THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.08.2009
+ W.P.(C) 2722/1989
SMT. RANJANA KAPOOR ..... Petitioner
- versus -
THE REGISTRAR & ORS. ..... Respondents
Advocates who appeared in this case:-
For the Petitioner : Mr. Sanjay Poddar, Advocate For the Respondent : Mr. V.K. Tandon, Advocate for RCS.
Mr. Harish Malhotra, Sr. Advocate with Mr. Sunil Malhotra, Advocate for LRs of respondent no.4.
Mr. B.L. Anand, Advocate for respondent no.5. CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest? BADAR DURREZ AHMED, J (oral) This writ petition is directed against the order dated 24.07.1989, passed by the Delhi Cooperative Tribunal. The impugned order was passed in an appeal under Section 76(2)(a) of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as the said Act), challenging an ex-parte award dated 14.12.1988. By virtue of the impugned order, the petitioner's appeal had been dismissed on the ground of limitation. The period of limitation prescribed for an appeal under section 76(2)(a) is 60 days from the date of the award. It was the contention of the petitioner, before the Tribunal, that W.P. (C) 2722/1989 Page 1 of 5 the petitioner had come to know about the ex-parte award on 23.05.1989, when she received a letter from the respondent Society asking her to hand over the physical possession of the plot in question, in terms of the impugned award dated 14.12.1988. It was contended that immediately thereafter the petitioner engaged a counsel and filed the appeal before the Tribunal within 60 days from the date of the said letter dated 19.5.1989. It was also contended that the period of limitation be reckoned from the date of knowledge of the impugned order, that is, from the date of receipt of letter dated 19.05.1989. The letter was received on 23.05.1989.
2. The Tribunal, however, rejected the plea of the petitioner in the following manner:-
"I am afraid, I do not find any valid force in the above contention of the appellant. Admittedly, the impugned Award against the Appellant was an ex parte one. It is to be examined if the appellant was validly served during the arbitration proceedings or not. It has categorically been recorded in the impugned Award that notices through registered A.D. post were sent to the appellant by the Arbitrator and that the Appellant "refused" to take delivery of the same. This fact has not been challenged on behalf of the Appellant anywhere in the pleadings before me. It therefore follows that unless the Appellant challenged the order of ex parte proceedings in the arbitration case, it does not lie with her to plead that she came to know of the Award at a latter stage, as there was no occasion for the Arbitrator to inform the Appellant about the impugned Award when she had already been ordered to be proceeded against ex parte. I, therefore, find no ground much less sufficient ground for condonation of delay in the present case.
4. As a result of the above, the application for condonation is disallowed and consequently the present appeal is dismissed as being barred by limitation."
(underlining added) W.P. (C) 2722/1989 Page 2 of 5
3. We have heard the counsel for the parties. Rule 89 of the Delhi Cooperative Societies Rules, 1973, relates to the award or decision. The said provision, so far as is relevant for the present purposes, is reproduced hereinbelow:-
"89. Award or Decision
1. The arbitrator shall make a memorandum of the statements of the parties who attended and of such witnesses as are examined and upon the evidence so recorded and after consideration of any documentary evidence produced by either party shall make an award in accordance with justice, equity and good conscience, he shall record his award signed and date it within a period of three months and shall communicate it to the party concerned. In case the arbitrator is unable to decide the case and made the award within three months he shall seek extension of the period in writing from the Registrar by making an application to him.
xxxx xxxx xxxx xxxx
4. The award shall be communicated to the party by-
(a) pronouncement of the award, or
(b) registered post to any party which may be absent
on such date.
xxxx xxxx xxxx xxxx"
(emphasis supplied)
4. A plain reading of the above provisions clearly indicates that by virtue of Rule 89(1), the Arbitrator is required to communicate the award to the party concerned. Sub-Rule (4) of Rule 89 indicates the manner in which the award is to be communicated. Two modes have been prescribed. The award can be communicated either by pronouncement or by registered post to any W.P. (C) 2722/1989 Page 3 of 5 party which may be absent on such date. It is obvious that the petitioner, having been proceeded ex-parte, was absent on the date of pronouncement, if any. Therefore, the only mode of communication of the award was by way of registered post.
5. Reading the said provisions along with the finding returned by the Tribunal, we are of the view that the Tribunal mis-directed itself in confusing the service of notice with regard to the arbitration proceedings with the question of communication of the award to the parties. Even if a party had been proceeded ex-parte at the arbitration stage, the award still needed to be communicated. That aspect of the matter has not been examined by the Tribunal. The period of limitation would have to be considered from the date of communication of the award.
6. We, therefore, set aside the impugned order dated 24.07.1989. We direct the Tribunal to reconsider the condonation of delay application of the petitioner after examining the date of communication of the award, if any. Once the factual position is established, the Tribunal would have to simply compute the period of limitation from the date of such communication, if any. Thereafter, the Tribunal shall pass an appropriate order on the condonation of delay application in the appeal before it and proceed with the matter in accordance with law.
7. All the parties are represented through counsel. Consequently, no further notice of the proceedings before the Tribunal needs to be given. The W.P. (C) 2722/1989 Page 4 of 5 parties are directed to appear before the Tribunal in the first instance on 06.10.2009.
8. During the pendency of this writ petition, the respondent no.4 passed away and his LRs have been substituted by this Court. The memo of parties which shall now operate before the Tribunal shall be the same as the amended memo of parties filed on 17.11.2006, which is at page 156 of the paper-book.
This writ petition stands disposed of accordingly.
BADAR DURREZ AHMED, J VEENA BIRBAL, J AUGUST 03, 2009 srb W.P. (C) 2722/1989 Page 5 of 5