Shri Munavar Khan vs M/S Magma Leasing Ltd.
2011 Latest Caselaw 4912 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.26/2005

%                                                    30th September, 2011

SHRI MUNAVAR KHAN                                         ...... Appellant
                                   Through:       Mr.  Devendra       Nautiyal,
                                                  Advocate.
                          VERSUS

M/S MAGMA LEASING LTD.                                     ...... Respondent
                                   Through:       None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the 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?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this First Appeal under Section

37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as

'the Act') is to the impugned order of the Court below dated 21.7.2004

which dismissed the objections under Section 34 of the Act as being

barred by time.

2.            Though the impugned order is not too detailed and refers to

the fact that Award was passed on 10.7.2001 and the objections were

filed on 19.9.2003 and therefore are barred by time and no application

can lie under Section 5 of the Limitation Act, 1963 though the same was

said to be filed. A reference is made to the decision of the Supreme


FAO No.26/2005                                                   Page 1 of 3
 Court in the case of Union of India Vs. Popular Construction Ltd.

2001 (8) SCC 470 to hold that there is no provision for condonation of

delay qua objections under Section 34, though the Court below has

wrongly given the citation as 2001 (7) SCC 354.

3.           To satisfy myself as to whether the objections are filed

within time or not, I have gone through the original arbitration record.

The Award in this case was passed against the appellant/principal

borrower on 10.7.2001 for an amount of Rs.81,749.77 with interest. As

per the arbitration record, a copy of this Award was sent to the

appellant by registered post on 25.7.2001 and as per the report of the

postal department there is an endorsement of refusal to receive this

notice on 31.7.2001.    I may note that the appellant has addressed

letters to the Arbitrator in the arbitration proceedings when earlier

notices by the Arbitrator were sent to the appellant at the address to

which the Award was sent vide registered post on 25.7.2001.

Therefore, in terms of Section 3 of the Act, once the Award has been

sent at the correct address, the Award is deemed to be served on the

appellant, more so in the facts of the case where there is an

endorsement of refusal to receive the registered post article on

31.7.2001.

4.           Once the Award is deemed to be served on 31.7.2001, the

objections ought to have been filed under Section 34 of the Act on or

before 30.11.2001, however admittedly, the objections were filed only

on 19.9.2003 and which are thus hopelessly barred by limitation. I take

FAO No.26/2005                                             Page 2 of 3
 note of the malafides of the appellant in alleging that the Arbitrator,

who is a retired Judge of this Court, has manipulated in sending of the

Award and which is so stated in the application under Section 5 for

condonation of delay, and though there are none in view of the

aforesaid facts. Such sharp practices need to be deprecated in view of

the endorsement of the postal department with respect to the appellant

refusing to receive the copy of the Award on 31.7.2001.

5.          In view of the above, there is no merit in the appeal, which

is accordingly dismissed, leaving the parties to bear their own costs.




SEPTEMBER 30, 2011                              VALMIKI J. MEHTA, J.

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