M/S Anish (India) Export & Ors. vs Sh.Rajender Prasad Gupta & Ors.
2008 Latest Caselaw 2075 Del

5*     IN   THE    HIGH     COURT    OF    DELHI   AT   NEW    DELHI


+      FAO 77/2007 & FAO 78/2007

                                           Date of decision: 25.11.2008
1.     FAO 77/2007

       M/S ANISH (INDIA) EXPORT & ORS.             .....        Appellant
                      Through: Mr.Feroze Ahmed, Adv.

                            versus

       SH.RAJENDER PRASAD GUPTA & ORS.             ..... Respondent
                    Through: Mr. V.B.Arya and Ms.Nimisha Agarwal,
                    Advs.

                                 AND

2.     FAO 78/2007

       SHRI ANISH TANDON                        .....          Appellant
                     Through: Mr.Gagan Mathur, Adv.

                            versus

       SH.RAJENDER PRASAD GUPTA & ORS.             ..... Respondent
                    Through: Mr. V.B. Arya and Ms.Nimisha Agarwal,
                    Advs.

        CORAM:
        HON'BLE MR. JUSTICE V.K.SHALI


     1. Whether reporters of local papers may be
        allowed to see the judgment?          NO
     2. To be referred to the Reporter or not? NO
     3. Whether the judgment should be reported in the Digest? NO



                    JUDGMENT

%

V.K.SHALI, J (Oral)

1. These are two First Appeals against the orders passed by Smt.

Shalinder Kaur, Additional District and Sessions Judge, Delhi in Suit

Nos.120/2005 titled as M/s Anish (India) Export & Ors. Vs. Sh.Rajinder

Prasad Gupta & Ors. and Suit No.121/2005 titled as Sh.Anish Tandon Vs.

Sh. Rajinder Prasad Gupta & Ors. By virtue of the aforesaid order,

learned Additional District and Sessions Judge, Delhi has dismissed the

objections of the appellant filed under Section 34 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as „Act‟) on the ground that

they are beyond the period of limitation. Feeling aggrieved from the said

order, the present appeals have been preferred.

2. Briefly stated the facts of the cases are that the appellant filed

objections for setting aside the award dated 8th January, 2005 passed by

the sole arbitrator Mr.Rajinder Prasad Gupta in the aforesaid two cases.

It was contended that by the aforesaid award, an amount of Rs.2,34,762/-

along with interest @ 15% per annum each was awarded in favour of the

respondents. It is contended that the aforesaid award was passed

without jurisdiction and is illegal and invalid as there was no arbitration

agreement between the parties for appointing Sh.Rajainder Prasad Gupta

as an arbitrator. Without going into the questions of merit of the award,

the case of the appellant was that though the award was passed on 8th

January, 2005 however, they got the intimation about the award for the

first time only when they received the application seeking execution of the

award accordingly, they applied for certified copy of the award to the

Hindustan Mercantile Association (Regd.) which had appointed the

arbitrator and they learnt about the factum of award having been passed

on 8th January, 2005. The factum of their knowledge about the award

was got by them only on 6th June, 2005 and they chose to file the

objections under Section 34 of the Act on 16th August, 2005 against the

award. Learned Additional District Judge, Tis Hazari Courts, Delhi with

reference to Section 34 (3) of the Act was of the opinion that the period of

limitation for filing the award is to be reckoned from the date of the award

itself i.e. from 8th January, 2005 and if done so, the period of limitation has

expired long back while as the objections have been filed only on 24th

August, 2005. Accordingly, objections were held to be beyond the period

of limitation.

3. I have heard the learned counsel for the parties and gone through

the record of the arbitrator. Section 34 (3) of the Act 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:"

A perusal of the aforesaid Section shows that the application for

setting aside the award has to be made within three months from the date

of receiving of the arbitral award. In the instant case, there is no dispute

that the award was passed on 8th January, 2005. The plea which has

been taken by the appellant is that he did not receive the copy of the

award. On the contrary, he learnt about the award through Hindustan

Mercantile Association (Regd.) and accordingly applied for certified copy

which was given to him in June, 2005 and thus the period of limitation of

three months in terms of Section 34 (3) of the Act is to be reckoned from

the said date of his knowledge. If done so, the period of limitation would

expire in the month of September, 2005 while as he choose to file the

objections on 24th August, 2005 and thus the objections of the appellant

were within time and it could not have been rejected.

4. No doubt, Section 34 (3) of the Act clearly lays down the period of

limitation is three months from the date of receipt of the arbitration award,

but the onus is on the person claiming the benefit of limitation to show

that prima facie his objections are within time. In the instant case, award

has been passed on 8th January, 2005. I have perused the record of the

arbitrator which shows that on 8th January, 2005 that is the day on which

the award was passed copies of the award have been dispatched by UPC by

registered post as well as by ordinary post on all addresses of the

appellants which were available on the record of the arbitrator and which

are tallying with the address which have been given in the memo of parties

to appeal by the appellants. Although one registered letter has been

received back but there is no other letter which has been received back

from the address of the appellant. Under section 114 (e) of the Evidence

Act, which lays down that a presumption of Official Acts have been

performed and accordingly a presumption can be drawn that if a letter is

addressed to a person and it is shown to have been dispatched then

presumption is that such letter has been delivered to him.

5. In the instant case on the basis of the postal receipts and the UPC

certificate, a presumption of fact can be drawn that the letters

accompanying the award which was dispatched on 08th January, 2005

was received by the appellant within a reasonable time. The onus was on

the appellant to show that the he did not receive the letter containing the

award. The appellant has not placed on record any documentary or oral

evidence to dislodge that presumption of fact. On the contrary he seems

to have taken a false plea that the letters were not received by him.

Learned counsel for the appellant has stated that the postal receipts which

are placed on record do not bear the complete address of the appellant. It

is a common knowledge that the postal receipt which is issued by the post

office does not bear the complete address unless and until special care is

taken to have the same mentioned but the letter accompanying the

award clearly show that three addresses were mentioned which were given

by the appellant. Therefore, it is reasonably safe to presume that the

awards were sent to the appellant on 8th January, 2005 which must have

been received by them within a week and ensuing from the said date. If

that be so, the period of limitation has to be necessarily reckoned with

effect from maximum from 15th January, 2008 or so if done so admittedly

the present objections have been filed more than three months after the

date of receipt of the award.

6. No doubt the provision of condonation of delay ought to be

construed liberally and only quantum of delay must not be seen, but it is

also correct that bonafides of a person must be seen. In the instant case,

if we judge the conduct of the appellant with regard to the condonation of

delay in filing the objections, I am of the considered opinion that not only

objections are barred by time but even the delay does not deserve to be

condoned on account of the false stand taken by the appellant to the effect

that they did not receive the copy of the award which is belied from the

record of the arbitration which has been seen by this Court. Condoning

the delay in the instant case would be putting premium on dishonest

stand of a party, which should not be done in any circumstances

whatsoever.

7. For these reasons, I am of the considered opinion that there is

nothing wrong or illegal or improper in the order passed by the learned

Additional District Judge in rejecting the objections under Section 34 of

the Act of the appellant on the ground of limitation itself. Accordingly, the

appeals are dismissed. No order as to costs.

V.K.SHALI, J November 25, 2008 RN/KP