M/S Simplex Concrete Piles (I) Ltd vs Union Of India
2009 Latest Caselaw 1546 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      IA.No.835/2003 in CS(OS) 614A/2002

%                                   Date of decision: 21st April, 2009

M/S SIMPLEX CONCRETE PILES (I) LTD .......                        Petitioner
                             Through: Mr V.P. Chaudhary, Sr Advocate with
                                      Mr G. Tushar Rao and Mr Nitinjya
                                      Chaudhary, Advocates.

                                       Versus

UNION OF INDIA                                      ....... Respondent
                             Through: Ms Monika Garg, Advocate.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment? Yes

2.     To be referred to the reporter or not? Yes

3.     Whether the judgment should be reported
       in the Digest? Yes


RAJIV SAHAI ENDLAW, J.

1. The respondent Union of India seeks condonation of delay of

118 days in filing the objections to the arbitral award, under the

Arbitration Act, 1940. The application has been contested

vehemently by the petitioner. At the outset, it is contended that the

delay in filing the objections is of 315 days and not 118 days as

represented by the respondent. Thus, at the outset, it has to be

determined as to how much is the delay. The respondent has

computed 118 days on the premise that upon receipt of award in this

court, on 2nd April, 2002 notice of filing of the award was ordered to

be issued to the parties for 23th August, 2002; that even though

notice had not been served on the respondent, but the counsel for

the respondent appeared on 23rd August, 2002; that the objections

ought to have been filed within 30 days thereof but have been filed

on 18th January, 2003.

2. On the contrary, the senior counsel for the petitioner has

contended that the record shows that the arbitrator had forwarded

the award dated 29th December, 2001 together with the arbitral

record under cover of his letter dated 18th January, 2002 to Mr

Sanjay Kaul, ASW, CWE, New Delhi, Delhi Cantt of the respondent

with authority to file the same in this court; that the said officer of

the respondent filed the said record in this court under cover of his

letter dated 5th February 2002, on 6th February, 2002 and thus the

respondent acquired knowledge of the filing of the award on 6th

February, 2002 itself and ought to have filed the objections within 30

days thereof. It is thus contended that so computed, the delay is of

in fact 315 days.

3. The limitation for preferring objections to the award, under

Article 119 of Schedule I of the Limitation Act, 1963 is of 30 days

commencing from the date of service of the notice of the filing of the

award. The senior counsel for the petitioner has relied upon (a)

Food Corporation of India Vs E. Kuttappan (1993) 3 SCC 445

holding that when on the request of a party, the arbitrator forwards

the award to the advocate for that party for filing in the court, such

party had notice of the filing of the award on the date of his advocate

filing the same in the court. (b) National Insurance Co. Ltd Vs

Punam Chand Jain AIR 1983 Calcutta 148 holding that the

limitation runs from the date of knowledge of the filing of the award.

(c) Gurbax Singh Vs Punjab Mandi Board AIR 2004 SC 1269 that

the limitation runs from the issuance of notice of filing of the award

and not from the date of filing connected papers to the award and

further holding that issuance of fresh notice by substituted service

does not negate effect of deemed service of first notice effected on

earlier date. (d) The State of Bihar Vs Liason and Contracts AIR

1983 Patna 101 again holding that knowledge of filing of the award

is enough to start the limitation for preferring objections thereto and

separate notice of filing of the award is not required. (e) Nilkantha

Sidramappa Ningashetti Vs Kashinath Somanna Ningashetti

AIR 1962 SC 666 holding that limitation for preferring objections

begins from intimation of filing of the award and there is no

requirement for the service of a written notice and (f) Devandas

Kishnani Vs Nanikram Kishnani AIR 1993 Bombay 76 also

holding that the limitation runs from the date of knowledge of filing

of the award.

4. Section 14(2) of the Arbitration Act, 1940 requires the court,

upon the award having been filed therein to thereupon give notice to

the parties of the filing of the award.

5. In the present case the arbitrator was an official of the

respondent Union of India, posted at Pune. The petitioner, after

knowledge of making of the award on 28th January, 2002 filed

CS(OS)371A/2002 in this court under Section 14 of the Act for filing

of the award. In the said suit, the petitioner impleaded the Union of

India through the Chief Engineer Delhi Zone, M.E.S., Army

Headquarters, Delhi Cantt as the respondent No.1, the Engineer-in-

Chief (Surveyor of Works Dte.) Army Headquarters, Kashmir House,

DHQ PO, New Delhi-110011 as the respondent No.2 and the

arbitrator as the respondent No.3. Notice of the said suit was issued

to the arbitrator only. The arbitrator as aforesaid had already under

cover of his letter dated 18th January, 2002 (supra) to the official of

the respondent at Delhi Cantt and with notice to the Chief Engineer,

Delhi Zone, Delhi Cantt. to the petitioner and to the Commander

Works Engineers, Delhi Cantt had forwarded the award for filing in

this court and the award was filed in this court on 6th February,

2002. Upon receipt of the said record in this court, the same was not

filed in CS(OS)371A/2002 (supra) (which had not been listed till

then) but was filed in CS(OS)614A/2002. The said CS(OS)614A/2002

was listed before the Joint Registrar of this court first on 2 nd April,

2002 when none appeared before the Joint Registrar and the Joint

Registrar as aforesaid ordered notice of the filing of the award to be

issued to the parties.

6. It is significant that though a copy of the letter dated 18 th

January, 2002 of the arbitrator was marked to the petitioner also but

the petitioner, in spite of the same, filed CS(OS)371A/2002 in this

court which was listed first on 26th February, 2002 and thereafter on

several dates. The petitioner did not inform this court in

CS(OS)371A/2002 of the receipt of the letter dated 18th January,

2002 from the arbitrator. Only on 15th January, 2004 i.e., after the

objections had been filed by the respondent alongwith the

application for condonation of delay in filing the objections, the

petitioner informed the court in CS(OS)371A/2002 for the first time

that the award had already been filed in this suit. It was only on 17th

March, 2005 thereafter that the CS(OS)371A/2002 was disposed of.

7. The official of the respondent Union of India, acting as

representative of the arbitrator in the matter of filing of award in

this court, is not shown to be authorized by any rule or procedure of

functioning of Union of India or the Government for forwarding the

award to the department concerned involved in the arbitration for

filing in the court. The letter dated 18th January, 2002 of the

arbitrator in the present case is thus not to the department of the

respondent concerned in the proceeding but to an official of the

respondent at Delhi, and merely for convenience. Merely because

the arbitrator himself being an employee of Union of India has

sought the assistance of his colleague to save the bother of coming

personally to Delhi for filing of the award in this court and/or to

avoid the vagaries of post, does not mean that the respondent had

knowledge of the filing of the award. Union of India is a humungous

entity and various officials and functionaries whereof in the matter of

their conduct are governed by rules or charter. It comprises of lakhs

of officials and departments and just because the legal entity is one,

knowledge of one official cannot ipso facto be imputed to the other.

The objections ultimately filed by the respondent to the award are

supported by the affidavit of one Mr V.K. Gupta, Garrison Engineer,

EME, RR Hospital, Rao Tula Ram Marg, Delhi Cantt, New Delhi. It is

not as if the objections have been filed by the same officer at Delhi to

whom the award had been forwarded by the arbitrator from Pune.

Thus, in the absence of any proof, it cannot be held that knowledge

of the official authorized by the arbitrator to file the award is

knowledge of the department of the respondent concerned in this

arbitration.

8. Food Corporation of India (supra) cited by the senior

counsel for the petitioner is distinguishable. In that the award was

sent by the arbitrator to the advocate engaged by party to

arbitration, that too upon receipt of request from that very party. It

was in these circumstances held that that party had knowledge of

filing of award by its advocate in court. Here, there is nothing to

show that the department of Union of India involved in arbitration

had requested the forwarding of award to Delhi for filing in court.

The letter dated 18th January, 2002 of arbitrator to Registrar of this

court on the contrary shows that the petitioner had vide its letter

dated 8th January, 2002 to arbitrator requested so.

9. I am also of the view that mere ministerial act of filing of the

award in this court is not enough for objections to be preferred. The

filing of documents and award in this court is governed by rules and

it is not necessary that whatever is filed in this court is taken

cognizance of by the court. This court has a registry which

scrutinizes the documents and pleadings filed before it and if not

found to be in order, the same are not even put up before the court

and are returned/rejected. The rules further provide for the time for

refilling of the said documents/pleadings after removing the

objections / defects, if any, for rejection/return by the registry. If the

refilling is not done within the prescribed time, the benefit of the

date of first filing is not to be available. Section 14 of the Arbitration

Act, as aforesaid, requires the court, upon finding the award to have

been filed in accordance with the law, to issue notice of filing

thereof. In my considered view, it is only when there is a validly filed

award before the court and of which the court has taken cognizance,

can the question of preferring objections thereto arise. What

purpose would be served in filing the objections when there is no

award before the court. Thus, in my view, considering the rules of

filing in this court, it cannot be said that the mere ministerial or

physical act of the representative of the arbitrator leaving the award

on the filing counter of this court would commence the running of

the time for filing the objections, even if knowledge thereof is

imputed to the respondent. The rules of this court further provide for

destruction of documents returned as defective or under objection

and which are not taken back by the parties. Thus, to test the

proposition, it is possible that an award filed in this court may

remain lying under objections and may not be taken cognizance of by

the court at all. In those circumstances there can be no question of

filing objections thereto. The Apex Court also in Food Corporation

of India (supra), notice in para 11 of the judgment is taken of

acceptance by court of filing of the award. Here, though the award

was filed as aforesaid on 6th February, 2002, the listing thereof

before court is much later, on 2nd April, 2002. Prior thereto, on 28th

January, 2002 CS(OS) 371A/2002 had been filed in this court by

petitioner for the relief of filing of the award in this court. If the

period for filing objections is to be counted from 6th February, 2002,

as contended by the petitioner, the limitation therefor will expire

even before the court accepted the filing of the award. Till then,

there was no suit, in which objections could be filed / preferred.

10. It is also significant that on 2nd April, 2002 when this court first

took cognizance of the award and ordered the issuance of notice of

filing of the award to the parties, none had appeared before this

court, not even the official of the respondent who had been

authorized by the arbitrator to file the award in this court. This is

another distinguishing feature from the cases cited. No advocate of

the respondent was involved in this case. Thus, it cannot be said

that official filing the award would have even known of the listing of

the award before this court on 2nd April, 2002. The petitioner itself

did not know of the same and inspite of arbitrator acting on its

instructions and with intimation to petitioner, continued to pursue

independent remedy by way of CS(OS)371A/2002.

11. I, therefore, conclude that the date of computation of 30 days

for filing the objections shall be from 23rd August, 2002 as contended

by the respondent and not from 6th February, 2002 as contended by

the petitioner. The delay is thus of 118 days and not of 315 days.

The respondent has contended that the objections were got drafted

and signed in September, 2002 itself; however, the counsel for the

respondent had shifted his office in late September, 2002/early

October, 2002; that the file had thus got misplaced; that the official

of the respondent got in touch with the counsel for the hearing on 2nd

January, 2003, to which date the matter had been adjourned after

23rd August, 2002 and when it was realized that the objections had

not been filed; that the same were filed immediately thereafter.

12. The senior counsel for the petitioner has contended that the

allegations are vague as no affidavits of the concerned persons have

been filed. He has also relied upon the order dated 16th December,

2005 in IA.No.2179/2000 in CS(OS)1061A/1999 in another matter of

the petitioner and in which the application for condonation of delay

was dismissed. Per contra, the counsel for the respondent has relied

upon Bharat Coking Coal Ltd Vs L.K. Ahuja & Co. (2001) 4 SCC

86 and Municipal Corporation, Gwalior Vs Ramcharan (2002) 4

SCC 458. I do not find the former of the said judgments apposite to

the facts of the case. In the later judgment it has been held that the

courts ought to concentrate on the merits of the matter and ought

not to take rigid and too technical view. The delay in that case was

of 39 days and attributed to noting of a wrong date and was

condoned. In the present case I find the explanation given for delay

to be plausible. Of course, at this stage, the truthfulness of the same

in absolute terms cannot be decided. The only option is to list the

matter for evidence on the application, if truthfulness is to be

determined beyond doubt. However, such approach is not

feasible/practical and would lead to further delay. The objections

have already remained pending for the last over six years and I deem

it expedient that the same be considered on merit. It has been

repeatedly laid down by the Apex Court that the courts in the matter

of condonation of delay ought not to take a pedantic approach.

I thus find the ground for condonation of delay to have been

made out. The application is allowed.

RAJIV SAHAI ENDLAW (JUDGE) April 21, 2009 M