Delhi District Court
Union Of India vs M/S Ashok Boot Factory on 21 October, 2021
In the Court of Shri Sanjiv Jain, District Judge,
(Commercial Court-03), Patiala House Courts New Delhi
OMP (Comm) No. 13/2020
Union of India
Through Director General, CRPF
CGO Complex,
New Delhi-110003 ....... Petitioner
versus
M/s Ashok Boot Factory,
Khasra No. 13 Compound,
Annil Metal Industries
(Rolling Mill Division)
4th Milestone, bodla Bichpuri Road,
Village Amarpura, Post Kaiwari,
Agra 282010 ....... Respondents
Date of institution : 27.01.2020 Date of reserving judgment : 30.09.2021 Date of decision : 21.10.2021 JUDGME NT
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called the 'Act') challenges the award dated 11.05.2019 passed by the Ld. Arbitrator Sh. Sanjeev Kumar Dubey, whereby, a sum of Rs. 5,87,541.20 being the principal amount and a sum of Rs. 4,11,278.84 being the interest calculated @ 12% simple interest per annum as on OMP Comm No. 13/2020 Page No.1 of 26 02.05.2019, total amounting to Rs. 9,98,820.04 was awarded in favour of the respondent and against the petitioner. The petitioner was also directed to pay simple interest @ 12% till the actual date of payment.
Brief facts:
2. The facts leading to this petition are that the respondent was a SSI Unit. It was registered with NSIC and other Government Departments for supply of different type of footwear governed by the provisions of MSME Act, 2006.
Director General of Supplies and Disposal (DGS & D) being a Nodal Authority for government purchases awarded a work vide no. BANKLE / WL - 4 / RC - 11010000/0712 / 64/NA226/3282 dated 07.02.2012 to the respondent for supply of boots high ankle leather direct vulcanized sole (improved version). The contract was for a period from 07.02.2012 to 31.10.2012. As per the contract, 3000 pairs per month were to be delivered by the respondent with an advance sample for inspection after receipt of the order. The petitioner was to release 90% payment on proof of inspection at the stores and provisional receipt to be issued by the consignee and pay the balance 10% on receipt of goods at stores by the consignee, in full and goods condition. The rate contract was subject to the terms & conditions as contained in DGS & D 1001 and DGS & D 68 (revised).
OMP Comm No. 13/2020 Page No.2 of 263. It is alleged that on 19.04.2012, Director General, CRPF placed an on-line supply order no. RC-18/2012-13-{rpv-Ashok on the respondent in terms of the aforesaid rate contract for supplying 10,400 pairs to its different consignees at various destinations (locations) within India. The delivery period was indicated as 31.05.2012. It was not in terms of the rate contract. The respondent informed the DDO about this discrepancy and requested to amend the same as supply / delivery could commence in 30 days after receipt of supply order and approval of advance sample at 3000 pairs per month. It also informed that it has downloaded the supply order from the website but has not received the ink signed copy. The petitioner then fixed the delivery period upto 30.11.2012 vide letter dated 12.06.2012.
4. It was informed by the respondent that after the receipt of the supply order, there occurred heavy rainfall in the first & second week of August 2012, due to which, one of its working shed collapsed causing damages to several shoes, which were at various stages of manufacture and ready for inspection. Due to this force majeure condition on which, it had no control, it could only offer 5863 pairs (out of 10,400 pairs) for inspection on 19.11.2012. The respondent vide letter dated 29.11.2012 explained the circumstances to the petitioner and requested for extension for three months to enable it to dispatch the material under inspection and offer the balance quantity. It was followed OMP Comm No. 13/2020 Page No.3 of 26 with a reminder dated 07.12.2012.
5. The Inspecting Officer on 28.12.2012 cleared the lot of 5683 pairs of shoes. The same were dispatched to all the designated consignees. The respondent could not offer the balance quantity for inspection earlier because the only Inspecting Officer posted at Agra was due to retire on 31.12.2012. He had stopped receiving any challan prior to one week of his retirement. The respondent communicated this fact to the petitioner vide letter dated 28.02.2013. On 08.01.2013, the petitioner extended the delivery period upto 15.03.2013 (1 st extension) as against three months requested by the respondent that too after 14 days. However, it did not send the ink signed copy of the DP extension letter nor issued the road permit to enable the respondent to dispatch the source. This was done on 08.01.2013 after the reminder from the respondent to Jalandhar consignee. The petitioner vide letter dated 08.03.2013 further extended the delivery period upto 07.04.2013. During this period, the inspecting authorities carried out the inspection and cleared the lot of balance 4537 pairs of shoes and the same were supplied on 27.03.2013 at Jalandhar. The respondent vide letter dated 01.05.2013 informed the petitioner the detailed supply position, which was followed with a reminder dated 05.06.2013 explaining the reasons for delay and requested the petitioner to regularize the delivery period within L/D. The respondent claimed that all the consignees have acknowledged OMP Comm No. 13/2020 Page No.4 of 26 the receipt of delivery and none of them has reported to have suffered any damages, shortages or monitory loss. The petitioner instead vide letter dated 18.07.2013 directed the respondent to deposit Rs. 5,88,805/- as liquidated damages on account of delayed supplies and instructed its authority to recover the said sum from the respondent as liquidated damages. The petitioner then communicated the details of the amount deducted from the various bills of the respondent towards recovery of the liquidated damages as detailed in para 2.18 of the award. The respondent objected to it alleging that there is no clause in the contract which empowers the petitioner to recover liquidated damages (LD) without adjudication thereof. It sent a legal notice dated 28.03.2016 calling upon the petitioner to withdraw the liquidated damages or to refer the dispute to arbitration. The petitioner rejected the respondent's request of withdrawal of liquidated damages vide letter dated 09.06.2016. The respondent then vide letter dated 10.11.2016 requested the petitioner to refer the dispute to arbitration but when it did not receive any response from the petitioner, it filed a petition under Section 11 (6) of the Act and the High Court vide order dated 11.03.2017 appointed the Arbitrator to adjudicate upon the dispute. The respondent filed its statement of claims claiming refund of liquidated damages imposed by the petitioner amounting to Rs. 5,88,805/- along with the interest and Rs. 50,000/- towards litigation expenses. The petitioner contested the claims and filed statement of defense OMP Comm No. 13/2020 Page No.5 of 26 alleging that the delay was totally attributable to the respondent and not to the petitioner. The respondent filed its rejoinder. After admission / denial of documents by the parties, the Arbitrator framed the issues on 02.04.2018, which interalia are as under:
1. Whether the claimant is entitled to the amount claimed in the Statement of Claims?
2. Whether the respondent is entitled to deduct liquidated damages, if yes, how much?
3. Interest, if yes, at what rate and for what period?
6. The parties filed their affidavits of evidence. The Arbitrator after hearing the parties passed the impugned award holding that the respondent was guilty of delay in supply of the goods but he denied the benefit of clause of liquidated damages on the ground that the petitioner was legally bound to prove the losses, which it failed to prove.
7. The petitioner challenged the award on the following grounds:
A. That the impugned award is completely erroneous, cryptic, unreasoned and suffers from infirmities as the Arbitrator did not follow the law laid down by the Supreme Court with regard to the computation of liquidated damages. He misapplied the law laid down in ONGC Vs. Saw Pipes Ltd AIR 2003 SC 2629. It is stated that the Arbitrator failed to consider that the respondent failed to execute the work within the prescribed period of time and it completed the work after getting the extension twice. It is stated that delay in supply of goods to the petitioner has resulted loss to the soldiers, who were deployed in the field. Reference is made of the case DDA Vs. M/S Construction & Design Services RFA (OS) 35/2010, where it was held that loss could be assumed even without proof and burden was on the respondent, who had OMP Comm No. 13/2020 Page No.6 of 26 committed the breach, to show that no loss was caused by delay or that the amount stipulated as damages for breach of contract was in the nature of penalty. Even if, there is no specific evidence of loss suffered by the petitioner, the project being a public utility project, the delay can be taken to have resulted in loss and the petitioner is entitled to reasonable compensation to the extent of loss suffered. If the entire amount stipulated is genuine pre-estimate of loss, the actual loss need not be proved.
B. That the Arbitrator failed to consider and decide the issues as per the judgement passed in the case of MTNL Vs. Haryana Telecom, OMP No. 1113/2012, decided on 14.03.2019 by High Court of Delhi, where the case of ONGC Vs. Saw Pipes (supra) was relied upon, where it was held that in certain cases / contracts, it is not possible to prove the exact damages / loss caused to the aggrieved party. If there is a provision for liquidated damages, the same can be claimed by the aggrieved party from the person, who has committed the breach of the contract. The figure of the liquidated damages, however, is only an upper limit of damages and the Arbitrator can award a lower reasonable sum instead of the stipulated amount of liquidated damages. It is stated that in the present case, nature of contract shows that the loss has been caused to the petitioner. Though, it is not proved in monetary terms but there was a loss of necessity and requirements of Jawans deployed in the field to fight, naxalism, terrorism, anti-national elements and maintenance of law & order of the country, which can never be compromised. In the instant case, the respondent has committed breach of contract by delaying the delivery and thus liable to pay liquidated damages to the petitioner in terms of the contract.
C. Making reference of the case Bharat Coking Coal Ltd Vs. Annapurna Construction (2003) 8 SCC 154, it is stated that the Arbitrator wrongly awarded the interest despite there being no clause in the agreement with respect to the rate of interest. The Arbitrator did not consider the provisions of Section 31 (7) of the Act. It is stated that only the post award interest can be granted, even if there is no contract between the parties and there is a complete bar on awarding pre award interest, when there is agreement between the parties that there should be no such interest. It is stated that the Arbitrator OMP Comm No. 13/2020 Page No.7 of 26 miscalculated the amount of interest.
8. The petitioner also filed an application under Section 34 (3) of the Act for condonation of delay in filing the petition and to take on record the petition afresh as per the Commercial Courts Act 2015.
9. On getting notice of the petition, the respondent filed its reply denying the averments made in the petition and stated that the petitioner has given a false affidavit that the copy of the award was received by it on 26.10.2019 (i.e. after more than five months from the date it was sent by speed post) to misguide the Court. It is stated that the respondent had ascertained from the Arbitrator, the date on which the award was sent to the petitioner, who in reply has confirmed that the copy was dispatched by him to both the parties through speed post on 13.05.2019. Reference is made of Section 34 (3) of the Act and the case of Union of India Vs. Popular Construction Co. MANU/SC/0613/2001 to contend that this petition has been filed after about seven months of the date of award, which is clearly barred by limitation. It is stated that the respondent is a registered SSI Unit and the Supreme Court in the case of Snehadeep Structures Vs. Maharashtra Small Scale Industries Development Corporation, AIR 2010 SC 1497 has held that interest is payable on delayed payments to Small Scale and Ancillary Industrial Undertakings under MSME Act 2006. It is stated that Section 19 of the Act provides that no application for OMP Comm No. 13/2020 Page No.8 of 26 setting aside the award shall be entertained by any Court unless the applicant (not being a supplier) has deposited with it 75% of the amount in terms of the decree, award or as the case may be.
10. I have heard the arguments advanced by Ld. Counsel Sh.
Atul Aggarwal for the petitioner and Sh. B. S. Mathur, Ld. Counsel for the respondent. The parties also filed the written synopsis supported with the judgments.
11. Ld. Counsel for the petitioner submitted that although the impugned award was passed on 11.05.2019 but copy of the award was never received in the office of DG, CRPF. Although, the proceedings were addressed in the name of DG, CRPF but DIG (Prov.) was the person, who was taking care of the entire arbitral proceedings before the Arbitrator. He had signed all the pleadings and in view of the judgment in the case of Union of India Vs. Tecco Trichy Engineers & Contractors, CA No. 1784/2005, copy of the award should have been sent to the DIG (Prov.) and the limitation would start from the date, when the copy was served on him. Ld. Counsel stated that the copy of the award was served at the office of DG, CRPF on 10.06.2019, which was sent through post with a covering letter dated 03.06.2019. Ld. Counsel stated that office of DG, CRPF had sent it to DIG (Prov.) on 10.06.2019, which was received in the office of DIG (Prov.) on 11.06.2019. DIG (Prov.) then sought legal opinion on 13.06.2019, which was given on 19.06.2019.
OMP Comm No. 13/2020 Page No.9 of 26He thereafter, sent the award to the Ministry of Law & Justice for opinion on 02.07.2019 and he received the opinion on 11.09.2019.
12. Ld. Counsel for the respondent per contra argued that as per the confirmation received from the Postal Department, the speed post no. ED323792014IN was delivered to the addressee on 14.05.2019. The Arbitrator has also confirmed that he had dispatched the award to the parties on 13.05.2019 from the Post Office, Delhi High Court vide postal receipts no. ED323792028IN and ED323792014IN. Ld. Counsel stated that this petition was originally filed on 20.12.2019. Since it was not in accordance with law, it was redrafted and refiled on 30.01.2020 with an application for condonation of delay. Ld. Counsel referred the case of Union of India Vs. Popular Construction Co., 2001 (7) SCC 354 to contend that the Court has no power to extend the limitation beyond three months plus thirty days. Ld. Counsel also referred the case of Chief Post Master Vs. Living Media (2012) 3 SCC 563, where it was held that bureaucratic and procedural delays in Government Department cannot be a valid ground for condoning delay. Ld. Counsel referred the case of State of MP Vs. Bhure Lal SLP (C) Diary No. 9217/2020 decided on 15.10.2020, where, the Supreme Court passed scathing orders against the administrative / procedural delays and reprimanded the OMP Comm No. 13/2020 Page No.10 of 26 officials. Ld. Counsel stated that this petition is hopelessly barred by limitation and deserves to be dismissed with cost.
13. I have given my thoughtful consideration to the rival contentions and perused the award, documents and the case laws supra.
14. The statutory period for filing an application / petition for setting-aside the award is provided in sub Section (3) of Section 34 of the Act. It reads as under:
(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 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."
15. Reading of Section 34 (3) of the Act, leaves no manner of doubt that the period of limitation is three months. If the objections are filed beyond three months, then delay in filing can be condoned upto a maximum period of 30 days and not more. Condonation of delay in the extended period of 30 days, is at the discretion of the court, provided the party satisfies the court that there was 'sufficient cause' for the delay. Delay in initial filing, beyond 30 days cannot be condoned, even for one OMP Comm No. 13/2020 Page No.11 of 26 day.
16. The Supreme Court in the case of Union of India Vs. Popular Construction Co. (supra) held that Section 5 of the Limitation Act is not applicable to Section 34 (3) of the Arbitration & Conciliation Act, 1996 in view of the express inclusion within the meaning of Section 29 (2) of the Limitation Act, 1963. It was held that the court cannot condone delay beyond a period of 30 days and that also only if sufficient cause is shown as to how the applicant/petitioner was prevented from making application within the period of three months and not thereafter. It was held that the history and the scheme of 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge the award is absolute and unextendable by the court under Section 5 of the Limitation Act. This objective has found expression in Section 5 of the Act, which prescribes the extent of judicial intervention in no uncertain terms. It provides that in the matters governed by this part, no judicial authority shall intervene except where so provided in this part.
17. It was held in the case of Oil and Natural Gas Corporation Ltd Vs. Joint Ventures of Sai Rama Engineering Enterprises, 2019 SCC Online Del 10456 that a reading of these judgments is a pointer to the fact that while in OMP Comm No. 13/2020 Page No.12 of 26 condonation of delay, the courts have been generally liberal but when it comes to Section 34 (3) of the Act, the limitation period is inelastic and meant to be strictly followed.
18. In the instant case, impugned award was passed on 11.05.2019. The letter of the Arbitrator dated 25.01.2020 addressed to the counsel for the respondent shows that the copy of the award was sent to the parties by speed post vide postal receipts nos. ED323792028IN & ED323792014IN on 13.05.2019 from the Post Office at Delhi High Court at New Delhi. Copy of postal receipts sent with this letter shows that award was sent to the respondent and DG, CRPF, CGO Complex on 13.05.2019 at 9:55 am. The weight of each parcel was 215 grams. The respondent had also sought information from the Post Master, Lodhi Road, Head Post Office, New Delhi vide letter dated 11.02.2020 about the dispatch of the same vide tracking no. ED323792014IN, who in response to the said letter had informed that as per the report received from Senior Post Master, Lodhi Road, New Delhi, the speed post no.
ED323792014IN was delivered to the addressee on 14.05.2019. As regards letter, which has been referred by the petitioner bearing the date 03.06.2019 sent by the respondent. It was regarding requesting the petitioner to abide with the award and pay the amount of Rs. 9,98,820.04 by means of demand draft and bank transfer. The letter does not have any reference of OMP Comm No. 13/2020 Page No.13 of 26 sending the copy of award by the respondent to the petitioner. It was simply a reminder to the petitioner to make the payment against the award.
19. During arguments, Ld. Counsel for the petitioner has placed on record the notings regarding challenging the award having reference of forwarding the copy of award dated 11.05.2019 by the respondent. On a careful perusal, I find that this note was initiated from the office of DIG (Prov.). It was forwarded for concurrence of FA and approval of DG for forwarding the proposal for appeal / challenging the award to the Ministry of Law & Justice through the Ministry of Home Affairs for opinion and for appointment of Government Counsel. FA and DG had accorded their approval on 06.08.2019. Ministry of Home Affairs and Ministry of Law & Justice had given their approval to challenge the award on 29.08.2019 and 12.09.2019 respectively.
20. In the written synopsis filed by the petitioner, it was stated that the copy of the impugned award passed by the Arbitrator on 11.05.2019 was never received in the office of DG, CRPF; that though the proceedings are addressed in the name of DG, CRPF but DIG (Prov.) was the person, who was taking care of the entire arbitral proceedings before the Arbitrator and in view of the judgment in the case of Union of OMP Comm No. 13/2020 Page No.14 of 26 India Vs. Tecco Trichy Engineers & Contractors (supra), it should have been sent to DIG (Prov.) and the period of limitation would start to run from the date when the copy was served on him.
Perusal of the record reveals that the award was served at the office of DG, CRPF. It was sent through post. DG, CRPF and DIG (Prov.) operate from the same office at CGO Complex, Lodhi Road, New Delhi. Admittedly, copy of the award was sent at the office of DG, CRPF but the notings of the office of DIG (Prov.) reveal that within three days of receipt of award in the office of DG, CRPF, the note was initiated by the office of DIG (Prov.) to challenge the award. The postal receipts, letter of the Post Master and the letter of the Arbitrator clearly belie the contentions of the petitioner that the copy of the award was never received in the office of DG, CRPF. Record shows that it was sent through the post receipt / speed post receipt dated 13.05.2019. There is a categorical report to the effect that the parcel was delivered to the addressee on 14.05.2019 i.e. the office of DG, CRPF at CGO Complex, Lodhi Road, New Delhi.
21. In the case of Delhi Urban Shelter Improvement Board v/s Lakhvinder Singh, FAO (OS) (Comm) 149/2017 decided on 10.08.2017, it was held that copy of the award sent by the arbitrator suffices the requirement of Section 31 (5) of the Act.
OMP Comm No. 13/2020 Page No.15 of 2622. The case of UOI Vs. Tecco Trichi (supra) as referred by the counsel for the petitioner is distinguishable on facts and does not benefit the petitioner. In the case (supra), the question was which is the effective date on which the appellant was delivered with and received the arbitral award as that would be the date where from the limitation within the meaning of sub- Section (3) of Section 34 of the Act shall be calculated. It was held:
" Form and contents of arbitral award are provided by Section 31 of the Act. The arbitral award drawn up in the manner prescribed by Section 31 of the Act has to be signed and dated. According to sub-Section (5), "after the arbitral award is made, a signed copy shall be delivered to each party". The term "party" is defined by clause (h) of Section 2 of the Act as meaning 'a party to an arbitration agreement'. The definition is to be read as given unless the context otherwise requires. Under sub-Section (3) of Section 34 the limitation of 3 months commences from the date on which "the party making that application" had received the arbitral award. We have to see what is the meaning to be assigned to the term "party" and "party making the application" for setting aside the award in the context of the State or a department of the Government, more so a large organization like the Railways.
It is well-known that the Ministry of Railways has very large area of operation covering several Divisions, having different Divisional Heads and various departments within the Division, having their own Departmental Heads. The General Manager of Railways is at the very apex of the Division with a responsibility of taking strategic decisions, laying down policies of the Organization, giving administrative instructions and issuing guidelines in the organisation. He is from elite managerial cadre which runs entire Organisation of his Division with different Departments, having different Departmental Heads. The day to day management and operations of different departments rests with different Departmental Heads. Departmental Head is directly connected and concerned with the departmental functioning and is alone expected to know the progress of the matter pending before the arbitral Tribunal concerning OMP Comm No. 13/2020 Page No.16 of 26 his department. He is the person who knows exactly where the shoe pinches, whether the arbitral award is adverse to Department's interest. Departmental Head would naturally be in a position to know whether the Arbitrator has committed a mistake in understanding Departmental's line of submissions and the grounds available to challenge the award. He is aware of the factual aspect of the case and also the factual and legal aspects of the questions involved in the arbitration proceedings. It is also a known fact and Court can take judicial notice of it that there are several arbitration proceedings pending consideration concerning affairs of the Railways before arbitration. The General Manager, with executive work load of entire Division cannot be expected to know all the niceties of the case pending before the arbitral tribunal or for that matter the arbitral award itself and to take a decision as to whether the arbitral award deserves challenge, without proper assistance of the Departmental Head. General Manager, being the head of the Division, at best is only expected to take final decision whether the arbitral award is to be challenged or not on the basis of the advise and the material placed before him by the person concerned with arbitration proceedings. Taking a final decision would be possible only if the subject matter of challenge namely, the arbitral award is known to the Departmental Head, who is directly concerned with the subject matter as well as arbitral proceedings. In the large organizations like Railways, "party" as referred to in Section 2(h) read with Section 34(3) of the Act has to be construed to be a person directly connected with and involved in the proceedings and who is in control of the proceedings before the Arbitrator. 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 OMP Comm No. 13/2020 Page No.17 of 26 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.
In the context of a huge organization like Railways, the copy of the award has to be received by the person who has knowledge of the proceedings and who would be the best person to understand and appreciate the arbitral award and also to take a decision in the matter of moving an application under sub- Section (1) or (5) of Section 33 or under sub- Section (1) of Section 34.
In the present case, the Chief Engineer had signed the agreement on behalf of Union of India entered into with the respondent. In the arbitral proceedings the Chief Engineer represented the Union of India and the notices, during the proceedings of the Arbitration, were served on the Chief Engineer. Even the arbitral award clearly mentions that the Union of India is represented by Deputy Chief Engineer/Gauge Conversion, Chennai. The Chief Engineer is directly concerned with the Arbitration, as the subject matter of Arbitration relates to the department of the Chief Engineer and he has direct knowledge of the arbitral proceedings and the question involved before the arbitrator. The General Manager of the Railways has only referred the matter for arbitration as required under the contract. He cannot be said to be aware of the question involved in the arbitration nor the factual aspect in detail, on the basis of which the arbitral tribunal had decided the issue before it unless they are all brought to his notice by the officer dealing with that arbitration and who is in-charge of those proceedings. Therefore, in our opinion, service of arbitral award on the General Manager by way of receipt in his inwards office cannot be taken to be sufficient notice so as to activate the Department to take appropriate steps in respect of and in regard to the award passed by the arbitrators to constitute starting point of limitation for the purposes of Section 34(3) of the Act. The service of notice on the Chief Engineer on 19.3.2001 would be the starting point of limitation to challenge the award in the Court.OMP Comm No. 13/2020 Page No.18 of 26
We cannot be oblivious of the fact of impersonal approach in the Government departments and organizations like Railways. In the very nature of the working of Government departments a decision is not taken unless the papers have reached the person concerned and then an approval, if required, of the competent authority or official above has been obtained. All this could not have taken place unless the Chief Engineer had received the copy of the award when only the delivery of the award within the meaning of sub- Section (5) of Section 31 shall be deemed to have taken place.
23. In the case of Tecco Trichi supra, the arbitral award was served on the General Manager by way of receipt in his inwards office. The agreement was signed by the Chief Engineer on behalf of Union of India with the respondent. In the arbitral proceedings, Chief Engineer had represented Union of India. All the notices of the proceedings were served on the Chief Engineer. The arbitral award clearly mentioned that Union of India is represented by Dy. Chief Engineer. Chief Engineer was directly concerned with the arbitration and had direct knowledge of the proceedings and the questions involved before the Arbitrator. General Manager had only referred the matter for arbitration as required under the contract. He was not aware of the questions involved in the arbitration nor the factual aspect in detail on the basis of which the Arbitral Tribunal had decided the issue before it.
24. In the present case, the award was received in the office of DG, CRPF at CGO Complex, Lodhi Road, New Delhi. The OMP Comm No. 13/2020 Page No.19 of 26 office of DIG (Prov.) is also situated in the same complex. DIG (Prov.) was the person who was participating in the proceedings and was directly concerned with the arbitration having knowledge of the arbitral proceedings. He was aware of the question involved in the arbitration and the factual aspect. He was the person to understand and appreciate the arbitral award and also to initiate the process for moving an application under Section 34 of the Act. The notings from the office of DIG (Prov.) would show that the copy was received in the office of DIG (Prov.) within three days from the day, the award was received in the office of DG, CRPF i.e. 17.05.2019 (14.05.2019 plus three days). So, the limitation would start from 17.05.2019, the day, the award was received in the office DIG (Prov.) in terms of Section 3 (h) of the Act. This petition under Section 34 of the Act has been filed on 27.01.2020 i.e. after about six months from the date of award. On the same day, it was observed by the Court that the petition does not bear the signatures of the Authorized Representative of the objector / petitioner nor the statement of truth forms part of the petition nor the copy was initialed / signed by the Authorized Representative of the petitioner / counsel. On 31.01.2020, the petitioner filed the fresh set of petition accompanied by the statement of truth, true copies of documents and the application under Section 34 (3) of the Act. So, by virtue of clause 34 (3) of the Act, this petition is barred by limitation.
OMP Comm No. 13/2020 Page No.20 of 2625. It was further contended on behalf of the petitioner that the petitioner is a government body and holding public money in its kitty and is responsible and accountable for each and every penny and the court must safeguard the interest of such body, even though, their officials failed to do so.
26. I find this contention sans merit.
27. In the case of Postmaster General & Ors vs. Living Media India Limited & Anr, (2012) 2 SCC 563, reference was made of the case Pundlik Jalam Patil Vs. Jalgaon Medium Project, (2008) 17 SCC 448, wherein, it was observed:
30. Public interest undoubtedly is a paramount consideration in exercising the Court's discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation / resettlement is equally and integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper OMP Comm No. 13/2020 Page No.21 of 26 explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
28. It was held in the case of Postmaster General (supra)
28...... The Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29...... In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
29. In the case of Simplex Infrastructure Limited v/s Union of India (2019) 2 SCC 455, the application / petition under Section 34 of the Act was filed with an application for condonation of delay of 514 days. In that case, the arbitrator had made an award on 27.10.2014. The respondent had received the copy on 31.10.2014. The respondent had filed the application under Section 34 on 30.01.2015 before the District Judge. On 12.02.2016, the District Judge had dismissed the petition for want of jurisdiction. On 28.03.2016, the respondent filed the petition before the High Court of Calcutta along with OMP Comm No. 13/2020 Page No.22 of 26 an application for condonation of delay of 514 days on the ground that there was a bonafide mistake in filing the petition before the wrong forum. On 27.04.2016, the High Court allowed the application and condoned the delay of 514 days. Matter went to the Supreme Court. The Supreme Court referred Section 34 of the Act and Section 5, 14 of the Limitation Act and the case of Union of India Vs. Popular Construction Co, 7 (2001) 8 SCC 470, Consolidated Engineer Enterprises VS. Principal Secretary, Irrigation Department, Union of India Vs. Trichy Engineers & Contractors, 2009 (5005) 4 SCC 239 and held that Section 14 of the Limitation Act deals with the exclusion of time of proceeding bonafide in a court without jurisdiction subject to satisfaction of certain conditions. The question whether Section 14 of the Limitation Act would be applicable to an application submitted under Section 34 of the Act has been answered in Consolidated Engineering Enterprises (supra) where it was held that from the scheme and language of Section 34 of the Act, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. It is an admitted position that on 27.10.2014, the Arbitrator made an award in favour of the appellant and on 31.10.2014, Union of India received a copy of the award. One OMP Comm No. 13/2020 Page No.23 of 26 of the reasons stated by the respondent for delay in filing an application under Order 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time consuming process for obtaining permission from the circle office at Chennai. It was held that the administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act. It was held that in view of the period of limitation prescribed in Section 34(3), the learned Single Judge of the High Court was not justified in condoning the respondent's delay of 514 days in filing the application.
30. It was held that the use of the words 'but not thereafter' in the proviso makes it clear that the extension cannot be beyond 30 days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application, i.e. beyond the strict timelines prescribed in sub section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. It was held that after the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court.
OMP Comm No. 13/2020 Page No.24 of 26Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days. In the case of National Highway Authority of India (supra), the petitioner was notified by the Registry to file it in the correct category which was under
Section 34 of the Act, the petition having been filed on November 06, 2019 was beyond the period of limitation. The High Court relied on the judgment in the case of Union of India v/s Popular Construction Company (supra) and held that the petition being hit by limitation is not maintainable.
31. Having examined the entire gamut of facts in the present case, I am of the opinion that there is delay in filing the petition, which is beyond a period of three months and thirty days as prescribed under Section 34 (3) and proviso to the said section of the Act. This court has no power to condone the delay beyond the period of 120 days as held by the Apex Court in the case of Union of India Vs. Popular Construction Co. (supra) and Simplex Infrastructure Limited (supra).
32. The present petition being hit by limitation is not main-
tainable and the same is dismissed without going into the merits on the challenge to the impugned award dated 11.05.2019.
OMP Comm No. 13/2020 Page No.25 of 2633. No order as to costs.
34. File be consigned to record room.
Announced in open court today i.e. 21st of October 2021 (Sanjiv Jain) District Judge (Commercial) - 03 Patiala House Courts, New Delhi OMP Comm No. 13/2020 Page No.26 of 26