Sanjay Bhatia vs V.K.Prabhakar & Anr.
2009 Latest Caselaw 2265 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: May 12, 2009
                                                    Date of Order: May 26, 2009

+OMP 564/2006
%                                                           26.05.2009
    Sanjay Bhatia                                    ...Petitioner
    Through : Mr. Sandeep Aggarwal with Mr. K.A. Singh, Advocates

       Versus

       V.K. Prabhakar & Anr.                             ...Respondent
       Through: Mr. P.P Khurana, Sr. Adv. with Mr. Gaurav Tandon, Advocates


       JUSTICE SHIV NARAYAN DHINGRA

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

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       JUDGMENT

1. This petition under Section 34 of the Arbitration & Conciliation Act,

1996 (for short, "the Act) has been filed by the petitioner assailing an award

dated 10th May 2005. The respondent had taken preliminary objections

regarding limitation and has stated that the petition was not maintainable in

view of Section 34(3) of the Act, having been filed after the period of

limitation as envisaged under the Act. The arguments on this issue have been

heard from both parties.

2. The arbitrator in this case was appointed under Section 11(6) of the Act

by the order of this Court in Arbitration Petition No. 254 of 2001 dated 2nd

September 2004. In the order, the Court gave directions to both the parties to

appear before the Arbitrator on 12th October 2004. The arbitrator was also

given directions to dispose of the claim within four months of the first date of

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 1 Of 6 hearing. While claimant appeared before the Arbitrator on 12th October 2004,

the petitioner herein did not appear before the Arbitrator on the date fixed by

the Court and deliberately absented from appearing before the Arbitrator.

Arbitrator, however, entered into the reference on 12 th October 2004 and

issued notice to the petitioner on the address of the petitioner. The record

shows that the notice came back with the report that the petitioner had left

the given address of H-36, Sainik Farm. The respondent/claimant was

directed to furnish current address of the petitioner (although it was the duty

of the petitioner to inform his fresh address to the Arbitrator as well to the

respondent). The petitioner had not informed his changed address to the

respondent or to the Arbitrator, however, respondent traced out the address

of the petitioner and furnished the same to the Arbitrator whereby a fresh

notice was sent to the petitioner at G-207, 13th Lane, Sainik Farm, New Delhi.

Notice was sent by the Arbitrator by registered cover as well as by speed

post. While the registered cover came back with a report of refusal, the notice

through speed post was delivered at this address. The documents showing

delivery of notice upon petitioner are on record of the Arbitrator. The

petitioner even thereafter did not appear before the Arbitrator and the

Arbitrator was constrained to proceed ex parte and gave his award on 10th

May 2005. After giving his award, the learned arbitrator sent a notice of the

award to both the parties with a covering letter dated 10th May 2005 at the

same address. The award sent to the petitioner came back to the Arbitrator

unclaimed. The claimant thereafter filed execution of the award. In the

execution, the petitioner filed objections to execution under order 21 CPC and

also sought stay of the execution. Subsequently, the petitioner filed this

petition under Section 34 of the Act for setting aside the award.

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 2 Of 6

3. Counsel for the petitioner has submitted that the petitioner was

entitled to benefit of Section 14 of the Limitation Act and the time during

which the petitioner was prosecuting objections against execution should be

excluded while computing the time for filing the petition under Section 34 of

Arbitration and Conciliation Act, 1996. It is also submitted that the petitioner

learnt about the award in October 2005 when the Bailiff came to the premises

of the petitioner's mother for executing certain orders passed by the Court of

Additional District Judge. The petitioner engaged an advocate who filed an

application under Order 21 Rule 46 CPC for stay of execution. The petitioner

had been diligently prosecuting this application under Order 21 Rule 46.

When the petitioner learnt that a petition under Section 34 was required to be

filed, the counsel for the petitioner then filed a petition under Section 34 of

the Act challenging ex parte award and the application under Order 21 Rule

46 was withdrawn on 25th February 2006. It is stated that delay in filing the

application under Section 34 was because the advocates were on strike and

the advocate of the petitioner did not file an application for condonation of

delay. It is submitted that period between October, 2005 to February, 2006

be not counted under Section 14 of Limitation Act.

4. The counsel for the respondent argued that the address given in the

execution petition was same at which notice of award and proceedings was

sent to petitioner. Petitioner was very well aware of the passing of award. The

period of limitation was to be counted from 16th May 2005.In October 2005,

the period of limitation had already expired so no benefit of Section 14 of the

Limitation Act can be given.

5. The petitioner, however, submitted that the address of the petitioner

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 3 Of 6 furnished by the respondent to the arbitrator G-207, Sainik Farm was the

adjoining plot and the execution was taken at G-206 and not to G-207. There

was no service of the arbitration proceedings or the awrad on the petitioner

and therefore the court should count the time for filing the objections from

October 2005 and if benefit of Section 14 of the Limitation Act was given,

objections were within period of limitation.

6. I consider that this plea of the petitioner must fail as it does not match

with the facts disclosed from the record. The record shows that the petitioner

was directed by this Court to appear before the Arbitrator on 12th October

2004. The petitioner deliberately did not appear before the Arbitrator. The

record also shows that the petitioner changed his address and did not inform

the arbitrator or the Court or the respondent. It was the duty of the petitioner

to inform about change of his address. However, the respondent found out

address of the petitioner and gave it to the arbitrator. It is not the case of the

petitioner that the petitioner had not lived at his mother's address which he

claimed to be G-206 instead of G-207. The service report of speed post not

only shows delivery of the notice issued at the petitioner's house but also

records the telephone number of the petitioner's house as 26527733 at the

relevant time. It is not the case of the petitioner that this telephone number

recorded in the delivery report was a wrong telephone number. It is apparent

that the petitioner had first deliberately refused to appear before the

Arbitrator despite directions of this Court and then refused to receive the

registered cooer and then did not appear before the Arbitrator despite service

of second notice through speed post. In such a circumstances, I consider that

the date of publication of the award has to be considered the effective date

for counting the period of limitation. No party can be given liberty to take

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 4 Of 6 benefit of his own wrongs. The petitioner in this case delayed the proceedings

prior to appointment of Arbitrator at every stage. The appointment of

Arbitrator was done by this Court when it was found that petitioner was bent

upon delaying the matter and he was directed to appear before arbitrator on

a date fixed by this Court. He not only did not appear before the Arbitrator in

defiance of the order but evaded the summons and notice sent by the

Arbitrator. Even when notice was served, he adopted malafide tactics of

claiming the address to be a wrong or having no notice received. It is

petitioner's own case that the Bailiff of the Court with execution orders at G-

207 reached the petitioner's mother house. The court can take judicial notice

of the fact that the Bailiff is authorized to execute the decree only at the

address given and he would not have reached G-206 instead of G-207 for

execution of the decree. The plea taken by the petitioner that that G-207 was

not the correct address, therefore, cannot be believed. The time for counting

the period of limitation would be from the date of notice of the award. The

award was published on 10th May 2005 and the copy of the award was sent to

the petitioner. The postman's report that the postman visited the petitioner's

house on 12th May, 2005, 13th May 2005, 14th May 2005, 16th May 2005

continuously and he returned the letter on 17th May 2005. Thus, the date of

deemed notice to the petitioner is to be taken as 16th May 2005. The

objections against the award could have been filed within three months i.e.

by 16th August 2005 and even with an application for condonation of delay by

16th September 2005. The objections in this case have been filed by the

petitioner on 14th March 2006. The objections therefore are miserably barred

by limitation. The benefit of Section 14 would have been available to the

petitioner if the petitioner had been prosecuting another remedy diligently

within the period of limitation. When the petitioner filed objections to the

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 5 Of 6 execution of the award, the time for filing the objections under Section 34 of

the Act had already been expired.

7. I, therefore, consider that this petition under Section 34 is not

entertainable being barred by limitation as provided under Section 34(3) of

the Arbitration & Conciliation Act, 1996. The petition is hereby dismissed,

May 26, 2009 SHIV NARAYAN DHINGRA J.

rd

OMP 564 of 2006 Sanjay Bhatia v V.K. Prabhakar & Anr. Page 6 Of 6