Rajinder Kumar Gupta vs M/S Escorts Securities Ltd.
2009 Latest Caselaw 3569 Del

           * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Date of Reserve: 10.8.2009
                                               Date of Order: 4th September, 2009

OMP No. 197/2005
%                                                                      04.09.2009

      Rajinder Kumar Gupta                        ... Petitioner
                     Through: Mr. Pankaj Singh, Advocate &
                     Petitioner-in-person

             Versus


      M/s Escorts Securities Ltd.                 ... Respondents
                     Through: Mr. Ajay Talesara, Advocate


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

By this application/petition under Section 34 of the Arbitration &

Conciliation Act, 1996 the petitioner has filed objection against award dated

13.03.2003 and prayed for setting aside the award. A prayer is also made for

setting aside the interim order dated 13.10.2001 passed by the Sole Arbitrator

whereby he dismissed an application made by the petitioner for recusing himself

and also rejected the prayer that the arbitration agreement entered into between

the parties was not a valid agreement.

2. The award is dated 13.03.2003, the objections have been filed

against the award on 25.5.2005. On the face of it, the objections seem to be

barred by limitation however, it is stated by the petitioner in the objection petition

that he learnt about passing of award on 5.11.2004 when he received an

Execution Petition filed by the respondent for execution of the award and along

with Execution petition he received a photocopy of the award. The petitioner

thereafter waited for receiving a certified/signed copy of the award in terms of

Section 31 of the Arbitration Act. When the same was not received, he made a

request to the Arbitrator on 1.2.2005, 3.2.2005 for sending certified copy and also

sent reminders dated 2.3.2005 and 4.4.2005 to the Arbitrator so that, he could

challenge the award. Since he did not receive the certified copy of the award

from the Arbitrator, he filed objections on the basis of photocopy received by him

along with Execution Petition.

3. After filing of objections by the petitioner a notice of the objection

petition was sent and directions were issued to the Arbitrator to file record of the

arbitration. The notice came back with a report that Arbitrator Mr. Sushil

Chauhan had expired on 21.2.2005. Thereafter, a notice was sent to wife of Mr.

Sushil Chauhan to place on record the record of arbitration if she was having the

same. Wife of Mr. Sushil Chauhan wrote a letter to the Registry that her

husband had expired on 21.2.2005 and she was not in possession of arbitration

file. After receipt of notice from the Court she contacted the chamber of her

husband and the clerk Mr. Azad Singh who had worked with her husband

handed over some postal record, which related to the subject matter. The clerk

informed her that her husband had called him at his residence and handed him

over the signed arbitration awards in respect of arbitration proceedings, for

dispatching to the parties and the postal record of dispatching the award was

lying with him (Clerk). She submitted that during his last days her husband was

not going to Chamber due to ill health. She along with her letter filed the postal

record as handed over to her by the clerk of posting the award to the parties.

The postal record consists of two postal receipts and two postal A.D. Cards one

in the name of the petitioner and another in the name of the respondent. A

perusal of A.D. card would show that article was duly received. It bears the

signatures of petitioner with a date of 29.3.2003.

4. Despite filing of these documents by wife of the Arbitrator on

record and the AD card showing that the award was posted to the petitioner and

was received by him, the petitioner has not explained why he did not file

objections within time. The petitioner's plea that he did not receive the award is

unbelievable. It is petitioner's own contention that he raised objections against

the Arbitrator's competence of entering into reference and after the Arbitrator

passed interim order dated 13.10.2001 he attended only few proceedings and

thereafter he refused to participate in the arbitration proceedings after 1.6.2002.

The last arbitration hearing attended by him was of 1.6.2002. The petitioner

stated that thereafter he did not receive any communication with regard to the

ongoing proceedings and therefore he was not aware of the conclusions of the

proceedings.

The statement of the petitioner that he was not aware of the award

does not inspire confidence. The Arbitrator was having his office in Delhi the

petitioner who had received notice of the Execution petition on 5.11.2004, if had

been interested in obtaining a signed copy of award as alleged could have gone

to the Arbitrator's office. The petitioner did not go to the Arbitrator's office to

make any inquiry soon after 5.11.2004. His contention that he kept waiting for

certified copy also is a figment of imagination. Award was of 13.3.2003. He was

facing execution of the award. If the award had not been in his knowledge or he

had not received copy of award sent by Arbitrator, he would have immediately

rushed to file objections on the basis of copy of award sent to him by court in

Execution Petition. The petitioner has filed the present objections after more

than two years of passing of the award. The postal receipt/A.D. card filed on

record by the wife of the Arbitrator as retrieved from the office of the Arbitrator

shows that the award was received by the petitioner on 29 th march, 2003.

5. It is petitioner's own contention that he received copy of the award

along with Execution on 5.11.2004, he was at liberty to file objections on the

basis of this copy of the award which he received along with the Execution as he

filed now. If he would have been sincere he would have filed objection

immediately after 5.11.2004 and would not have waited so long. He allegedly

wrote first letter to the Arbitrator on 1.2.2005. Even this letter is written by him

after expiry of 90 days of receiving the copy of the award through the Court in

Execution Petition. He filed these objections on 25.5.2005 i.e. much after the

expiry of 90 days even from 5.11.2004.

6. I find no force in the plea of the petitioner that he could not file

objections because he was not having certified copy of the award. The

objections are liable to be dismissed on the ground being barred under Section

34(3) of the Arbitration & Conciliation Act, 1996 having been filed beyond the

period prescribed from the date of receipt of the award. The petition is hereby

dismissed being barred by limitation.

September 04, 2009                               SHIV NARAYAN DHINGRA, J.
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