applicant by the arbitrator or by NCDEX and, therefore, the plea raised by the applicant regarding information of the award on 22/4/2014 and filing of the application within three months thereof, brings the application within limitation and consequently rejected the objection raised in this regard.
Learned counsel for the petitioner submitted that the court below committed error in coming to the conclusion that the application was within limitation. It is submitted that the petitioner during the pendency of present revision petition has obtained information from NCDEX, which has informed that the arbitration award was sent to the respondent by post, however (POD) proof of delivery was not available with the said NCDEX, along with said letter a postal receipt dated 10/8/2013 has been attached indicating that a registered article was sent to the respondent. It is submitted that in terms of the Rules and Regulations of NCDEX, specially Regulation 21.23 once the communication has been sent by registered post, the same would be deemed to have been (3 of 6) [CR-10/2018] delivered and, therefore, the plea sought to be raised by the respondent regarding non-delivery of the award cannot be believed and as the application was filed beyond limitation, the same was liable to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
Admittedly, the plea which is now sought to be raised based on the document procured by the petitioner from NCDEX i.e. the letter dated 20/3/2018 indicating sending of award to the respondent and the postal receipt, were neither raised before the court below nor were the part of the record of arbitrator.
The issue regarding limitation under Section 34 of the Act and the manner of its calculation is no more res integra. The Hon'ble Supreme Court in Anil Kumar Jinabhai Patel (D) through L.Rs vs. Pravin Chandra Jinabhai Patel & Ors. : C.A.No.3313/2018 decided on 27/3/2018 has inter alia laid down as under:
"13. Section 34 of the Act provides for filing of an application for setting aside an arbitral award. Sub-section (3) of Section 34 of the Act lays down the period of limitation for making the application. Section 34(3) of the Arbitration and Conciliation Act, 1996, reads as follows:-
34. Application for setting aside arbitral award.-
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) .........
(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:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from (4 of 6) [CR-10/2018] making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
14. Section 34(3) provides that an application for setting aside an award shall not be entertained by the court if it is made after three months have elapsed from the date on which the applicant had received the arbitral award. The proviso to Section 34 further provides that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed time, it may entertain the application within a further period of thirty days 'but not thereafter'. (vide State of Arunachal Pradesh v. Damini Construction Co. (2007) 10 SCC 742).
The words 'but not thereafter' in the proviso are of mandatory nature, and couched in the negative, and leave no room for doubt. Proviso to Section 34 gives discretion to the court to condone the delay for a sufficient cause, but that discretion cannot be extended beyond the period of thirty days, which is made exclusively clear by use of the words 'but not thereafter'.
15. In Union of India v. Tecco Trichy Engineers and Contractors (2005) 4 SCC 239, a three Judge Bench of this Court, in respect to the issue of limitation for filing application under Section 34 of the Act for setting aside the arbitral award, held that the period of limitation would commence only after a valid delivery of an arbitral award takes place under Section 31(5) of the Act. In para (8), this Court held as under:-
"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 party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on.
As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings."
16. In State of Maharashtra and Ors. v. Ark Builders Pvt. Ltd., (2011) 4 SCC 616, while following the judgment in (5 of 6) [CR-10/2018] Tecco Trichy Engineers case, held that the expression "...party making that application had received the arbitral award..." cannot be read in isolation and it must be understood that Section 31(5) of the Act requires a signed copy of the award to be delivered to each party. By cumulative reading of Section 34(3) and Section 31(5) of the Act, it is clear that the limitation period prescribed under Section 34(3) of the Act would commence only from the date of signed copy of the award delivered to the party making the application for setting it aside.
17. Contention of the appellants is that the other members of Anilkumar's family viz., appellant Nos. 1(a) to 1(d) and respondent No.10, appellant No.1(d) and respondent No.10 did not receive the copy of the award and that they had knowledge of the award only when the execution petition was filed and when they received the notice in the execution petition. Contention of appellant Nos. 1(a) to 1(d) and respondent No.10 is that in terms of Section 31(5) of the Act, copy of the award to be delivered to each party to enable them to challenge the award and since the copy of the award not individually served to them, the period of limitation would start only from the date when they got the copy of the award."
The Hon'ble Supreme Court has laid down that by cumulative reading of Section 34 (3) and Section 31(5) of the Act, it is clear that the limitation period prescribed under Section 34(3) of the Act would commence only from the date of signed copy of the award delivered to the party making the application for setting it aside.
As admittedly, there is no material available on record of the arbitrator as to whether the copy of the award was sent to the respondent and/or when the signed copy of the award was delivered to the respondent, it cannot be said that the filing of application by the respondent under Section 34 of the Act was barred by limitation inasmuch as respondent had specifically claimed that he came to know about the ex-part award for the first time on 21/4/2014 and the application has been filed on 7/7/2014 i.e. within the time prescribed under Section 34(3) of (6 of 6) [CR-10/2018] the Act.
So far as reliance placed by learned counsel for the petitioner on the letter dated 20/3/2018 written by NCDEX and the postal receipt attached with it is concerned, in absence of any proof that the said registered article was delivered to the respondent, which purportedly contained the arbitration award, the respondent cannot be non-suited based on the said postal receipt, which is now sought to be placed on record by the petitioner.
In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed.
(ARUN BHANSALI)J. Baweja-38