M/S Shiva Construction vs Hindustan Petroleum Corporation ...
2009 Latest Caselaw 3597 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Date of Reserve: September 01, 2009
                             Date of Order: September 07, 2009
+ OMP 139/2009
%                                              07.09.2009
    M/S. SHIVA CONSTRUCTION                    .... Petitioner
              Through : Mr. Rahul Sharma, Adv.

         Versus


         HINDUSTAN PERTROLEUM CONRPORATION Ltd.
                                                 ... Respondent
                 Through: Mr. Anil Kumar Mishra with
                          Ms. Rashmi Sinha, Advs. for R.1

         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. In this petition under Section 34 respondent has raised an

issue that the petition was barred by limitation. The arguments have

been heard only on this limited issue. The contention of the petitioner

is that the petitioner was not informed about the passing of the award

and no copy of the award as required under Section 31(5) of the

Arbitration and Conciliation Act 1996 was sent by the Arbitrator to the

petitioner and till 28th April, 2008, the petitioner was unaware of the

passing of the impugned award. The petitioner learnt about the

passing of the award only in reply to its RTI application when the

petitioner received a letter along with copy of the award dated 18th

July, 2007 on 28th April, 2008. It is submitted by the petitioner that the

petition has been filed within a period prescribed under Section 34(3)

counting it from 28th April, 2008 and is within limitation.

2. The respondent has submitted that the award was passed

by the Arbitrator on 18th July, 2007 and copy of award was sent to both

the parties by the Arbitrator. He submitted the documents of the

petitioner itself show that the petitioner was very much aware of the

award and plea of the petitioner that he learnt about the award only on

28th April, 2008 was false. The respondent pointed out to a letter

dated 5th January, 2008 written by attorney of the petitioner which

reads as under:

"Dear Sir,

You have not furnished the documents to Anguri Devi, the Partner of the firm, as per the requirements of the RTI Act, and you have written in the letter that you have passed an order on 18-07-2007. It is not true that you have sent copy of the arbitration proceedings.

The role of the arbitration should not biased/partial towards any one party. But it has been observed that you have been acting with partiality right from the beginning and also you have been acting controversially. Since you are in HPCL, you have been favouring HPCL which is wrong as per arbitration rules. You are once again requested to provide me a copy of the order immediately so that I can initiate subsequent legal action on this. You will be held responsible for any kind of delay.

Thanking you,

BL Bansal"

3. The petitioner had made query about the award on 7th

December, 2007 and in response to that query vide letter dated 28 th

December, 2007, the petitioner was informed that copy of the award

has been sent by mail to the general power of attorney, Sh.Brij Lal

Bansal by the Arbitrator under covering letter dated 18th July, 2007. It

is after this letter that the petitioner had written a letter dated 5th

January, 2008 to the respondent, corporation. The respondent,

corporation again replied to the petitioner that the learned Arbitrator

had sent the award to the petitioner on 18th July, 2007, but under Right

to Information Act another copy of the award was being sent to the

petitioner.

4. Counsel for the respondent argued that the petitioner

deliberately had been delaying the matter. The award was sent to the

petitioner, but he did not prefer objections and rather resorted to Right

to Information Act and obtained another copy of the award under Right

to Information Act and thereafter preferred objections. He submitted

that RTI application seemed to be a plan of the petitioner because the

petitioner did not file objections within time and in order to cover up

this delay, he took resort to Right to Information Act.

5. Counsel for the petitioner, on the other hand, submitted

that the petitioner was more interested in early passing of the award

and approached the High Court for change of the Arbitrator since the

Arbitrator was delaying the matter. An order was passed by this Court

on 24th October, 2007 whereby this Court refused to change the

Arbitrator and gave directions that the Arbitrator shall continue with

the arbitration proceedings without further delay. This order was

passed on 24th October, 2007 in presence of both the parties and in

case, the respondent had been aware of the passing of award by the

Arbitrator on 18th July, 2007, the respondent would have informed the

Court about passing of award. The very fact that this Court was not

informed about passing of the award shows that the petitioner and the

respondent both were not aware of the passing of the award.

6. Section 34(3) provides that the application for setting aside

an award can be made within 3 months from the date of which the

party had received the arbitral award. So the Court has to see whether

the petitioner in this case had received the arbitral award as is stated

by the learned Arbitrator. For this purpose record of the Arbitrator was

called and seen. A perusal of record would show that the stamp paper

on which the award has been typed was purchased from the treasury

on 3rd July, 2007 and was issued by the Stamp Vendor on 12th July,

2007. It is obvious that the award is not a pre-dated award. The

award is dated 18th July, 2007 and on the same day, the sole Arbitrator

posted the award to both the parties, i.e., the petitioner at its address

of 88, Jagriti Enclave, Delhi and to the respondent at its address of

Laxmi Nagar, Delhi. The Arbitrator had posted the award through

courier service DTDC on 18th July, 2007 itself and the courier receipt

has been pasted on record showing proof of dispatch. However, a

perusal of record would show that all earlier correspondence between

the parties and the Arbitrator is only through registered post with

acknowledgement due. There is no proof on record to show that the

courier was delivered to the respondent. The address in the courier

receipt is also not complete and only Shiva Construction, Delhi-92 has

been mentioned. The earlier courier receipt gives complete address of

the petitioner. Under these circumstances, a doubt arises about the

proper service of this award on the petitioner. This fact also fortified

from the order passed by the Court on 23rd October, 2007. If either of

the parties had received the award it would have been brought to the

notice of the Court that the award has already been passed. Counsel

for the respondent also did not inform the Court that the award had

been passed by the Arbitrator. It is quite possible that the petitioner

had not received the award due to incomplete address mentioned on

the envelop or due to some other reason. Though, the petitioner came

to know about the passing of the award in response to RTI application

moved by the petitioner sometime in December but the certified copy

of award was received by the petitioner only on 28th April, 2008. I

therefore consider that the period of limitation will have to be counted

form 28th April, 2008 and not from 18th July, 2007. If the period for

filing of objections by the petitioner is counted from 28th April, 2008,

the objections filed by the petitioner are within limitation. It is

therefore held that objections have been filed within period of

limitation.

7. List this matter now for arguments on maintainability of

the objections on merits on 25th November, 2009.

September 07, 2009                SHIV NARAYAN DHINGRA J.
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