Rajasthan High Court

Malu Ram Agarwal vs Yogendra Agarwal And Anr ... on 6 December, 2023

[2023:RJ-JP:38072]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   S.B. Civil Writ Petition No.16209/2016

Malu Ram Agarwal S/o Late Shri Ganpat Lal Agarwal, R/o 2480,
Govindraoji Ka Rasta, Purani Basti, Chandpole Bazar, Jaipur
                                             ----Non Applicant No.1-Petitioner

                                       Versus

1.       Yogendra Agarwal alias Kaluram S/o Late Shri Ganpat Lal
         Agarwal, Resident of 2480, Govindraoji Ka Rasta, Purani
         Basti, Chandpole Bazar, Jaipur
                                                         ---Applicant-Respondent

2. Matadeen Agarwal S/o Late Shri Ganpat Lal Agarwal, Resident of 2480, Govindraoji Ka Rasta, Purani Basti, Chandpole Bazar, Jaipur

----Proforma-Non Applicant No.2-Respondent

For Petitioner : Mr.Mahesh Chand Gupta, Adv.



            HON'BLE MR. JUSTICE AVNEESH JHINGAN

                                   JUDGMENT


RESERVED ON                                                04.12.2023
PRONOUNCED ON                                              06.12.2023


AVNEESH JHINGAN, J:-

1. This petition is filed seeking quashing of the order

dated 18.10.2016 passed by the Additional District Judge, Jaipur.

2. The brief facts are that the petitioner and the

respondents are real brothers. There was a dispute between the

brothers with regard to ancestral property. The parties agreed for

referring the dispute to the Arbitration. The arbitration

proceedings culminated in the award dated 25.10.2011. The

respondent filed objection under Section 34 of the Arbitration and

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Conciliation Act, 1996 (for short 'the Act of 1996') on 08.10.2012.

The petitioner filed an application on 07.05.2016 raising an

objection that the objections filed are beyond the limitation. The

case set up was that photocopy of the award was provided to the

respondents on 28.12.2011 and the objections have been filed

beyond 120 days.

3. The Court considering that a signed copy of the award

was not delivered to the respondents, dismissed the application

and held the objection to be within limitation.

4. Learned counsel for the petitioner submits that the

petitioner had received a photocopy of the award on 28.10.2011,

the objections were filed after more than nine months and the

Court erred in dismissing the application of the petitioner.

5. Before proceeding further, Sections 31(5) and 34(3) are

reproduced as below:-

"31(5):- After the arbitral award is made, a signed copy shall be delivered to each party.

34(3):- (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."

6. As per Section 31(5) of the Act of 1996, signed copy of

the arbitral award has to be delivered to each of the party.

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7. As per Section 34(3) of the Act of 1996, the application

for setting-aside the award is to be filed within three months from

the date of receipt of arbitral award by the party making an

application. In case where the request is made under Section 33,

the period of limitation shall be from the date on which the

request was disposed of by the Arbitral Tribunal. Under proviso to

Section 34(3) on showing a sufficient cause the application can be

entertained upto 30 days beyond the limitation and not thereafter.

8. On reading Section 31(5) with Section 34(3) of the Act

of 1996 position emerges that application under Section 34 is to

be filed within three months of receiving the arbitral award i.e.

serving of the signed copy of the award on the party. In other

words, limitation under Section 34(3) shall commence from the

receipt of signed copy of the award.

9. It is not disputed that only photocopy of the award was

served upon the respondent on 28.10.2011. A finding has been

recorded in the impugned order that signed copy of the award was

not delivered and this finding has not been challenged in the

present writ petition.

10. The Apex Court in the case of Union of India Vs.

Tecco Trichy Engineers & Contractors reported in [(2005)4

SCC 239] held as under:-

"8. The delivery of an arbitral award under sub- Section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be "received" by the party. This delivery by the arbitral tribunal and receipt by the party of the award sets in

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motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings."

11. The Apex Court in the case of State of Maharashtra

and Ors. Vs. ARK Builders Pvt. Ltd. reported in [(2011)4 SCC

616] held as under:-

"15. The highlighted portion of the judgment extracted above, leaves no room for doubt that the period of limitation prescribed under Section 34(3) of the Act would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law."

(emphasis supplied)

12. The Apex Court in the case of Dakshin Haryana Bijli

Vitran Nigam Limited Vs. Navigant Technologies Private

Limited reported in [(2021)7 SCC 657] considering its earlier

decisions in the case of Tecco Trichy Engineers & Contractors

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(supra) and ARK Builders Pvt. Ltd (supra) held that limitation

shall start from the delivery of signed copy of award.

The relevant paras are quoted:-

27. Sub-section (1) of Section 31 read with sub-

section (4) makes it clear that the Act contemplates a single date on which the arbitral award is passed i.e. the date on which the signed copy of the award is delivered to the parties. Section 31 (5) enjoins upon the arbitrator/ Tribunal to provide the signed copy of the award is delivered to the parties. The receipt of a signed copy of the award is the date from which the period of limitation for filing objections under Section 34 would commence. This would be evident from the language of sub-section (3) of Section 34.

34. There is only one date recognised by law i.e. the date on which a signed copy of the final award is received by the parties, from which the period of limitation for filing objections would start ticking. There can be no finality in the award, except after it is signed, because signing of the award gives legal effect and finality to the award.

35. The date on which the signed award is provided to the parties is a crucial date in arbitration proceedings under the Arbitration and Conciliation Act, 1996. It is from this date that:

35.1 The period of 30 days for filing an application under Section 33 for correction and interpretation of the award, or additional award may be filed, 35.2 The arbitral proceedings would terminate as provided by Section 32(1) of the Act, 35.3 The period of limitation for filing objections to the award under Section 34 commences.

36. Section 34 provides recourse for judicial scrutiny of the award by a Court, upon making an application under sub-sections (2) and (3) for setting aside the award. The period of limitation for filing the objections to the award under Section 34 commences from the date on which the party making the application has "received" a signed copy of the arbitral award, as required by Section 31(5) of the 1996 Act. Section 34(3) provides a specific time-limit of three months from the date of "receipt" of the award, and a further period of thirty days, if the Court is

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satisfied that the party was prevented by sufficient cause from making the application within the said period, but not thereafter.

(emphasis supplied)

13. The present writ petition is dismissed.

(AVNEESH JHINGAN), J HS/347