Gujarat High Court
Gujarat Maritime Board vs Param Industries Ltd on 31 July, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/FA/2723/2009 ORDER DATED: 31/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2723 of 2009
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2009
In
R/FIRST APPEAL NO. 2723 of 2009
With
R/FIRST APPEAL NO. 2724 of 2009
With
CIVIL APPLICATION NO. 2 of 2009
In
R/FIRST APPEAL NO. 2724 of 2009
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GUJARAT MARITIME BOARD
Versus
PARAM INDUSTRIES LTD
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Appearance:
MR PR NANAVATI(508) for the Appellant(s) No. 1
MR NIRAV C THAKKAR(2206) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 31/07/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) Both the appeals are directed against the judgment and order dated 12.02.2009 passed by the learned Additional District Judge, Jamnagar and hence, the appeals are heard together and are being decided by this common order.
2. Heard the learned counsel appearing for the appellant and perused the record.
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3. Both these appeals under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act, 1996") have been filed challenging the order of rejection of the applications under Section 34 of the Arbitration and Conciliation Act, 1996 dated 12.02.2009 passed by the Additional District Judge, Jamnagar in Civil Misc. Application No. 417 of 2006 and Civil Misc. Application No. 418 of 2006 registered under Section 34 of the Act of 1996.
4. The applications have been rejected by reading of the provisions of Section 34 (3) of the Act, 1996, holding it being beyond limitation of 120 days, prescribed under the said provisions. There is no dispute about the fact that the arbitral award was declared on 22.07.2006 and the same was received by the officer of the appellant organization, namely, Gujarat Maritime Board, who was holding the post of Assistant Traffic Manager on 22.07.2006 itself. It seems that the award was placed before the Traffic Manager on 24.08.2006, where-after he had decided to challenge the award. The application under Section 34 of the Act, 1996 was filed on 18.12.2006. 4.1. It is sought to be submitted by learned advocate for the appellant that the date of receipt of the award by the Traffic Manager on 24.08.2006, would be the date when the limitation prescribed in sub-section (3) of Section 34 of the Act, 1996 would Page 2 of 6 Downloaded on : Tue Aug 06 21:00:42 IST 2024 NEUTRAL CITATION C/FA/2723/2009 ORDER DATED: 31/07/2024 undefined commence. The submission is that the word "party" used in sub- section (3) is to be interpreted in a manner that the concerned officer of the appellant - organization, namely Gujarat Maritime Board, who was equipped to take a decision to challenge the award would be the 'party', who had received the arbitral award. The Assistant Traffic Manager, who had received the copy of the award on 22.07.2006 was not in a position and did not have authorization to decide as to whether the award is to be challenged or complied with. The result is that the date of receipt of the copy of the award by the Traffic Manager, the decision making authority of the appellant - organization, would be the relevant date to compute the limitation of three months as per sub-section (3) and further 30 days as per the proviso of sub-section (3) to Section 34 of the Act, 1996. It is submitted that with this perspective, if the limitation is computed from the date of the receipt of the copy of the award by the Traffic Manager, i.e. 24.08.2006, the application under Section 34 of the Act, 1996 would be within limitation as prescribed in sub-section (3) of Section 34 of the Act, 1996.
5. Reliance is placed on two decisions of the Hon'ble Apex Court in the case of Union of India v. TECCO Trichy Engineers & Contractors reported in (2005) 4 SCC 239 and in the case of Page 3 of 6 Downloaded on : Tue Aug 06 21:00:42 IST 2024 NEUTRAL CITATION C/FA/2723/2009 ORDER DATED: 31/07/2024 undefined Benarsi Krishna Committee & Ors., v. Karmyogi Shelters Pvt. Ltd., reported in (2012) 9 SCC 496 to substantiate the said point. 5.1. This submission of the learned advocate for the appellant suffers from inherent fallacy for the simple reason that the words "party making application", "who had received the arbitral award", cannot be stretched or interpreted to mean and include the officer of the appellant organization, namely Gujarat Maritime Board, who is the decision making authority. When the legislature provided the date as a date of receipt of the award by the party making application under Section 34 of the Act, 1996 in sub-section (3), it would have meant the party who is contesting the award or concerned with the award.
6. In the instant case, admittedly, the Assistant Traffic Manager, who was officer of the appellant organization was contesting the proceedings of the award and was well aware of the arbitral award when he received the same on 22.07.2006. The arbitral award, as per own contentions of the appellant, was placed before the Traffic Manager, the decision making authority, after a period of one month, on 24.08.2006, for which, no explanation is forthcoming. 6.1. Be that as it may, the party namely, the Gujarat Maritime Page 4 of 6 Downloaded on : Tue Aug 06 21:00:42 IST 2024 NEUTRAL CITATION C/FA/2723/2009 ORDER DATED: 31/07/2024 undefined Board, which was represented by its officer before the learned Arbitrator and has received the copy of the arbitral award on 22.07.2006 was well aware of the making of the award. The date on which the copy of the award has been received by the Assistant Traffic Manager, i.e. 22.07.2006 would be the date from which the limitation in filing the application under Section 34 of the Act,1996 would commence as per sub-section (3) of Section 34 of the Act of 1996.
6.2. Both the decisions relied by the learned counsel for the appellant as noted herein-before, would not come to the rescue of the appellant, inasmuch, as they are distinguishable in the facts and circumstances before the Court in those matters. In the case of Union of India (supra), though arbitration proceedings were being contested by the Chief Engineer, who had signed on behalf of the Union of India, who was directly concerned with the arbitration and the subject matter of arbitration also related to the department of Chief Engineer, the arbitral award was served on the General Manager of the Railways. The Hon'ble Apex Court, therefore, found that the service of the arbitral award on the General Manager of Southern Railways, would not be service of the arbitral award upon the party, within the meaning of sub-section (3) of Section 34 of the Act, 1996.
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6.3. In another decision in the case of Benarsi Krishna Committee & Ors. (supra), the arbitral award was served upon the advocate appearing for the party and, as such, it was observed by the Hon'ble Apex Court that the party within the meaning of Section 34 (3) of the Act, 1996 as defined in Section 2(H) of the Act, 1996 would mean the party himself and not his or agent or advocate empowered to act on the basis of the Vakaltanama.
7. For the above discussion, the arguments made by the learned advocate for the appellant to assail the decision of the learned Court of rejection of the applications under Section 34 of the Act, 1996 being beyond the period of limitation prescribed in Section 34 (3) of the Act of 1996, is liable to be turned down. The judgment and order dated 12.02.2009 passed by the learned Additional District Judge, Jamnagar in Civil Misc. Application No. 417 of 2006 and Civil Misc. Application No. 418, cannot be said to suffer from any error in law. The appeals stand dismissed, accordingly.
All pending Civil Applications stand disposed.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) phalguni Page 6 of 6 Downloaded on : Tue Aug 06 21:00:42 IST 2024