Delhi District Court
Sri Raman Educational Society vs Educomp Solutions Ltd on 16 December, 2019
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IN THE COURT OF MS VANDANA JAIN
ADDITIONAL DISTRICT JUDGE07
SOUTHEAST DISTRICT, SAKET COURTS
NEW DELHI
Arbt No. 41/18
In the matter of:
Sri Raman Educational Society
Through the Chairman Sh. Sreedhar Goud
At H. No. 440, 443, 444, Atamakur,
Mahaboobnagar Distt, Telangana509131
.....Petitioner
VERSUS
1. Educomp Solutions Ltd.
Through its duly constituted attorney
Sh. Rishabh Sharma, 1211, Padma Tower1,
5, Rajendra Place, New Delhi110008.
2. Ms. Rekha Gupta,
Ld Sole Arbitrator
N18, Second Floor, Jangpura Extension,
New Delhi110014
....Respondents
Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 1 of 19
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Date of Institution : 12.12.2018
Date of Reserving : 11.12.2019
Date of Judgment : 16.12.2019
ORDER
1. Vide this order, I shall dispose off objections filed under Section 34 of Arbitration & Conciliation Act.
2. Ld counsel for petitioner has argued that an exparte award dated 04.05.2017 was passed against M.V. Raman High School who is not an independent body and can neither sue nor be sued in its individual capacity.
3. Ld counsel for petitioner has argued that by invoking clause 9.1 of the agreement between the parties, arbitrator was appointed but the arbitrator Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 2 of 19 3 could have been appointed only by mutual consent of the parties in terms of clause 9.1 but no consent was taken from petitioner herein before appointing the arbitrator. Ld counsel for petitioner has brought attention of this court towards letter dated 04.06.2016 written by respondent herein to the arbitrator seeking her consent for her appointment as sole arbitrator and this very letter was addressed to petitioner herein also purportedly in compliance of clause 9.1. It is further argued that no letter seeking consent of the arbitrator could have been written to the arbitrator without seeking the consent of the petitioner herein and, therefore, the reference notice is itself bad.
4. It is further argued that though address of the Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 3 of 19 4 petitioner given before Arbitrator is correct, however, arbitral proceedings would show that same only record that the notices were sent but there is no finding of the arbitrator to the effect that petitioner herein was served.
5. It is further stated that arbitral record does not find any tracking report on record regarding service of petitioner of the arbitral proceedings.
6. It is further argued that only first notice was issued by arbitrator on 03.10.2016. The postal receipt bearing the address of the petitioner school contains wrong PIN Number whereas address mentioned on the notice contain correct PIN Number. It is argued that the PIN Number was wrongly mentioned on the postal receipt.
7. It is further argued that nowhere it has been Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 4 of 19 5 recorded as to who was served on behalf of the respondent and, therefore, service is bad.
8. It is further argued that though arbitrator has put his signature on the arbitration proceedings as Rekha Gupta whereas impugned award and the reference notice only contains initial of "R" which shows that proceedings have been conducted in the office of the respondent and not by the Arbitrator.
9. He has further argued that declaration required and Section 12 of the Arbitration & Conciliation Act, 1996 is not on record and there has been an attempt to make this compliance only by putting the contents of Section 12 & 13 in the notice of arbitration purportedly issued to the petitioner herein and, therefore, statutory Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 5 of 19 6 compliance of Section 12 & 13 of the Arbitration and Conciliation Act, 1996 has not been done by arbitrator and proceedings are bad on this ground also.
10. He has further argued that witness of the respondent had relied upon ledger account of Edu Smart Services Pvt Ltd whereas respondent herein is Educomp Solutions Ltd and agreement was also between Educomp Solutions Ltd Vs. M V Raman High School. He has also brought attention of this court towards stamp paper purchased on which award has been passed. The stamp paper is shown to have been purchased by Edu Smart Services Pvt Ltd and not by Educomp Solutions Ltd. It is argued that said award cannot be implemented.
11. With respect to limitation period for filing objection Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 6 of 19 7 petition, Ld counsel for petitioner has argued that petitioner came to know about the impugned award on the receiving of notice of execution petition on 03.10.2017 and thereafter certified copy of the proceedings were applied before Arbitrator on 07.11.2017 which were received by petitioner on 24.11.2017 and thereafter objection petition was filed within stipulated time period of three months i.e. on 06.02.2018 and present petition is within period of limitation. It is further argued that impugned award passed by Ld Arbitrator is illegal and, therefore, is liable to be set aside and petition be allowed.
12. On the other hand, Ld counsel for respondent has argued that agreement was executed between the Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 7 of 19 8 respondent herein and M.V. Raman High School and all the correspondences took place with school and now it cannot be said that school could not be sued and no proceeding could have initiated against school. It is further argued that petitioner had itself submitted that address of the petitioner given by the respondent before arbitrator was correct and since postal receipts of every proceeding is there on record, the same is presumed to have been delivered upon the petitioner herein. It is further argued that impugned award was delivered on 06.05.2017 upon the petitioner herein and postal receipts of the delivery of the same to the petitioner is on record and same has been delivered to the correct address of the petitioner and, therefore, petitioner was Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 8 of 19 9 served with the award somewhere in May, 2017 itself whereas objection petition has been filed in February, 2018 which is hopelessly barred by limitation. It is argued that objection petition is liable to be dismissed.
13. I have heard the arguments and have perused the record carefully.
14. Admittedly the agreement was entered into between M/s Educomp Solutions Ltd and M.V. Raman High School sponsored by Sri Raman Educational Society represented by Mr Sreedhar Goud on behalf of management. Perusal of this agreement shows that there is only one address given in the agreement and that is of the school. Though, agreement has been signed by Chairman Mr Sreedhar Gaud of the Sri Raman Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 9 of 19 10 Educational Society but there is no separate address of Sri Raman Educational Society on record which is sufficient to reject the contention of the Ld counsel for petitioner who has argued that school could not have been sued and it is society who should have been sued. Mere playing with the names cannot give undue advantage to the petitioner herein as the petitioner was served at this very address. Perusal of record shows that impugned award was passed on 04.05.2017 and there is a postal receipt showing that the award was sent to M.V. Raman High School on 06.05.2017. Since the address is stated to be correct as given on the postal receipt, therefore, there is a presumption of service of the same upon the petitioner.
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15. Reliance is placed upon Har Charan Singh Vs. Shiv Rani, AIR 1981 SC 1284 where it was held that: "7. Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service of proper service if the documents sought to be served is sent by properly addressing, prepaying and posting Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 11 of 19 12 by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more.
16. The proceeding sheet of 04.05.2017 shows that signed copy of award was directed to be sent in two days.
17. So it is observed that signed copy of award was sent on 06.05.2017. Further, petitioner has stated that it Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 12 of 19 13 came to know about impugned award on receiving notice of the execution petition. The copy of the said notice has been placed on record. Perusal of this notice would show that it is addressed to M.V. Raman High School only. It bears the same address as was mentioned in arbitral proceedings and on the postal receipts by which the award was sent. Ld counsel for petitioner was unable to explain as to why the school on receiving notice of the execution petition informed the society and present objections were filed. This step could have been taken by the petitioner even earlier on receiving notice of the arbitration proceedings and all the objections could have been decided on merits by arbitrator regarding violation of clause 9.1, not filing of Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 13 of 19 14 declaration etc which holds some merits. The petitioner unfortunately choose to remain silent and at this stage plea of petitioner that school could not have been sued, cannot be taken into account. The proceedings shows that award was sent to the petitioner herein on 06.05.2017 and, therefore, would have been delivered in May 2017 itself to the petitioner. The objection petition having been filed in February, 2018 is clearly barred by limitation in view of provision of Section 34 (3) of Arbitration and Conciliation Act, 1996. This court has no power to condone the delay after expiry of three months + 30 days from the date of receipt of award. The dates for applying certified copies or date on which notice of execution petition was received are irrelevant Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 14 of 19 15 in view of the aforesaid discussion. Since petition is beyond period of limitation, it is not necessary to dwell upon further arguments addressed by Ld counsel for petitioner.
18. Ld counsel for petitioner has relied upon certain judgments i.e. (i) Benarsi Krishna Committee & Ors Vs. Karamyogi Shelters Pvt Ltd (2012) 9 SCC 496 (ii) Yogesh Jain & Ors Vs. Rakesh Jain & Ors 2014 SCC OnLine Del 3388 (iii) State of Maharashtra & Ors Vs. ARK Builders Pvt Ltd (2011) 4 SCC 616 (iv) Gaurang Vs. Vinay A. Choksi Arbt. Petition No. 846/2010 DOD 20.08.2014 (v) ESquare Leisure Pvt Ltd Vs. K.K. Dani Consultants and Engineers [2013(3) Mh.L.J.
19. As far as Benarsi Krishna Committee & Ors Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 15 of 19 16 (Supra) is concerned, it says that the award has to be delivered upon the party and not upon the agent or the Advocate of the party. In this regard, it is relevant to mention here that school who entered into an agreement with the respondent cannot be termed as agent. The award was sent to the very address mentioned in the agreement executed between the parties and this judgment is not applicable.
20. As far as Yogesh Jain & Ors (Supra) is concerned, it is with respect to statutory period of limitation from the date when signed copy of award is delivered. This judgment is not applicable to the facts of the case in hand as that signed copy of award was delivered in May, 2017 itself. No question of applying for certified copy on Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 16 of 19 17 07.11.2017 and getting it on 24.11.2017 arises as limitation period started running much prior thereto as impugned award was sent by the arbitrator to the petitioner herein on 06.05.2017 and presence of postal receipts bearing the correct address raised a presumption of service in favour of respondent. Therefore, this judgment is not applicable in case in hand.
21. As far as State of Maharashtra & Ors (Supra) is concerned, this judgment is also not applicable as it has already been held in the aforesaid case that award was not received by objector from any source. The facts are entirely different.
22. As far as Gaurang (Supra) & ESquare Leisure Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 17 of 19 18 Pvt Ltd (Supra) are concerned, there is no dispute to the ratio of these judgment but these judgments are not applicable to the facts of the case in hand.
23. Reliance is placed upon Padma Sundara Rao & Ors Vs. State of Tamil Nadu & Ors (2002) 3 SCC 533 wherein it was held that: "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, a it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
24. In view of aforesaid discussions, objection petition is dismissed being barred by limitation. Sri Raman Educational Society Vs. Educomp Solutions Ltd & Anr. Page no. 18 of 19 19
25. File be consigned to Record Room after due Digitally signed compliance. VANDANA JAIN by VANDANA JAIN Date: 2019.12.17 15:54:46 +0530 Announced in the open ( VANDANA JAIN) court on 16.12.2019 Additional District Judge07 SouthEast, Saket Courts, New Delhi.
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