Kochhar Construction Works vs Delhi Development Authority & ...
1999 Latest Caselaw 1067 Del

ORDER

Manmohan Sarin, J.

1. By this order, I would be disposing the application filed by the petitioner under Order XII R. 6 CPC as well as the objection of the petitioner that the objection namely IA No. 4145/95 filed by the respondent/DDA are barred by limitation. The petitioner's prayer accordingly is that the objections filed by the respondent/DDA be dismissed, i.e. IA 4141/95 be dismissed as barred by limitation and the amount of claims in respect of which the petitioner has not preferred any objections, be paid to the petitioners.

2. The events leading to the filing of the present application may be briefly recapitulated:

The arbitrator Mr. S.C. Kaushik on 27th May, 1994 made and published his award. It is the petitioner's case that a copy of the award was sent by the arbitrator to both the parties on 31st May, 1994. The petitioner filed an application under Section 14 of the Arbitration Act, 1940, on 29th June, 1994. The arbitrator in pursuance to the notice, filed the award along with arbitral record on 6th September, 1994, endorsing copy of the same to the respondent/DDA. In any case, the Court directed the issuance of notice of filing of award to the respondent inviting objections if any. The case of the petitioner is that as per the report of the process server dated 10th October, 1994, notice of the filing of the award was issued for service to the respondent/DDA, but the receipt clerk/DDA refused to accept the same on the ground that copy of the petitioner/award was not annexed thereto. In the meanwhile, petitioner had also preferred objections to the award vide IA No. 9008/94. Notice of these objections was served on the respondent/DDA on 25th January, 1995 when the counsel for DDA was also present in Court. In the event, the respondent/DDA filed objections to the award vide IA No. 4145/95 on 22nd February, 1994.

3. Learned counsel for the petitioner, Mr. Bindra persuasively attempted to urge that the respondent/DDA was fully aware of the making and publishing of the award, the same having been sent to it earlier. He further submits that it was not obligatory to tender either the copy of the petition or copy of the award along with the notice of filing of the award. Refusal to accept such a notice as per the report of the process server amounted to service and the respondent/DDA having failed to file objections within time, the award was liable to be made rule of the Court as against the DDA subject to the decision on petitioner's objections.

Learned counsel for the petitioner in support of his submission relied on Shri Inder Khanna & Sons Vs. Union of India reported at 1991 (1) ALR 411, wherein a learned Single Judge of this Court held as under :-

"On perusal of the order of this court dated 18th of November, 1989, and of the record of the case, in the order, it was observed by the learned Judge that the respondent had not received notice if fukubg if award ib ust Hybem 1989, for want of enclosure. No enclosures were enclosed or mentioned in the notice. It was merely a notice of filing of the award and the proceedings. Therefore according to the learned Judge this amounted to service on the respondent, as the respondent refused to accept the notice of filing of the award. I am in entire agreement with such finding as along with notice of filing of the award no enclosures mentioned in the notice are required to be sent to the parties for service. What is required to be done is due notice to the parties about the filing of the award in the court. Since statu-

tory period for filing objections had expired and no objections were filed, in those circumstances the award dated 26th October, 1988 made by Shri J.P. Singhal was rightly made rule of the court and decree was passed in terms thereof and award was made a part of the decree."

4. Mr. Bindra, further submitted that in the instant case the respondent have not even moved an application for condensation of delay. He also placed reliance on Kanishka Builders Vs. Union of India and Another reported at 1990(s) ALR 198, Narain Dass R. Israni Vs. Union of India 1992 (1) 405 and M/s. Rish Prabhat Vs. Delhi Development Authority to oppose condensation of delay since no ground had either been set up or existed.

5. Learned counsel for the respondent does not dispute the factual matrix of the case as set out, except the tendering and service of notice at the counter of the DDA. Reply to the application under Order 12 Rule 6 is stated to have been filed in the registry. The original was not available on record. Learned counsel for the respondent has therefore tendered a report, copy of the same for reference of the Court as well as the opposite counsel. The original be traced and placed on record. Learned counsel urges that no credence ought to have been given to the report of the process server, which was not supported by any other independent witness. Learned counsel submits tha although the notice of the objections filed by the petitioner i.e. IA No. 9008/94 was served on the respondent on 16th December, 1994, the same was without a copy of the objections petition and accordingly the respondent could not co-relate the same with the present award. Upon appearing in Court on 25th January, 1995 the petitioner became aware of the full details of the case and filed its objections on 22nd February, 1995. It is thus urged that the objections filed are within time.

6. Having considered the submissions made by the learned counsel for the petitioner and the Authorities relied upon him and having heard the learned counsel for the respondent, I am of the view, that in these facts and circumstances, it cannot be held that the respondent had been duly served. Even if the petitioner's version of refusal by the clerk of the DDA is accepted, what has to be seen is whether the notice that was tendered provided sufficient particulars to the respondent to enable it to file the objections?

7. In the instant cases the notice sought to be served on the DDA is as under:-

Suit No. 1455 of 1994.

To,

Delhi Development, Authority service to be affected through the Executive Engineer, Eastern Division No. 8, D.D.A., New Patparganj Depot, Mandawali Fazalpur, Delhi - 110092.

"WHEREAS Sh. S.C. Kaushal the Arbitrator has filed the award dated 27.5.94 delivered by the said Arbitrator with arbitration proceedings in Court in disputes inter-se you respondent and petitioner for being made a rule of the Court. The suit is fixed for hearing on 30.11.1994 at 11.00 a.m. before the Joint Registrar of this Court.

You are hereby called upon to file objections, if any, in accordance with law to the said award within 30 days of the service of this notice.

Take notice that your failure to do so as stated above would entail the consequence enjoined by law.

Dated this 23rd day of September, 1994.

Superintendent (O) for Registrar.

8. It would be seen from the notice sought to be tendered that though it mentioned the Executive Engineer of the concerned Division, unfortunately, it made no reference to the construction work in relation to which the award had been made. A Division Bench of our Court had the occasion to consider this aspect in Union of India Vs. Surinder Kumar Division Bench. The Division Bench taking note of the existence of the bureaucratic hierarchy as well as the numerous divisions and departments which exist in the Government, formulated guidelines and gave directions which may be usefully reproduced. Although, it was a case where the notice has been sent simply to the Union of India, the observations made by the Division Bench are of relevance :-

"In the instant case the notice does not specify the name of the work, the division or department to which the matter pertained or even the contract number. It is needless to point out that Ministry of Urban Development has a very large area of operation covering several departments of the Government including C.P.W.D. which itself has several divisions spread all over the country. Therefore, unless the notice of filing of the award gives the details of the arbitration matter in which award is given, it cannot be considered as a proper notice in accordance with law. Besides, it was not enough to direct notice of the filing of the award to the Secretary of the Government of India, Ministry of Urban Development particularly when the notice failed to disclose the material particulars of the mater. In the circumstances, the notice ought to have been sent to the Executive Engineer, who was the Engineer-in-charge, of the work, was dealing with the matter."

"Having regard to the aforesaid difficulties, we are of the opinion that wherever an Arbitration renders an award in a matter which concerns the Central Government, a notice should not only be directed to the Secretary of the concerned Ministry but also to the concerned officer who dealt with the mater on behalf of the Union of India before the Arbitrator. The notice of the filing of the award must specify the details relating to the project with regard to which the arbitration was conducted. For this purpose, the party filing the application for directing the Arbitrator to file the award or asking the Court to make the award a rule of the Court should specify the name of project and the officer-in-charge of the same in the cause title of the case so that while issuing notice of the filing of the award the Registry could mention the necessary details of the matter, If these formalities are complied with there will be no scope then for urging the violation of principles of natural justice or for urging that the notice was not in accordance with law".

9. I find that in the present case also the name of the construction work to enable co-relation with the award in question had not been mentioned. The notice as issued, therefore, did not meet the requirements as set out by the Division Bench in its decision. Moreover, in the instant case the respondent is also disputing very factum of service. In these circumstances the Authorities cited by the petitioner would be of no avail and the petitioner cannot take any advantage of the same.

10. Accordingly, I hold that the notice, which was sought to be tendered for service was not complete and did not meet the requirements of details required to be given in the notice, inviting objections on filing of the award, as set out by the Division Bench. Accordingly, the application Ia 4145/96 under Order 12, Rule 6 of the Code of Civil Procedure is dismissed and the plea of the petitioners that the objections filed by the respondents are barred by limitation, is rejected.

11. List the objections of both the parties and the suit for disposal on 24th February, 2000.