Delhi High Court
Kamdhenu Cooperative Group ... vs Vardhman Contractors And ... on 16 February, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 7382/1998 (under Section 5 of the Limitation Act)
IA No. 7383/1998 (under Sections 30 and 33 of the Arbitration Act, 1940)
1. The petitioner was awarded the contract for construction by the respondent society and since disputes arose between the parties, the respondent filed a petition under Section 20 of the Indian Arbitration Act 1940 (hereinafter referred to as the said Act) being suit No. 2699/1995. The said petition was allowed vide order dated 20.3.1996. Mr. M.R. Warerkar was appointed as the Sole Arbitrator. The Sole Arbitrator entered appearance and made and published his award dated 17.8.1996. It may be noticed that the respondent after initially seeking adjournments failed to attend the proceedings and award has been made in the absence of the respondent.
2. The first issue raised is as to whether the proceedings are to be considered under the Old Act or the New Act. In this behalf learned counsel for the respondent submits that the petition under Section 20 of the Old Act was filed in 1995, i.e. prior to the Arbitration and Conciliation Act 1996 coming into force. The order of reference was however passed on 20.3.1996. Learned counsel for the respondent contends that in view of the judgment of the Supreme Court in Milkfood Ltd. v. GMC Ice Cream (P) Ltd. 2004(1) Arb. LR 613 (SC), it is the date of issuance of notice for appointment of Arbitrator which is the relevant date for determining as to which Act would apply. Learned counsel for the respondent submits that in the present case no such notice was actually issued and the respondent had filed the proceedings before the Court. Learned counsel further tries to contend that some letters were issued by the respondent which may be considered as a notice. Be that as it may, learned counsel contends that the learned single Judge of this Court in Anand Kumar Jain v. Union of India 1984 RLR 438, held that the date of issuance of notice in application under Section 20 of the Old Act is to be considered as the date of notice for reference of disputes to Arbitration. Learned counsel states that even if that date be considered, the petition having been filed in 1995, the dispute will be governed by the Old Act.
3. Learned counsel for the petitioner has chosen not to remain present to make any submissions. In view thereof I am inclined to accept the submission of the learned counsel for the respondent that the objections be considered under the Old Act.
4. Learned counsel for the respondent states that insofar as the issue of delay in filing the objections is concerned, the respondent had changed the address which was given at the stage when the earlier petition was filed and despite this the respondent was sought to be served at the earlier address. The respondent was served by publication even when the reports of service had not shown any refusal possibly on the assumption that the address given is the only address known. Respondent claims that his counsel came across the matter and that is when he entered appearance. It is not clear as to under what circumstances the respondent came to know about the proceedings but be that as it may I have to consider the fact that the respondent chose to stay away from the proceedings.
5. The scope of enquiry of the objections is limited in view of the parameters under Sections 30 and 33 of the Arbitration Act, 1940. This Court does not sit in appeal over the said Award nor is this Court to reappreciate evidence. So long as the view taken by the Arbitrator is a plausible one, no interference is called for. In this behalf a reference may be made to the judgment of the Apex Court in State of UP v. Allied Constructions .
6. An important fact is that the respondent chose to stay away from the Arbitration proceedings. Learned counsel for the respondent has sought to contend that in the meantime the address of the respondent had changed and this fact was even brought to the notice of the Arbitrator. Learned counsel has sought to produce a letter in Court dated 11.6.1996 in this behalf which is alleged to have been sent by hand and the endorsement was made that there was a refusal to receive the letter at the office of the Arbitrator and the same was sent through Registered AD. The perusal of the award and the record show that the respondent did have notice of the proceedings and sought adjournments and thereafter absented himself. It is not a case where the respondent was not aware of the Arbitration proceedings but for the reasons best known to the respondent, respondent chose not to contest the matter. In the ground a lot of emphasis is laid on the fact that the Arbitrator ought to have labelled the respondent, as a claimant instead of respondent. Imputations have been made before the Arbitrator against the request of the respondent to label him as a claimant and this is apparent even from the communications of the respondent. In my considered view the respondent deliberately took an uncooperative stand in deciding to stay away from the Arbitration proceedings and must bear the consequence thereof.
7. A further plea is also sought to be raised that the award is not made and published within four months from the date the Arbitrator entered upon reference. However, it is not the date of the judgment of the Court which would be relevant but the date when he entered upon reference for the first time which is within four months from the date of award.
8. The Arbitrator has granted interest @ 18% p.a. till the date of payment or date of decree, whichever is earlier. Taking into consideration the prevailing rates of interest and the interest as awarded by this Court in numerous matters, I am of the considered view that the rate of interest is liable to be reduced to 12% p.a. from 18% p.a. payable till the date of decree.
9. Applications stand disposed of.
CS (OS) No. 2458A/1996
10. In view of the objections having been disposed of, the Award dated 17.8.1996 made and published by the Sole Arbitrator, Shri M.R. Warerkar is made Rule of the Court with the modification that the petitioner is entitled to simple interest @ 12% p.a. till the date of decree instead of 18% p.a. The petitioner shall also be entitled to future interest from the date of decree till the date of realisation @ 9% p.a. The parties are left to bear their own costs.
11. Decree-sheet be drawn up accordingly.
