National Highways Authority Of ... vs Sri U.K Monu
2021 Latest Caselaw 6341 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF DECEMBER, 2021

                       PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

     MISCELLANEOUS FIRST APPEAL No.6780/2021 (AA)
                           C/W
     MISCELLANEOUS FIRST APPEAL No.6781/2021 (AA)
     MISCELLANEOUS FIRST APPEAL No.6782/2021 (AA)


IN M.F.A No.6780/2021 (AA)


BETWEEN:

NATIONAL HIGHWAYS AUTHORITY OF INDIA
PROJECT IMPLEMENTATION UNIT
DOOR NO.3-29, BETHEL
THARETHOTA, NEAR PUMPWELL
(NH-66) MANGALORE - 575005
REP. BY ITS PROJECT
DIRECTOR.
                                         ...APPELLANT
(BY SRI SREENATH V.K, ADVOCATE)

AND:

1.     SRI U.K MONU
       AGED BY MAJOR
       S/O LATE KOJABB A
                         -2-


       UNIVERSITY ROAD
       KOTEKAR VILLAGE
       MANGALORE - 575146

2.     THE ARBITRATOR & DEPUTY
       COMMISSIONR
       D.K DISTRICT
       MANGALORE - 575001.
                                   ...RESPONDENTS

                      ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 37(1)(C) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING TO AGAINST THE
ORDER DATED 04.11.2020 PASSED IN A.S.NO.84/2019 ON
THE FILE OF THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU,
DISMISSING THE ARBITRATION APPLICATION FILED
UNDER SECTION 34(2) OF THE ARBITRATION AND
CONCILIATION ACT.

IN M.F.A No.6781/2021 (AA)


BETWEEN:

NATIONAL HIGHWAYS AUTHORITY OF INDIA
PROJECT IMPLEMENTATION UNIT
DOOR NO.3-29, BETHEL
THARETHOTA, NEAR PUMPWELL
(NH-66) MANGALORE - 575005
REP. BY ITS PROJECT DIRECTOR.
                                       ...APPELLANT
(BY SRI SREENATH V.K, ADVOCATE)

AND:

1.     SMT. SAFIA
       AGED BY MAJOR
                         -3-


     W/O AHAMED BAWA
     AGE NOT KNOWN
     A1-NOOR HOUSE
     PANJALA
     TALAPADY POST AND VILLAGE
     MANGALORE - 575023
     DAKSHIN KANNADA DISTRICT.

2.   THE ARBITRATOR & DEPUTY
     COMMISSIONR
     D.K DISTRICT
     MANGALORE - 575001.
                                  ...RESPONDENTS
                      ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 37(1)(C) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING TO AGAINST THE
JUDGMENT AND DECREE DATED 31.08.2020 PASSED IN
A.S.NO.81/2019 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA,
MANGALURU,     DISMISSING     THE   ARBITRATION
APPLICATION FILED UNDER SECTION 34(2) OF THE
ARBITRATION AND CONCILIATION ACT.

IN M.F.A No.6782/2021 (AA)


BETWEEN:

NATIONAL HIGHWAYS AUTHORITY OF INDIA
PROJECT IMPLEMENTATION UNIT
DOOR NO.3-29, BETHEL
THARETHOTA, NEAR PUMPWELL
(NH-66) MANGALORE - 575005
REP. BY ITS PROJECT
DIRECTOR.
                                       ...APPELLANT
(BY SRI SREENATH V.K, ADVOCATE)
                               -4-


AND:

1.     SMT. UMAYA BANU
       W/O SHAMSHIR SOWKATH
       UNIVERSITY ROAD
       KOTEKAR VILLAGE
       MANGALURU.

2.     THE ARBITRATOR & DEPUTY
       COMMISSIONR
       D.K DISTRICT
       MANGALORE - 575001.
                                            ...RESPONDENTS
                       ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 37(1)(C) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING TO AGAINST THE
JUDGMENT AND DECREE DATED 30.09.2020 PASSED IN
A.S.NO.83/2019 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA,
MANGALURU,      DISMISSING     THE     ARBITRATION
APPLICATION FILED UNDER SECTION 34(2) OF THE
ARBITRATION AND CONCILIATION ACT. 1996, READ WITH
ORDER 7 RULE 1 AND 2 OF CPC BY PLAINTIFF.


     THESE MISCELLANEOUS FIRST APPEALS COMING ON
FOR ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED
THE FOLLOWING:

                     JUDGMENT

All these appeals are filed by the appellant-

National Highways Authority of India (hereinafter

referred to as 'NHAI' for brevity) against the

impugned judgments and decrees dated 04.11.2020,

31.08.2020 and 30.09.2020 made in Arbitration Suit

No.84/2019, 81/2019 and 83/2019 respectively on

the file of the IV Additional District Judge, Dakshina

Kannada, Mangaluru, dismissing the arbitral suits filed

by the NHAI on the ground of limitation.

2. Brief facts of the case are that, the NHAI

has issued a Preliminary Notification on 18.12.2009

for acquiring lands of respondent No.1 under Section

3A of the National Highways Act, 1956 (hereinafter

referred to as 'the N.I. Act' for brevity) in all the three

cases followed by a final Notification on different dates

under Section 3D of the NI Act and subsequently, the

Competent Authority- Special Lad Acquisition Officer

has passed the award under Section 3G (1) of the NH

Act on different dates in the year 2011. Aggrieved by

the said award, the respondent No.1 in all the three

appeals had filed an application under Section 3G (5)

of the NH Act before the respondent No.2 seeking for

enhancement of the award. The learned arbitrator/

respondent No.2 on different dates in the year 2019

has proceeded to pass the impugned awards

enhancing compensation of Rs.2,24,000/-,

Rs.1,28,800/- and Rs.12,800/- for every per cent of

the land acquired with interest at the rate of 9%.

3. Being aggrieved by the said judgment and

award passed by respondent No.2, the NHAI has filed

three separate arbitral suits under Section 34 of the

Arbitration and Conciliation Act in A.S.Nos.84/2019,

81/2019 and 83/2019 before the IV Additional District

Judge, Dakshina Kannada, Mangaluru along with an

interim application under Section 34(3) of the

Arbitration and Conciliation Act. The learned trial

judge dismissing the application for condonation of

delay has proceeded to dismiss all the suits on the

ground of delay on different dates under the

provisions of Section 34(2) of the Arbitration and

Conciliation Act. Hence, the present appeals are filed.

4. We have heard Sri Sreenath, learned

counsel appearing for the appellant- NHAI in all the

appeals.

5. Learned counsel for the appellant would

contend that the learned trial judge has failed to

appreciate the fact that there was only 28 days of

delay from 24.05.2019, the date when 90 days period

expires and therefore, the trial Court was competent

to condone the delay and should have exercised its

jurisdiction vested with it and ought to have

condoned the delay by allowing the application for

condonation of delay. He would further contend that

the trial Court has erred in dismissing the application

for coronation of delay by erroneously holding that the

arbitral suits filed is barred by limitation and the Court

has no power to condone the delay beyond the period

of 90 days. After expiry of 30 days, the Court has

power to condone the delay of another 30 days.

Same has not been considered by the trial Court. It is

further contended that copy of the award was not

served on the appellant well in time. Therefore, the

delay has to be considered only from the date of

receipt of copy of the order. Thereby the learned

judge is not justified in dismissing all the applications

for condonation of delay.

6. In view of the aforesaid contentions, the

only point that arises for our consideration is:-

"Whether the trial Court is justified in dismissing the arbitral applications filed by the appellant on the ground of delay under the provisions of Section 34(3) of the Arbitration and Conciliation Act and thereby is justified in dismissing the arbitration suits consequently?"

7. A careful perusal of provisions of Section

34(3) of the Arbitration and Conciliation Act, an award

cannot be set aside after lapse of 3 months and

further period of 30 days can be extended to the

plaintiff under the proviso added to Section 34(3), if

sufficient cause is shown for the delay caused in

challenging the award.

8. In the present case, the statutory period of

three moths was elapsed on 26.07.2009 from the date

of service of award i.e., on 26.04.2019. Therefore,

the application was required to be filed under Section

34(2) of Arbitration and Conciliation Act on or before

26.07.2019, but it was filed on 19.09.2019 i.e., after

lapse of 55 days. Though copy of the award was

delivered to the Project Director on 26.04.2019, the

applications were filed beyond the statutory period

- 10 -

mentioned under the provisions of Section 34(3) of

the Arbitration and Conciliation Act.

9. A careful perusal of Annexure 'C'- the

arbitral award produced by the appellant would clearly

depict though the award copy was served on the

Project Director through respondent No.2.

In support of the contention, learned counsel has

relied upon the dictum of the Hon'ble Supreme Court

in the case of Union of India Vs. Tecco Trichy

Engineers and Contractors reported in (2005) 4

SCC 293, wherein, it is held that "the copy of the

award has to be received by the person who has

knowledge of the proceedings and who would be the

best person to understand and appreciate the arbitral

award."

10. Admittedly in the present case both the

Project Director and the Special Land Acquisition

- 11 -

Officer who were parties before the learned Arbitrator

and who are aware of the proceedings have been

served with copy of the award. Copy of the arbitral

award was served through the Special Land

Acquisition Officer to the present appellant on

26.04.2009, but the arbitration applications have not

been filed within the time stipulated. Both the Project

Director and the Special Land Acquisition Officer had

knowledge of the proceedings and they would be the

best persons to understand the arbitral proceedings.

Therefore, the contention raised cannot be accepted

and the judgment relied upon by learned counsel is

not applicable to the facts and circumstances of the

present case.

11. Therefore, the learned trial judge is

justified in dismissing the application filed for

condonation of delay and thereby is justified in

dismissing all the arbitral suits. This Court while

- 12 -

dismissing the appeal on merits in MFA No.6778/2021

filed by NHAI has taken a specific view that when at

the first instance, the plea of limitation was not raised

before the learned arbitrator, the same cannot be

urged for the first time before the learned trial judge

while filing the arbitral suit under the provisions of

Section 34 of the Arbitration and Conciliation Act. For

the sake of argument, even if, we condone the delay

in the present appeals, the fact remains that the

grounds were not raised at the first instance before

the learned arbitrator and there is no foundation

before the learned arbitrator. Therefore, the appellant

has not made out any ground to interfere with the

impugned judgments and decrees.

12. In view of the above, the present

Miscellaneous First appeals are dismissed as devoid of

merits. The impugned judgments and decrees dated

04.11.2020, 31.08.2020 and 30.09.2020 made in

- 13 -

A.S.Nos.84/2019, 81/2019 and 83/2019 respectively

on the file of the IV Additional District Judge, Dakshina

Kannada, Mangaluru are hereby confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

PN CT.GD