Narendra Kumar vs Smt. Leela Bai
2021 Latest Caselaw 3686 MP

                                      1
                                                                 M.P. 3768/2018




      THE HIGH COURT OF MADHYA PRADESH

                             MP-3768-2018
          (NARENDRA KUMAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)




Jabalpur, Dated : 29/07/2021

Heard through Video Conferencing.


      Mr. Sudhir Kumar Shrivastava, learned counsel for the petitioner.

      Mr. Sunil Kumar Gupta, learned counsel for respondent No.1.

Mr. Rajesh Kumar Patel, learned counsel for respondent No.2.

The petitioner has filed this miscellaneous petition calling in question

the order dated 26.06.2018 contained in Annexure P/1. By the said order

learned Third Additional District Judge, Bhopal held that there was no delay

on the part of respondents in filing application under Section 34 of the

Arbitration and Conciliation Act, 1996 and application was treated within

limitation period prescribed under the Act.

Learned counsel for the petitioner has challenged the impugned order

dated 26.06.2018 on the ground that provisions of Limitation Act for

condonation of delay is not applicable under Section 34 of the Arbitration

and Conciliation Act, 1996. Period which was spent in prosecuting the case

before wrong forum cannot be excluded for counting the limitation

prescribed under Section 34 of the Act of 1996. The delay between

12.05.2012 and 16.08.2017 has not been explained by the respondents.

Learned Additional District Judge committed an error of law in treating the

M.P. 3768/2018

application within time though the same was filed after delay of 3 years and

seven months. The cause of action accrues to respondents in the year 2011

and objections against award was filed on 16.11.2017. In view of the same,

order dated 26.06.2018 may be set aside and application for arbitration filed

under Section 34 of the Arbitration and Conciliation Act, 1996 be dismissed.

Learned counsel for the respondents supported the order passed by the

Additional District Judge. It is submitted that objection was rightly held to be

within limitation in view of the provision under Section 31(5) of the

Arbitration and Conciliation Act, 1996. It is submitted that respondents had

filed suit on 12.05.2012 in Bhopal against award after receiving notice of

Execution Case No. 5/09 in December 2011. The petitioner filed an

application under Order 7, Rule 11 for dismissal of the suit which was

dismissed vide order dated 7.11.2012. The said order was challenged by the

petitioner in Civil Revision No. 63/13. The revision filed by the petitioner

was dismissed by the High Court vide its order dated 22.02.2013. The

petitioner challenged the said order in SLP (Civil) No. 1671/2014. The Apex

Court vide its order dated 28.07.2013 allowed the appeal and the order

passed by the Courts below were set aside and the suit was dismissed under

Order 7, Rule 11 of C.P.C. on the ground that the suit is not maintainable.

After dismissal of the suit, respondents had filed an application for setting

aside the award passed under Section 34 of the Act of 1996. The application

raising objection to award was filed on 16.11.2017. The parties applied for

certified copy of the award and received the same on 28.11.2017 and same

was filed in the Court. In view of the same, objection under Section 34 of the

Arbitration and Conciliation Act, 1996 was filed within a period of 90 days.

M.P. 3768/2018

Learned counsel for the respondents submitted that under Section

31(5) of the Arbitration and Conciliaton Act a signed copy of arbitral award

is delivered to each party. Copy of the arbitral award was not given to

respondents by sole arbitrator, therefore, they could not challenge the award

under Section 34 of the Arbitration and Conciliation Act, 1996. Respondents

learnt about the award on receiving notice of execution case, however, copy

of the award was not supplied to them by petitioner. In execution case also,

certified copy of the award was not filed. Petitioner only got copy of the

award on 28.11.2017 and same was filed in objections preferred under

Section 34 of the Act of 1996, as application under Section 34 of the

Arbitration and Conciliation Act, 1996 was filed within a period of 90 days

from the date of receipt of the award, therefore, the Third Additional District

Judge, Bhopal has rightly entertained application under Section 34 of the Act

of 1996 considering it to be in limitation.

Counsel for the respondents relied on judgment passed by the Hon'ble

Apex Court in the case reported in (2012) 9 SCC 496 (Benarsi Krishna

Committee Vs. Karmyogi Shelters (P) Ltd.). The respondents relied on

paragraphs 15 and 16 of the said judgment, which are quoted below :-

"15. Having taken note of the submissions advanced on behalf of the respective parties and having particular regard to the expression "party" as defined in Section 2(1)(h) of the 1996 Act read with the provisions of Sections 31(5) and 34(3) of the 1996 Act, we are not inclined to interfere with the decision of the Division Bench of the Delhi High Court impugned in these proceedings. The expression "party" has been amply dealt with in Tecco Trechy Engineers's case and also in ARK Builders (P) Ltd. case, referred to hereinabove. It is one thing for an advocate to act and plead on behalf of a party in a proceeding and it is another for an advocate to act as the party himself. The expression "party", as defined in Section 2(1)(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or advocate empowered to act on the basis of a Vakalatnama. In such circumstances, proper compliance with

M.P. 3768/2018

Section 31(5) would mean delivery of a signed copy of the Arbitral Award on the party himself and not on his Advocate, which gives the party concerned the right to proceed under Section 34(3) of the aforesaid Act.

16. The view taken in Pushpa Devi Bhagat's case is in relation to the authority given to an Advocate to act on behalf of a party to a proceeding in the proceedings itself, which cannot stand satisfied where a provision such as Section 31(5) of the 1996 Act is concerned. The said provision clearly indicates that a signed copy of the Award has to be delivered to the party. Accordingly, 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. The other decision cited by Mr. Ranjit Kumar in Nilakantha Sidramappa Ningshetti's case was rendered under the provisions of the Arbitration Act, 1940, which did not have a provision similar to the provisions of Section 31(5) of the 1996 Act. The said decision would, therefore, not be applicable to the facts of this case also.

In view of the same, learned counsel for the respondents submitted

that the Additional District Judge has rightly held that application under

Section 34 of the Act challenging award dated 6.1.2009 is filed within

limitation period.

Heard the learned counsel for the petitioner as well as respondents.

It is settled position of law that limitation prescribed under Section 34

of the Arbitration and Conciliation Act, 1996 shall run from the date of

delivery of signed copy of the award to the parties. Section 31(5) enjoins

upon arbitrator/ Tribunal to provide signed copy of the award to the parties.

The date on which arbitral award is provided to the party is crucial date

under Arbitration and Conciliation Act, 1996. It is from this date the period

of limitation for filing objections to award under Section 34 commences as it

has been held in case of Union of India Vs. Tecco Trichy Engineers &

Contractors, reported in (2005)4 SCC 239, State of Maharashtra Vs.

ARK Builders (P) Ltd, reported in (2011)4SCC616 and Anilkumar

Jinabhai Patel Vs. Pravinchandra Jinabhai Patel and others, reported in

(2018)15SCC178.

M.P. 3768/2018

In view of the aforesaid settled position of law, it has to be considered

as to when respondents received copy of the award and whether objections

were filed by the respondents within a period of 120 days or not. The

respondents in their reply to the miscellaneous petition filed on 28.09.2018,

in para 5.1 admitted that suit was earlier filed by the respondents on

12.05.2012 in Bhopal against the award after receiving notice of Execution

Case No. 5/09 in December, 2011. Pleadings made by respondents in civil

suit was considered. In para 10 of the pleadings, it was mentioned that the

award was passed on 6.1.2009 on the basis of agreement dated 1.6.2000.

Award of arbitration was typed on stamp paper of Rs.500/-. On the basis of

said award, defendants therein has filed Execution Case No.5/09. Further in

relief clause prayer was made to set aside forged arbitration award dated

6.1.2009 and to declare it null and void. The suit was filed on 12.05.2012

and the same was signed by Rajesh and Kishore and Lilabai put her thumb

impression on it. In view of the pleadings made in civil suit and the fact that

the same is signed/ attested by Rajesh, Kishore and Lilabai, it is clear that

respondents were in possession of the award on 12.05.2012 and they had full

knowledge and consequences of the award dated 6.1.2009. Respondents

contested the application filed by the petitioner under Order 7, Rule 11 and

the suit filed by the respondents was dismissed by the Apex Court. Learned

Additional District Judge, in the last para of the order dated 26.06.2018 had

given a specific finding that respondents learnt about the execution

proceedings in December, 2011 and from the respondent obtained certified

copy of the award and filed its objection on 16.11.2017 at centralized filing

centre. Again it was mentioned that certified copy of the award was received

by respondents on 28.11.2017. Respondents filed proceedings under Section

34 of the Arbitration Act, 1996 before obtaining certified copy which shows

M.P. 3768/2018

that they were in knowledge and possession of certified copy of the award

when execution proceedings were filed, and they preferred suit before the

Additional District Judge and contested the same until Apex Court.

Objections under Section 34 of the Arbitration and Conciliation Act was filed

on 16.11.2017 only after dismissal of suit by Apex Court. Respondents

adopting practices to delay execution and frustrate the award. No person with

average common sense will accept reasoning that after passing of award

when respondents contested execution proceedings, filed suit for declaration

of award to be null and void were not having certified copy of award from

December 2011 to 2017. In view of aforesaid facts and circumstances, it

cannot be said that application was filed within limitation period as

prescribed under Section 34 of the Act of 1996.

Resultantly, miscellaneous petition filed by the petitioner is allowed

and the order dated 26.06.2018 passed by the Third Additional District Judge

, Bhopal is set aside. It is held that respondents had filed objections under

Section 34 of the Arbitration and Conciliation Act beyond the limitation

period prescribed under Section 34(3) of the Arbitration and Conciliation

Act, 1996.

(VISHAL DHAGAT) JUDGE

Vikram

VIKRAM SINGH 2021.08.03 17:19:32 +05'30'