Himachal Pradesh High Court
Himachal Pradesh State Electricity ... vs Chairman/Director Mr. Satya Pal Sandhu on 20 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 20TH DAY OF SEPTEMBER 2021 BEFORE .
HON'BLE MR. JUSTICE SANDEEP SHARMA ORIGINAL MISC. PETITION (MAIN) NO. 63 OF 2019 Between:-
HIMACHAL PRADESH STATE ELECTRICITY BOARD LIMITED, VIDUT BHAWAN, CHAURA MAIDAN, SHIMLA THROUGH IT EXECUTIVE ENGINEER (PERSONNAL) ... APPLICANT/PETITIONER (BY MR. TARA SINGH CHAUHAN, ADVOCATE) r AND SHYAM INDUS POWER SOLUTION PVT. LTD., HAVING ITS REGISTERED OFFICE AT 129 TRANSPORT CENTRE, ROHTK ROAD, PUNJABI BAGH, NEW DELHI, 110035 THROUGH ITS CHAIRMAN/DIRECTOR MR. SATYA PAL SANDHU .. RESPONDENT (MR NEERAJ GUPTA, SENIOR ADVOCATE WITH MR. AJEET JASWAL, ADVOCATE) Whether approved for reporting:
This petition coming on for orders this day, the court passed the following:
OR D ER By way of instant application filed under S.5 of Limitation Act, prayer has been made on behalf of the applicant for condonation of delay in laying challenge to award dated 16.1.2019 passed by learned Arbitrator, whereby applicant has been saddled with liability to pay Rs. 4,28,98,551 (3,92,52,838 + 36,45,678/-) alongwith interest at the rate of 6% per annum.::: Downloaded on - 31/01/2022 23:05:37 :::CIS 2
It has been averred in the application that since the signed copy of Award was received by the applicant vide communication dated 1.8.2019 (Annexure A-3) and arbitration case was filed on 21.10.2019, there is no .
delay in maintaining the arbitration case but yet as an abundant precaution, present application has been filed for condonation of delay, if any.
2. Precisely, the case of the applicant is that though the Award was passed on 16.1.2019, but at no point of time ,signed copy of Award was made available to it by learned Arbitrator till 1.8.2019 and as such, there was no occasion, if any, for it to file the objections/arbitration case within the stipulated period, as per Section 34(3) of the Arbitration and Conciliation Act (hereinafter, 'Act')
3. Aforesaid prayer made on behalf of the applicant has been opposed by non-applicant/respondent, who in its reply has stated that the averments contained in the application are totally contrary to record. It has been averred that a bare perusal of Award itself suggests that a signed copy of Award was supplied to the Assistant Executive Engineer on 16.1.2019 and as such, applicant cannot be allowed to claim that it was not in the know of passing of Award intended to be laid challenge by way of accompanying arbitration case.
4. Mr. Tara Singh Chauhan, learned counsel for the applicant states that though it stands mentioned in the Award that a copy of award was received by some official of the Board, but signed copy of Award was never received in the office of the applicant. It is only after the request made by the applicant to learned Arbitrator vide communication dated ::: Downloaded on - 31/01/2022 23:05:37 :::CIS 3 23.7.2019, (Annexure A-2), that the learned Arbitrator vide communication dated 1.8.2019 (Annexure A-3) supplied a signed copy of Award, whereafter, immediately the arbitration case laying therein challenge to .
impugned Award came to be filed by the applicant.
5. Mr. Neeraj Gupta, learned senior counsel for the non-
applicant/respondent, while referring to communication dated 1.8.2019, (Annexure A-3) sent by learned Arbitrator to the Chief Engineer (Operations) South, HPSEBL, contended that though vide aforesaid communion learned Arbitrator supplied signed a copy of award but categorically stated in the communication that on 16.1.2019, a signed copy of Award was received by one Rabin Kumar Bansal, Assistant Executive Engineer, HPSEBL, and as such, it cannot be said that the applicant Board was not aware of passing of impugned Award intended to be laid challenge by way of accompanying arbitration case.
6. Mr. Gupta, learned senior counsel, while referring to Annexure A-1, communication dated 5.2.2019, sent by respondent to the Director, (OP) HPSEBL, contended that that vide aforesaid communication, applicant was made aware of passing of impugned Award but despite that it chose not to procure a signed copy of Award, if not supplied to it, till sending of communication dated 23.7.2019, whereby the applicant made request to learned Arbitrator to send a signed copy of award.
7. Having heard learned counsel for the parties and perused material available on record, this court finds that learned Arbitrator passed Award dated 16.1.2019, and a signed copy of the same was made ::: Downloaded on - 31/01/2022 23:05:37 :::CIS 4 available to learned counsel for the claimant and to one Mr. Rabin Kumar Bansal, Assistant employment exchange, and as such, it cannot be said that a signed copy of Award was made available, for the first time by .
learned Arbitrator, vide communication dated 1.8.2019 (Annexure A-3).
8. Though the material available on record clearly reveals that a signed copy of award was received by aforesaid Rabin Kumar Bansal, Assistant Executive Engineer on behalf of applicant Board but, even if it is presumed that the impugned Award was not supplied to applicant on 16.1.2019, it is not understood that what prevented applicant Board to procure a signed copy of Award after receipt of communication dated 5.2.2019 sent by non-applicant/claimant, wherein factum with regard to passing of impugned Award was disclosed to the applicant board.
9. Mr. Tara Singh Chauhan, Advocate, while referring to S.31(5) of the Act, contends that no arbitration case/objection could be filed till the time, a signed copy of Award is/was received.
10. There cannot be any dispute with the aforesaid provision of law, but since the applicant, despite having known factum with regard to passing of impugned Award, did not take any steps to procure a signed copy of Award, it cannot be permitted, at this stage, to claim that a signed copy of Award was not received by it.
11. As has been taken note herein above, a signed copy of award was made available to applicant on 16.1.2019 itself, as is evident from the perusal of Annexure A-3 i.e. communication dated 1.8.2019 sent by learned Arbitrator to the Chief Engineer, HPSEBL in response to communication dated 23.7.2019. It stands duly mentioned on the last page ::: Downloaded on - 31/01/2022 23:05:37 :::CIS 5 of award, that copies thereof was supplied to the claimant and as well as to the Assistant Executive Engineer.
12. Section 34(3) of the Act clearly provides that an application .
for setting aside an arbitral award may not be made after three months from the date of receipt of copy of arbitral award and in case, party was prevented by sufficient cause from making application within the said period of three months, court can entertain the application further within period of 30 days but not thereafter.
13. Close scrutiny of S.34(3) of the Act, clearly reveals that maximum of 120 days can be availed by a party intending to lay challenge to the arbitral Award but beyond that period, no objections can be entertained.
14. Though in the instant case, attempt has been made by Mr. Tara Singh Chauhan, learned counsel for the applicant to carve out a case that within a period of three months from the date of receipt of signed copy of award vide communication dated 1.8.2019, applicant has filed the objections and as such, those are maintainable, but as has been discussed herein above in detail, a signed copy of award was made available to the applicant Board on 16.1.2019 itself and as such, objections, if any could have been filed by the applicant within a maximum period of 120 days from that date i.e. 16.1.2019 but in the case at hand, objections have been filed on 21.10.2019, i.e. after an inordinate delay of 08 months 05 days.
15. Even if for sake of arguments, it is presumed that a signed copy of Award was not supplied to the applicant Board on 16.1.2019, even ::: Downloaded on - 31/01/2022 23:05:37 :::CIS 6 then there is no explanation on record that what prevented the applicant to apply for signed copy thereof, especially when factum with regard to passing of impugned Award was brought to its notice by the non-
.
applicant/claimant by way of communication dated 5.2.2019.
16. Consequently, in view of above this court sees no reason to condone the delay, as has been prayed for by applicant and the application is dismissed being devoid of merit.
(Sandeep Sharma), Judge September 20, 2021 (vikrant) ::: Downloaded on - 31/01/2022 23:05:37 :::CIS