Madras High Court
S.K.C. Constructions vs M/S.Aishwarya Structural And on 8 November, 2021
OSA (CAD) No.106 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.11.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
OSA (CAD) No.106 of 2021
S.K.C. Constructions,
rep. by its Proprietor Ahil Mani,
Previously having office at
No.77, 4th Street, W-Block,
Anna Nagar, Chennai-47
Presently residing at
No.-48, Vasuki Nagar 1st Main Road,
Kodungaiyur,
Chennai – 600 118. ... Appellant
Vs.
M/s.Aishwarya Structural and
M/s.Susmitha Decors,
rep. by one of their Proprietor M.K.Thiyagarajan,
Having office at
No.11, Sannathi Street, Kamatchi Nagar,
Kovilambakkam,
Chennai – 600 100. .. Respondent
Prayer: Appeal filed under Section 13(1A) of the Commercial Courts
Act, 2015 read with under Section 37 of the Arbitration and
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OSA (CAD) No.106 of 2021
Conciliation Act, 1996 against the order dated 08.04.2021 made in
O.P.No.573 of 2020 on the file of this Court.
For the Appellant : Mr.T.R.Rajagopalan
Senior Counsel
for Mr.S.Gopinathan
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
The appellant, who went unrepresented before the arbitral
tribunal despite due notice, complains of the arbitration court
disregarding three other grounds raised by the appellant herein apart
from the primary ground that the appellant had not been served or
given any effective notice to participate in the arbitral reference.
2. On the primary ground, the arbitration court held against the
appellant herein. The court found that the records of the Arbitrator
revealed that counsel appearing for the appellant herein appeared
before the Arbitrator and the schedule of hearing was fixed by the
minutes of the Arbitrator dated August 31, 2015. The court of first
instance recorded that the dates were re-scheduled and counsel for
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OSA (CAD) No.106 of 2021
the appellant herein signed the minutes of November 25, 2015.
Several opportunities were granted thereafter, but the appellant failed
to file its counter-affidavit for more than 18 months or so. The court
was satisfied that the e-mail address to which communication were
sent was the same e-mail ID that had been furnished by counsel for
the appellant herein to the arbitral tribunal.
3. Further, the court found that immediately after the award was
passed, a copy was sent through speed post on January 5, 2018 and
the same was received by or on behalf of the appellant herein. The
court found that the challenge to the arbitral award could not be
entertained since the award was passed in 2017, a copy thereof had
been dispatched on January 5, 2018 which was duly received by or on
behalf of the appellant herein.
4. With respect, once the court found that the challenge under
Section 34 of the Arbitration and Conciliation Act, 1996 was not within
the statutorily ordained time-limit, the substance of the challenge need
not have been addressed. Indeed, since the issue was of the violation
of the principles of natural justice, the court, in its usual spirit of
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OSA (CAD) No.106 of 2021
generosity, rendered a finding that the challenge on such count was
completely baseless since the petitioner before such court had due
notice of the schedule of the arbitral reference and deliberately chose
not to file any counter-affidavit or be represented in the arbitration
reference.
5. In the light of the decision rendered by the court of the first
instance that the challenge to the arbitral award was carried beyond
the permissible limit, the challenge should have been thrown out,
without any discussion on merits. It really does not lie in the mouth of
such a recalcitrant and laggard as the appellant herein to suggest that
the court ought to have gone into the other issues. Once a petition
under Section 34 of the Act of 1996 is found to have been lodged
beyond time, the merits of the challenge need not be addressed.
There is no dispute – even no attempt to indicate otherwise – that the
petition under Section 34 of the Act of 1996 was filed in court within
the permissible time.
5. For the reasons aforesaid, OSA (CAD) No.106 of 2021 is
dismissed with costs assessed at Rs.10,000/- which the appellant will
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OSA (CAD) No.106 of 2021
pay to the Tamil Nadu State Legal Services Authority within a fortnight
from date.
C.M.P.No.18248 of 2021 is closed.
(S.B., CJ.) (P.D.A., J.)
08.11.2021
Index : No
bbr
To:
The Sub Assistant Registrar,
Original Side,
High Court of Madras.
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OSA (CAD) No.106 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
bbr
OSA (CAD) No.106 of 2021
08.11.2021
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