Karmyogi Shelters Pvt. Ltd. vs Benarsi Krishna Committee & Ors
2010 Latest Caselaw 2366 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) 578/2009

      KARMYOGI SHELTERS PVT. LTD.         .... Appellant
                   Through Mr Sudhir Nandrajog, Sr Adv.
                   with Mr Ashwath Sitaraman and Mr
                   Ashutosh Shahi, Advs.

                   versus

      BENARSI KRISHNA COMMITTEE & ORS. ... Respondent
                   Through Mr N.N.Aggarwal and
                   Mr Rohit Gandhi, Advs,


                              Date of Hearing: April 12, 2010

                              Date of Decision: May 04, 2010

       CORAM:
       HON'BLE MR. JUSTICE VIKRAMAJIT SEN
       HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether Reporters of local papers may be No
         allowed to see the Judgment?
      2. To be referred to the Reporter or not?   Yes
      3. Whether the Judgment should be reported Yes
         In the Digest?


VIKRAMAJIT SEN, J.

This Appeal assails the Order of the Learned Single

Judge passed on August 28, 2009 holding that the signed copy

of the Award had been delivered to the Petitioner on 13th May,

2009, as required by Section 31(5) and Section 34(3) of the

Arbitration and Conciliation Act,1996 (hereinafter referred to as

the "A&C Act" ). It had further been held that inasmuch as the

Petition under Section 34 of the "A&C Act" had been filed on

3.2.2005, it was barred by time and hence liable to be

dismissed. It is not in the pail of controversy that the Award

had been made available to the counsel for the Appellant, and

had not been directly served on the Appellant.

A detailed discussion is not called for since the matter is

covered on all fours by a Judgment of a Division Bench of this

Court titled National Projects Constructions Corporation

Limited -vs- Bundela Bandhu Constructions Company, AIR

2007 Delhi 202, 139 (2007) DLT 676. No further controversy

remains in view of the pronouncement in Union of India -vs-

Tecco Trechy Engineers & Contractors, (2005) 4 SCC 239,

which has been duly considered and applied in Bundela

Bandhu. Both these cases have been cited by the Appellant

before the Learned Single Judge, who has articulated the view

that the ratio cannot be made applicable to Private Limited

Companies. In Bundela Bandhu, the Division Bench had kept

in prospective similar provisions as contained in Order XXXVII

of the Code of Civil Procedure, 1908 and Section 25B of the

Delhi Rent Control Act, 1958. Noting those Provisions

especially concerning the time period, it had been held that

service of an Award should be made on the concerned party. To

this, we may add the pronouncement which have withstood

almost one century of scrutiny namely Nazir Ahmed -vs- King

Emperor, AIR 1936 PL 253, which is to the effect that if an

action has to be taken in a particular manner it must be in that

manner only, else will be held not to have been done at all.

Wisdom of this pronouncement is manifestly clear in the facts

presented in the present case. The same abiding reasoning in

respect of strict compliance with procedural requirement of a

statute warranting strict interpretation is applied by the Hon‟ble

Supreme Court in Ramchandra Keshav Adke -vs- Govind Joti

Chavre (1975) 1 SCC 915; Shiv Bahadur Singh -vs- State of

Uttar Pradesh, AIR 1954 SC 322 and Deep Chand -vs- State of

Rajasthan, AIR 1961 SC 1527. So much judicial time has been

wasted in entertaining arguments which would have been

unnecessary, had the Award been served on the party

concerned, namely, the Appellant. In view of Section 2(h) of the

"A&C Act", there is no justifiable reason to depart from

succinct and precise definition of the word "party", which

means a party to an arbitration agreement. Facially, these

words cannot take within their sweep an „agent‟ of the party

which is incompetent to take the requisite action envisaged

under the statute. Learned counsel for the Respondent has

drawn our attention to Nilkantha Sidramappa Ningashetti -vs-

Kashinath Somanna Ningashetti, AIR 1962

SC 666, which dealt with Section 14(2) of the Arbitration Act,

1940. The reasoning and views contained therein cannot be

extrapolated to the "A&C Act" inasmuch as the condonation of

delay in filing the Objections filed under the earlier and

repealed Act could be prayed for before the Court on an open

end basis instead of a precise period of 30 days prescribed

under the "A&C Act". For the same reason, East India Hotels

Ltd. -vs- Agra Development Authority, (2001) 4 SCC 175 and

Secretary to Govt. of Karnataka -vs- V.Harishbabu, (1996) 5

SCC 400 are of no assistance in the present case. We are

unable to appreciate the manner in which Amit Malik - vs-

Kamlesh Malik, 129 (2006) DLT 510, can advance the case of

the Respondent. The Division Bench had declined to accept the

hypotechnical objection namely that the copy of the Award

actually served on the Objector was not of the Award which was

registered. We are in respectful agreement with that view

which does not in any way require us to depart from what has

been held in Bundela Bandhu. Reliance has also been placed

by the Appellant on Union of India -vs- Popular Construction,

(2001) 8 SCC 470, which is a decision of a Two-Judge Bench.

Inasmuch as the decision in Techo Trechy is of a Three-Judge

Bench, it will have to be followed. Moreover, Popular

Construction in substance deals with limitation for filing

Objections to an Award and the departure from the earlier 1940

Act which allowed delay to be condoned. The conclusion voiced

by the Division Bench in D.M. Jawahar Merican -vs- Engineers

India Ltd., 2009 (4) AD Delhi 161, falls in the mould of Amit

Malik and is not germane to the issue before us, namely, the

need to serve the „party‟ as defined in Section 2(h) of the "A&C

Act". M.Anasuya Devi -vs- M.Manik Reddy, (2003) 8 SCC 565,

concerns stamping of Arbitration Awards and is of no relevance

to the dispute before us.

In these circumstances, the view of the Learned

Single Judge that service of the Award on the Advocate of the

Appellant was sufficient compliance with the statutory necessity

postulated by the "A&C Act" cannot be sustained and is set

aside. The result is that the Objections would have to be heard

and decided on merits. The matter is accordingly remanded to

the Learned Single Judge for this purpose. There shall be no

Order as to Costs.

VIKRAMAJIT SEN,J

A.K. PATHAK, J MAY 04, 2010 nt