Smt. Ranjana Kapoor vs The Registrar & Ors.
2009 Latest Caselaw 2980 Del

Citation : 2009 Latest Caselaw 2980 Del
Judgement Date : 3 August, 2009

Delhi High Court

Smt. Ranjana Kapoor vs The Registrar & Ors. on 3 August, 2009

Author: Badar Durrez Ahmed

       THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment delivered on: 03.08.2009

+      W.P.(C) 2722/1989

SMT. RANJANA KAPOOR                                            ..... Petitioner

                                  - versus -

THE REGISTRAR & ORS.                                         ..... Respondents

Advocates who appeared in this case:-

For the Petitioner : Mr. Sanjay Poddar, Advocate

For the Respondent : Mr. V.K. Tandon, Advocate for RCS.

Mr. Harish Malhotra, Sr. Advocate with Mr. Sunil Malhotra, Advocate for LRs of respondent no.4.

Mr. B.L. Anand, Advocate for respondent no.5. CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

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

2. To be referred to the Reporter or not?

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

BADAR DURREZ AHMED, J (oral)

This writ petition is directed against the order dated 24.07.1989,

passed by the Delhi Cooperative Tribunal. The impugned order was passed

in an appeal under Section 76(2)(a) of the Delhi Cooperative Societies Act,

1972 (hereinafter referred to as the said Act), challenging an ex-parte award

dated 14.12.1988. By virtue of the impugned order, the petitioner's appeal

had been dismissed on the ground of limitation. The period of limitation

prescribed for an appeal under section 76(2)(a) is 60 days from the date of

the award. It was the contention of the petitioner, before the Tribunal, that

the petitioner had come to know about the ex-parte award on 23.05.1989,

when she received a letter from the respondent Society asking her to hand

over the physical possession of the plot in question, in terms of the

impugned award dated 14.12.1988. It was contended that immediately

thereafter the petitioner engaged a counsel and filed the appeal before the

Tribunal within 60 days from the date of the said letter dated 19.5.1989. It

was also contended that the period of limitation be reckoned from the date of

knowledge of the impugned order, that is, from the date of receipt of letter

dated 19.05.1989. The letter was received on 23.05.1989.

2. The Tribunal, however, rejected the plea of the petitioner in the

following manner:-

"I am afraid, I do not find any valid force in the above contention of the appellant. Admittedly, the impugned Award against the Appellant was an ex parte one. It is to be examined if the appellant was validly served during the arbitration proceedings or not. It has categorically been recorded in the impugned Award that notices through registered A.D. post were sent to the appellant by the Arbitrator and that the Appellant "refused" to take delivery of the same. This fact has not been challenged on behalf of the Appellant anywhere in the pleadings before me. It therefore follows that unless the Appellant challenged the order of ex parte proceedings in the arbitration case, it does not lie with her to plead that she came to know of the Award at a latter stage, as there was no occasion for the Arbitrator to inform the Appellant about the impugned Award when she had already been ordered to be proceeded against ex parte. I, therefore, find no ground much less sufficient ground for condonation of delay in the present case.

4. As a result of the above, the application for condonation is disallowed and consequently the present appeal is dismissed as being barred by limitation."

(underlining added)

3. We have heard the counsel for the parties. Rule 89 of the Delhi

Cooperative Societies Rules, 1973, relates to the award or decision. The

said provision, so far as is relevant for the present purposes, is reproduced

hereinbelow:-

"89. Award or Decision

1. The arbitrator shall make a memorandum of the statements of the parties who attended and of such witnesses as are examined and upon the evidence so recorded and after consideration of any documentary evidence produced by either party shall make an award in accordance with justice, equity and good conscience, he shall record his award signed and date it within a period of three months and shall communicate it to the party concerned. In case the arbitrator is unable to decide the case and made the award within three months he shall seek extension of the period in writing from the Registrar by making an application to him.

xxxx xxxx xxxx xxxx

4. The award shall be communicated to the party by-

              (a)    pronouncement of the award, or
              (b)    registered post to any party which may be absent
                     on such date.

       xxxx                xxxx               xxxx               xxxx"


                                                  (emphasis supplied)

4. A plain reading of the above provisions clearly indicates that by virtue

of Rule 89(1), the Arbitrator is required to communicate the award to the

party concerned. Sub-Rule (4) of Rule 89 indicates the manner in which the

award is to be communicated. Two modes have been prescribed. The award

can be communicated either by pronouncement or by registered post to any

party which may be absent on such date. It is obvious that the petitioner,

having been proceeded ex-parte, was absent on the date of pronouncement,

if any. Therefore, the only mode of communication of the award was by

way of registered post.

5. Reading the said provisions along with the finding returned by the

Tribunal, we are of the view that the Tribunal mis-directed itself in

confusing the service of notice with regard to the arbitration proceedings

with the question of communication of the award to the parties. Even if a

party had been proceeded ex-parte at the arbitration stage, the award still

needed to be communicated. That aspect of the matter has not been

examined by the Tribunal. The period of limitation would have to be

considered from the date of communication of the award.

6. We, therefore, set aside the impugned order dated 24.07.1989. We

direct the Tribunal to reconsider the condonation of delay application of the

petitioner after examining the date of communication of the award, if any.

Once the factual position is established, the Tribunal would have to simply

compute the period of limitation from the date of such communication, if

any. Thereafter, the Tribunal shall pass an appropriate order on the

condonation of delay application in the appeal before it and proceed with the

matter in accordance with law.

7. All the parties are represented through counsel. Consequently, no

further notice of the proceedings before the Tribunal needs to be given. The

parties are directed to appear before the Tribunal in the first instance on

06.10.2009.