Delhi District Court
M/S Ishwin Packaging vs M/S Samman Lal Sher Singh Jain on 31 March, 2010
IN THE COURT OF SH. RAKESH KUMAR : ADJ (CENTRAL20) : DELHI
Suit No. 80/09
Unique Case ID No.02401C0216342009
M/s Ishwin Packaging
Through its Proprietor
Sh. Charanjit Singh Gujral,
156B, Ist Floor, Derawal Nagar,
Delhi. .....Applicant.
Versus
1. M/s Samman Lal Sher Singh Jain
(Partnership Firm),
Through its Partner,
2343, Chhatta Shaji Bazar,
Chawri Bazar, Delhi.
2. M/s Samman Lal Sher Singh Papers Pvt. Ltd.
Through its Director,
2343, Chhatta Shaji Bazar,
Chawri Bazar, Delhi. .....Respondents.
Date of institution of petition : 23.05.2009
Date on which order was reserved : 31.03.2010
Date of decision : 31.03.2010
J U D G M E N T
1. The instant petition U/s 34 of the Arbitration and Conciliation Act, 1996 has been filed by the petitioner, interalia making a prayer for setting aside the award dated 20.01.2005 passed by Sh. Krishan Lal Aneja, Advocate Arbitrator, whereby the defendant i.e. petitioner herein was held liable to make M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 1 of pages 12 the payment of sum of Rs.14,507/ to the claimant/respondent herein alongwith interest @ 18% per annum from 12.09.2004 till the payment of the said amount. Cost and expenses of the claim were also be born by the defendant.
2. It has been stated in the petition that the petitioner/applicant had received summons in Execution No.78/07 (arising out of the aforesaid award dated 20.01.2005) for appearance on 02.11.2007 from the Court of Ms. Shunali Gupta, Ld. Civil Judge, Delhi. Alongwith the summons, he also received an application for execution which was seeking to execute an award dated 20.01.2005 in suit no.20032004/40 for Rs.14,507/ alongwith costs and interest @ 18% per annuum on the award amount w.e.f. 20.01.2005 till its realization. The petitioner is assailing the impugned award only on the following grounds:
(i).This award was sought to be executed by respondent no.2, which allegedly claimed to have taken over the assets and liabilities of respondent no.1 (who was alleged to have obtained this award) and thereby acquired the alleged right to execute this award against the applicant. By way of abundant caution, the applicant is filing the present application against both the respondents no.1 & 2 although the applicant disputes and denies both the factum and right of respondent no.2 to claim to have taken over the assets and liabilities of M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 2 of pages 12 respondent no.1 (who was alleged to have obtained this award) and thereby acquisition of the alleged right to execute this award against the applicant.
(ii).The copy of award was not sent with the summons and the application obtained the copy of the award only on 02.11.2007 when the aforesaid Civil Court directed the respondents to provide a copy of the same to the applicant.
(iii).The applicant/petitioner was neither served with the summons for appearance for 02.11.2007 in the execution petition nor in the proceedings conducted by the Arbitrator, wherein the impugned award dated 20.01.2005 was passed and he had otherwise also no knowledge of any of the proceedings of the award or of the execution.
(iv).From the perusal of the aforesaid execution petition and copy of award in suit no.20032004/40, it becomes clear that the respondent has obtained the impugned award malafidely behind the applicant/petitioner by deliberately giving wrong address of the applicant despite knowing his correct address at which address, the applicant was served for appearance for 02.11.2007.
(v).Further on perusal of award in suit no.20032004/40, it M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 3 of pages 12 appears that report of alleged service of the applicant is incorrect as the respondents must have deliberately not given the correct address of the applicant being address 156B, Ist Floor, Derawal Nagar, Delhi. From the above it appears that the respondent, despite having knowledge of the correct address of the applicant has deliberately chosen to furnish incorrect addresses of the applicant during the entire award proceedings and execution proceedings thereafter.
It is claimed by the petitioner that the present petition has been filed within the period of limitation as the petitioner has received the copy of the Arbitral award only on 02.11.2007. It is claimed that the interest of justice demands that the award dated 20.01.2009 may be set aside. The petition is supported by the affidavit of Sh. Charanjit Singh Gujral, the Proprietor of applicant concern.
3. The notice of the petition was issued to respondents and the record of the Arbitration Proceedings was also produced by Sh. Raj Kishore, the employee of Paper Merchant Association.
4. The respondents contested the petition by filing their joint reply wherein they took certain preliminary objections like that the respondent no.1 is unnecessary party in this case as the firm M/s Samman Lal Sher Singh Jain has been taken over by M/s Samman Lal Sher Singh Papers Pvt. Ltd. vide agreement dated 01.06.2005. The application under reply is barred under M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 4 of pages 12 Section 34 (2) of the Arbitration & Conciliation Act as the same is patently barred by the period of limitation and as such the same is liable to be dismissed summarily. The alleged ground for setting aside the award are not maintainable as the same are not according to Section 34 (2) of the Arbitration & Conciliation Act.
On merits, it is stated that in view of the fact that the firm M/s Samman Lal Sher Singh Jain was taken over by respondent no.2, the respondent no.1 has lost its entity and is unnecessary party. There is no reason to deny the stand of respondent no.2 that it had taken over the assets and liabilities of respondent no.1. It is denied that the complete copy of the award was not sent to the applicant, rather, another copy of award was also given to the counsel for applicant in the concerned execution court. It is also denied that the applicant had not been served in the Award proceedings in Arbitration No. 20032004/40 and had no knowledge of the proceedings of the Award or that the respondents have obtained the award behind the applicant's back by giving wrong address of the applicant. The applicant had deliberately changed his address later on to escape his liability and the D.H. searched the same after great efforts. The allegations of the applicant that the respondents have furnished his incorrect address during the entire award proceedings and execution proceedings are after thought, wrong and vehemently denied. As the petition does not disclose any valid reason to set aside the award, so the instant petition is liable for dismissal.
5. It is pertinent to mention here that after filing of reply by the M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 5 of pages 12 respondents the matter was fixed for the arguments on the petition, however, on making submissions by Ld. counsel for the respondent that the petitioner has given the fictitious address in the present petition, so vide order dated 14.12.2009, the petitioner Sh. Charanjit Singh Gujral was directed to appear in person alongwith the proof of his present address, however, the petitioner did not appear in his person. Even, he did not contact his counsel and on 03.03.2010, Ld. counsel appeared for the petitioner informed the court that the petitioner has not been contacting him but before withdrawing his vakalatnama he wants to right a letter to the petitioner. His prayer was allowed and the matter was adjourned for today. However, today neither the petitioner appeared in his person nor any counsel appeared on behalf of the petitioner. As in this case the reply of the petition has come on record and the original record of the Arbitration proceedings is also placed before me, so instead of dismissing the present petition on account of absence/non prosecution, I would prefer to proceed further in the matter to decide the petition on merits. Accordingly, I have carefully perused the entire material placed on record including the record of Arbitration proceedings. I have also heard the submissions of Ld. counsel for respondents.
6. After giving due thoughts to the submissions made before me, I have come to the conclusion that the instant objection petition as filed by the petitioner/objector under Section 34 of Arbitration & Conciliation Act is barred by limitation, in as much as Section 34 (3) prescribes a period of three months for preferring the objections from the date of the receipt of the award. M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 6 of pages 12 Furthermore, it is provided that the Court if satisfied that the applicant was prevented by sufficient cause for making the application within the said period of three months, may entertain the said application within a further period of 30 days, but not thereafter. In the present case the Arbitral award was passed on 20.01.2005 but despite of service and full knowledge about the arbitral proceedings and passing of the award by the Arbitrator, the petitioner/applicant did not prefer the present petition within the prescribed period of limitation, rather he has preferred the instant petition only on 03.01.2008 before the court of Ld. Senior Civil Judge, that is much beyond the prescribed period of limitation. Thus the petition is not maintainable being barred by limitation. It has been amply clarified by the Hon'ble Apex Court in the judgment reported as 2001 (3) AIR 345 SC titled as Union of India Vs. Popular Construction that, "the provisions of Section 5 of the limitation Act are not attracted to these proceedings and the language of Section 34 of the Arbitration & Conciliation Act is specific in respect of the wording but not thereafter. Any delay beyond the time envisaged by the statue would debar the proceedings. The time limit prescribed under Section 34 to challenge the award is absolute and unextendable by a court and objections filed beyond the period envisaged in Section 34 (3) would not be in accordance with law."
The present petition has been filed after nearly around three years from the passing of the award, thus this court has no jurisdiction to condone the delay. Even otherwise the objections are devoid of any merits in view of the fact that the firm M/s Samman Lal Sher Singh Jain has been taken over by M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 7 of pages 12 M/s Samman Lal Sher Singh Papers Pvt. Ltd. vide agreement dated 01.06.2005 and there is no reason to deny the stand of respondent no.2 that it had taken over the assets and liabilities of respondent no.1. Further the petitioner has been failed to point out any valid ground for setting aside the award. The alleged grounds for setting aside the award are not maintainable as the same are not according to Section 34 (2) of the Arbitration & Conciliation Act. In the entire set of objections, there is no challenge to the correctness of the award or the findings, as arrived at by the Ld. Arbitrator. The Legal Notice was duly issued and served upon the petitioner and despite of service, the petitioner did not appear before the Arbitrator and intentionally avoided his appearance and accordingly Ld. Arbitrator had rightly and in accordance with law proceeded him exparte.
In Ms. Madan & Co. Vs. Wazir Jaiveer Chand AIR 1989 SC 630, it was held that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it.
In Union Bank of India Vs. Bhatia Tanning Industries 27 (1985) DLT 97, it was held that the Arbitrator sending registered A.D. notice to the respondent for appearance and to defend, the notice sent on the last known address was returned back as addressee was not available. It was held that it was sufficient service.
In Prime Industries & Ors. Vs. Faeeq Ahmed 67 (1997) DLT M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 8 of pages 12 1212, it was held that the notice sent by registered A.D post as well as UPC, the appellants avoided service of notice by registered post, the notice sent under the UPC, presumption could be drawn under Section 114 of Evidence Act. The notice sent at correct address of the firm. It was held by the Hon'ble High Court of Delhi that notice of demand properly served and it was sufficient compliance of provisions of law.
In 2000 III AD (Delhi) 645 it was held that once the notice and the postal receipt of dispatch of notice is proved then the mere denial to the contrary is not enough and notice shall be presumed to be delivered.
From the perusal of the entire record of the proceedings held before Ld. Arbitrator, it is revealed that despite of giving sufficient opportunities the petitioner did not prefer to appear and defend the case before the Arbitrator. Further, it is not the case where non application of the mind or entirely erroneously or perverse or whimsical approach to the material or evidence produced by the parties is manifest on the face of the award. It is also not the case that Ld. Arbitrator has not applied his minds to the pleadings or the evidence adduced before him and to the terms of the contract. Thus, I do not think, it is within my scope to reapprised the matter as if this were an appeal.
7. In the light of the above, the objections are without any merit and are liable to be dismissed. There is no reason or cause to remit the award or set it aside. The Award is made Rule of the Court and judgment is pronounced in accordance with it.
M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 9 of pages 12
8. Decree Sheet be drawn up accordingly.
9. Objections dismissed.
10. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR)
today on 31.03.2010) ADDL. DISTRICT JUDGE20 (C)
M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 10 of pages 12
Suit No. 80/09
M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others 31.03.2010 Present: None.
Put up at 11.30 a.m.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/31.03.2010
31.03.2010 (At 11.30 a.m)
Present: None for petitioner.
Ld. counsel for respondent.
Put up at 2.00 p.m.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/31.03.2010
31.03.2010 (at 2.00 p.m)
Present: As before.
In this case after filing of reply by the respondents the matter was fixed for the arguments on the petition, however, on making submissions by Ld. counsel for the respondent that the petitioner has given the fictitious address in the present petition, so vide order dated 14.12.2009, the petitioner Sh. Charanjit Singh Gujral was directed to appear in person alongwith the proof of his present address, however, the petitioner did not appear in his person. Even, he did not contact his counsel and on 03.03.2010, Ld. counsel appeared for the petitioner informed the court that the petitioner has not been contacting him but before withdrawing his vakalatnama he wants to right a letter to the petitioner. His prayer was allowed and the matter was adjourned for today. However, today neither the petitioner appeared in his person nor M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 11 of pages 12 any counsel appeared on behalf of the petitioner. As in this case the reply of the petition has come on record and the original record of the Arbitration proceedings is also placed before me, so instead of dismissing the present petition on account of absence/non prosecution, I would prefer to proceed further in the matter to decide the petition on merits. Accordingly, I have carefully heard the submissions of Ld. counsel for respondents.
Put up at 4.00 p.m for orders.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/31.03.2010
31.03.2010 (At 4.00 p.m)
Present: As before.
Vide a separate judgment, petition of the petitioner stands disposed off.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ20 (C)/DELHI/31.03.2010 M/s Ishwin Packaging Vs. M/s Samman Lal Sher Singh Jain & Others (Suit no.80/09) Page No. 12 of pages 12