Gujarat High Court

Gujarat Maritime Board vs Param Industries Ltd on 31 July, 2024

Author: Sunita Agarwal

Bench: Sunita Agarwal

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       C/FA/2723/2009                         ORDER DATED: 31/07/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 2723 of 2009
                                  With
            CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2009
                                    In
                   R/FIRST APPEAL NO. 2723 of 2009
                                  With
                   R/FIRST APPEAL NO. 2724 of 2009
                                  With
                   CIVIL APPLICATION NO. 2 of 2009
                                    In
                   R/FIRST APPEAL NO. 2724 of 2009
==================================================
                       GUJARAT MARITIME BOARD
                                  Versus
                        PARAM INDUSTRIES LTD
==================================================
Appearance:
MR PR NANAVATI(508) for the Appellant(s) No. 1
MR NIRAV C THAKKAR(2206) for the Defendant(s) No. 1
==================================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
           AGARWAL
                              and
           HONOURABLE MR. JUSTICE PRANAV TRIVEDI

Date : 31/07/2024

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

Both the appeals are directed against the judgment and order

dated 12.02.2009 passed by the learned Additional District Judge,

Jamnagar and hence, the appeals are heard together and are being

decided by this common order.

2. Heard the learned counsel appearing for the appellant and

perused the record.








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3. Both these appeals under Section 37 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as the "Act, 1996")

have been filed challenging the order of rejection of the applications

under Section 34 of the Arbitration and Conciliation Act, 1996 dated

12.02.2009 passed by the Additional District Judge, Jamnagar in Civil

Misc. Application No. 417 of 2006 and Civil Misc. Application No.

418 of 2006 registered under Section 34 of the Act of 1996.

4. The applications have been rejected by reading of the

provisions of Section 34 (3) of the Act, 1996, holding it being beyond

limitation of 120 days, prescribed under the said provisions. There is

no dispute about the fact that the arbitral award was declared on

22.07.2006 and the same was received by the officer of the appellant

organization, namely, Gujarat Maritime Board, who was holding the

post of Assistant Traffic Manager on 22.07.2006 itself. It seems that

the award was placed before the Traffic Manager on 24.08.2006,

where-after he had decided to challenge the award. The application

under Section 34 of the Act, 1996 was filed on 18.12.2006.

4.1. It is sought to be submitted by learned advocate for the

appellant that the date of receipt of the award by the Traffic

Manager on 24.08.2006, would be the date when the limitation

prescribed in sub-section (3) of Section 34 of the Act, 1996 would

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commence. The submission is that the word "party" used in sub-

section (3) is to be interpreted in a manner that the concerned officer

of the appellant - organization, namely Gujarat Maritime Board, who

was equipped to take a decision to challenge the award would be the

'party', who had received the arbitral award. The Assistant Traffic

Manager, who had received the copy of the award on 22.07.2006 was

not in a position and did not have authorization to decide as to

whether the award is to be challenged or complied with. The result is

that the date of receipt of the copy of the award by the Traffic

Manager, the decision making authority of the appellant -

organization, would be the relevant date to compute the limitation of

three months as per sub-section (3) and further 30 days as per the

proviso of sub-section (3) to Section 34 of the Act, 1996. It is

submitted that with this perspective, if the limitation is computed

from the date of the receipt of the copy of the award by the Traffic

Manager, i.e. 24.08.2006, the application under Section 34 of the

Act, 1996 would be within limitation as prescribed in sub-section (3)

of Section 34 of the Act, 1996.

5. Reliance is placed on two decisions of the Hon'ble Apex Court

in the case of Union of India v. TECCO Trichy Engineers &

Contractors reported in (2005) 4 SCC 239 and in the case of

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Benarsi Krishna Committee & Ors., v. Karmyogi Shelters Pvt.

Ltd., reported in (2012) 9 SCC 496 to substantiate the said point.

5.1. This submission of the learned advocate for the appellant

suffers from inherent fallacy for the simple reason that the words

"party making application", "who had received the arbitral award",

cannot be stretched or interpreted to mean and include the officer of

the appellant organization, namely Gujarat Maritime Board, who is

the decision making authority. When the legislature provided the

date as a date of receipt of the award by the party making

application under Section 34 of the Act, 1996 in sub-section (3), it

would have meant the party who is contesting the award or

concerned with the award.

6. In the instant case, admittedly, the Assistant Traffic Manager,

who was officer of the appellant organization was contesting the

proceedings of the award and was well aware of the arbitral award

when he received the same on 22.07.2006. The arbitral award, as per

own contentions of the appellant, was placed before the Traffic

Manager, the decision making authority, after a period of one month,

on 24.08.2006, for which, no explanation is forthcoming.

6.1. Be that as it may, the party namely, the Gujarat Maritime

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Board, which was represented by its officer before the learned

Arbitrator and has received the copy of the arbitral award on

22.07.2006 was well aware of the making of the award. The date on

which the copy of the award has been received by the Assistant

Traffic Manager, i.e. 22.07.2006 would be the date from which the

limitation in filing the application under Section 34 of the Act,1996

would commence as per sub-section (3) of Section 34 of the Act of

1996.

6.2. Both the decisions relied by the learned counsel for the

appellant as noted herein-before, would not come to the rescue of

the appellant, inasmuch, as they are distinguishable in the facts and

circumstances before the Court in those matters. In the case of

Union of India (supra), though arbitration proceedings were being

contested by the Chief Engineer, who had signed on behalf of the

Union of India, who was directly concerned with the arbitration and

the subject matter of arbitration also related to the department of

Chief Engineer, the arbitral award was served on the General

Manager of the Railways. The Hon'ble Apex Court, therefore, found

that the service of the arbitral award on the General Manager of

Southern Railways, would not be service of the arbitral award upon

the party, within the meaning of sub-section (3) of Section 34 of the

Act, 1996.






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6.3. In another decision in the case of Benarsi Krishna Committee

& Ors. (supra), the arbitral award was served upon the advocate

appearing for the party and, as such, it was observed by the Hon'ble

Apex Court that the party within the meaning of Section 34 (3) of the

Act, 1996 as defined in Section 2(H) of the Act, 1996 would mean the

party himself and not his or agent or advocate empowered to act on

the basis of the Vakaltanama.

7. For the above discussion, the arguments made by the learned

advocate for the appellant to assail the decision of the learned Court

of rejection of the applications under Section 34 of the Act, 1996

being beyond the period of limitation prescribed in Section 34 (3) of

the Act of 1996, is liable to be turned down. The judgment and order