Kanwaljeet Kaur Bedi vs Aditya Birla Retail Ltd. & Anr.
2013 Latest Caselaw 1051 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment Reserved on: February 27, 2013
                                 Judgment delivered on: March 4, 2013

+                           OMP No.515/2011

       KANWALJEET KAUR BEDI                      ..... Petitioner
                   Through  Mr.A.P.S. Ahluwalia, Sr. Adv. with
                            Mr.S.S. Ahluwalia and Mr.Rohan
                            Ahuja, Advs.


                   versus

       ADITYA BIRLA RETAIL LTD. & ANR.          ..... Respondents
                     Through  Mr.Sanjeev Anand, Adv. with
                              Ms.Kajal Chandra and Mr.Abhas
                              Kumar, Advs.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

I.A.No.10836/2011 (condonation of delay)

1. The petitioner filed the petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 23 rd March, 2010 passed by Sh.P.L. Joshi, the sole Arbitrator in the matter. Along with the objections, the petitioner filed an application under Section 34(3) read with Section 151 CPC for condonation of delay of about 11 months in filing the petition for setting aside the Award dated 23rd March, 2010.

2. By this order I propose to decide the application for condonation of delay, being I.A.No.10836/2011. The petitioner has specifically made the statement in the application that the petitioner never received any notice of passing of the Award from the learned Arbitrator. The petitioner came to

know about the same by way of notice of execution of 29 th May, 2011 and thereafter the objections were filed. As far as limitation for filing the application for setting aside the Award is concerned, according to the petitioner, time has still not lapsed as signed copy of the Award has not been received by the petitioner.

3. The respondent has opposed the prayer of the application filed by the petitioner. Along with the reply, the respondent filed an affidavit of Mrs.Arathi Shivkumar who deposed that subsequent to the making of the Award, the learned Arbitrator handed over the original signed Award to her for sending the same to the petitioner. In terms of the said directions of the learned Arbitrator on 29th March, 2010, she sent/posted original signed Award to the petitioner and its copy to her Advocate Sh.Sanjay Agnihotri through courier along with letter dated 29th March, 2010. The copies of the letter, courier receipts as well as print out from the website of the courier company giving the status of the service report have been attached along with the affidavit which show that the said letters were delivered to the petitioner and her Advocate.

4. Mr.Sanjeev Anand, learned counsel appearing on behalf of the respondent, stated that the petitioner has made an incorrect statement before the Court that the petitioner has not received the signed copy of the Award. However, it is not disputed by him that the sole Arbitrator did not send the signed copy of the Award or the copy of the award to the petitioner directly either by hand or by post. He referred to letter dated 16th February, 2009 issued by the Arbitrator in which it is informed by him to the parties that he did not have his own secretarial staff to communicate the proceedings to the parties and he left the administrative and clerical work relating to the communication of the proceedings to the parties but limited to dispatch of

letters, communication to parties or any other documents under his express directions against the charges to be reimbursed by him. Lastly, it was argued by Mr. Anand that since petitioner and her counsel have denied having received the signed copy of the Award under the of letter dated 29th March, 2010, it was their duty to disclose the Court about the receiving of letter and its contents received by them.

5. Mr.A.P.S. Ahluwalia, learned Senior counsel appearing on behalf of the petitioner, argued that mere sending of the alleged letter by the respondent to the petitioner is not sufficient under the compliance of Section 31(5) of the Arbitration and Conciliation Act, 1996 and it does not prove that by that letter the petitioner had received the signed copy of Award. Even otherwise, the said letter dated 29th March, 2010 to the petitioner was sent through respondent's legal department and the same neither contained the signature of the arbitrator nor the same was sent on behalf of the arbitrator as contemplated under the Act. The receipts as relied upon by the respondent are not conclusive evidence about the contents i.e. signed copy of the Award.

6. I have considered the rival submissions of the parties on this aspect. It is settled proposition of law that wherever a prescribed period of time is laid down by a statute, it is to be strictly complied with before adverse orders are passed. In the present case, it is undisputed fact that the Arbitrator has not dispatched the signed copy/copy of the award to the petitioner rather in a letter issued by him on 29 th August, 2011 to the Registrar General of this Court along with the Arbitral Record in sub para 2, he admitted as under:

"Please note that the original award is not part of these records since it was been handed over the Claimant on its

request for the same, for execution. Since the Claimant has reported that the original award has been filed for execution in Delhi, it has no copy thereof. I have therefore directed the Claimant, that if needed, to arrange for submission of the copy of award by its official in Delhi in connection with the proceedings under reference. I hope the official of Claimant in Delhi will take expeditious steps for availing certified copy of the award produced in execution proceedings and submit the same in your office in connection with proceedings under reference."

7. The petitioner has referred to the recent judgments of the Supreme Court in the case of The State of Maharashtra & Ors. v. M/s. Ark Builders Pvt. Ltd., 2011 (2) Supreme 214 and Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt. Ltd., 2012 (7) Supreme 140.

8. In both the cases, the question before the court was whether the period of limitation for making an application under Section 34 of the Act for setting aside an arbitration award is to be reckoned from the date a copy of the award is received by the objector by any means and from any source, or it would start running from the date a signed copy of the award is delivered to him by the arbitrator? This was the question decided in both the matters. In the case of The State of Maharashtra & Ors. v. M/s. Ark Builders Pvt. Ltd. (supra), it was held that "Section 31(1) obliges the members of the arbitral tribunal/arbitrator to make the award in writing and to sign it and sub-section (5) then mandates that a signed copy of the award would be delivered to each party. A signed copy of the award would normally be delivered to the party by the arbitrator himself. The High Court clearly overlooked that what was required by law was the delivery of a copy of the award signed by the members of the arbitral tribunal/arbitrator and not any copy of the award.

9. In Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt. Ltd. (supra), the facts were that the matter was carried out to the Division Bench of the High Court by the respondent by way of an appeal, being FAO (OS) No.578/2009, who accepted the appeal and held that the service of the award had not been properly effected. The Division Bench remanded the matter to the Single Judge to decide the objections on the award on merits, upon holding that for compliance with the provisions of Section 31(5) of the 1996 Act, a copy of the award had to be delivered to the party itself. The service to the counsel did not amount to service within the meaning of Section 31(5) of the aforesaid Act. In para 16 of the judgment, the Hon'ble Supreme Court observed that the said provision clearly indicates that a signed copy of the Award has to be delivered to the party. When a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act.

10. In the present case, it is undisputed fact that the sole arbitrator has not sent the signed copy of the award to the petitioner. He has also admitted that even copy of the award was not sent. In his letter dated 29 th August, 2011 he has admitted that the original award was handed over to the respondent as per its request for the purpose of filing the execution which was in fact filed by the respondent. In the letter, it was neither alleged by him that he has at any point of time sent copy to the petitioner. The submission of the respondent is immaterial even a letter dated 29 th March, 2010 was sent to the petitioner and to her Advocate as the petitioner is denying having received the signed copy. But, it cannot be presumed that the said letter contained the signed copy of the award. In the letter dated 29th March, 2010 the word "signed" is not mentioned. Even otherwise, as per the mandate of Section 31(5) a signed copy of the award has to be

delivered to each party by the Arbitrator himself in view of two decisions of the Supreme Court referred by the petitioner's counsel on this aspect. In the present case, neither the said copy was sent by him or personally delivered by him to the petitioner, therefore, it would not amount to compliance within the provision of Section 31(5) of the Act. In view of the peculiar facts and circumstances of the present case, the present application is allowed. The delay sought by the petitioner is condoned. The same is disposed of. OMP No.515/2011 List for preliminary hearing on 22nd March, 2013.

(MANMOHAN SINGH) JUDGE MARCH 4, 2013/jk