* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: February 27, 2013
Judgment delivered on: March 4, 2013
+ OMP No.515/2011
KANWALJEET KAUR BEDI ..... Petitioner
Through Mr.A.P.S. Ahluwalia, Sr. Adv. with
Mr.S.S. Ahluwalia and Mr.Rohan
Ahuja, Advs.
versus
ADITYA BIRLA RETAIL LTD. & ANR. ..... Respondents
Through Mr.Sanjeev Anand, Adv. with
Ms.Kajal Chandra and Mr.Abhas
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
I.A.No.10836/2011 (condonation of delay)
1. The petitioner filed the petition under Section 34 of the Arbitration
and Conciliation Act, 1996 for setting aside the award dated 23 rd March,
2010 passed by Sh.P.L. Joshi, the sole Arbitrator in the matter. Along with
the objections, the petitioner filed an application under Section 34(3) read
with Section 151 CPC for condonation of delay of about 11 months in filing
the petition for setting aside the Award dated 23rd March, 2010.
2. By this order I propose to decide the application for condonation of
delay, being I.A.No.10836/2011. The petitioner has specifically made the
statement in the application that the petitioner never received any notice of
passing of the Award from the learned Arbitrator. The petitioner came to
OMP No.515/2011 Page 1 of 6
know about the same by way of notice of execution of 29 th May, 2011 and
thereafter the objections were filed. As far as limitation for filing the
application for setting aside the Award is concerned, according to the
petitioner, time has still not lapsed as signed copy of the Award has not been
received by the petitioner.
3. The respondent has opposed the prayer of the application filed by the
petitioner. Along with the reply, the respondent filed an affidavit of
Mrs.Arathi Shivkumar who deposed that subsequent to the making of the
Award, the learned Arbitrator handed over the original signed Award to her
for sending the same to the petitioner. In terms of the said directions of the
learned Arbitrator on 29th March, 2010, she sent/posted original signed
Award to the petitioner and its copy to her Advocate Sh.Sanjay Agnihotri
through courier along with letter dated 29th March, 2010. The copies of the
letter, courier receipts as well as print out from the website of the courier
company giving the status of the service report have been attached along
with the affidavit which show that the said letters were delivered to the
petitioner and her Advocate.
4. Mr.Sanjeev Anand, learned counsel appearing on behalf of the
respondent, stated that the petitioner has made an incorrect statement before
the Court that the petitioner has not received the signed copy of the Award.
However, it is not disputed by him that the sole Arbitrator did not send the
signed copy of the Award or the copy of the award to the petitioner directly
either by hand or by post. He referred to letter dated 16th February, 2009
issued by the Arbitrator in which it is informed by him to the parties that he
did not have his own secretarial staff to communicate the proceedings to the
parties and he left the administrative and clerical work relating to the
communication of the proceedings to the parties but limited to dispatch of
OMP No.515/2011 Page 2 of 6
letters, communication to parties or any other documents under his express
directions against the charges to be reimbursed by him. Lastly, it was
argued by Mr. Anand that since petitioner and her counsel have denied
having received the signed copy of the Award under the of letter dated 29th
March, 2010, it was their duty to disclose the Court about the receiving of
letter and its contents received by them.
5. Mr.A.P.S. Ahluwalia, learned Senior counsel appearing on behalf of
the petitioner, argued that mere sending of the alleged letter by the
respondent to the petitioner is not sufficient under the compliance of Section
31(5) of the Arbitration and Conciliation Act, 1996 and it does not prove
that by that letter the petitioner had received the signed copy of Award.
Even otherwise, the said letter dated 29th March, 2010 to the petitioner was
sent through respondent's legal department and the same neither contained
the signature of the arbitrator nor the same was sent on behalf of the
arbitrator as contemplated under the Act. The receipts as relied upon by the
respondent are not conclusive evidence about the contents i.e. signed copy
of the Award.
6. I have considered the rival submissions of the parties on this aspect.
It is settled proposition of law that wherever a prescribed period of time is
laid down by a statute, it is to be strictly complied with before adverse
orders are passed. In the present case, it is undisputed fact that the
Arbitrator has not dispatched the signed copy/copy of the award to the
petitioner rather in a letter issued by him on 29 th August, 2011 to the
Registrar General of this Court along with the Arbitral Record in sub para 2,
he admitted as under:
"Please note that the original award is not part of these
records since it was been handed over the Claimant on its
OMP No.515/2011 Page 3 of 6
request for the same, for execution. Since the Claimant
has reported that the original award has been filed for
execution in Delhi, it has no copy thereof. I have
therefore directed the Claimant, that if needed, to arrange
for submission of the copy of award by its official in
Delhi in connection with the proceedings under
reference. I hope the official of Claimant in Delhi will
take expeditious steps for availing certified copy of the
award produced in execution proceedings and submit the
same in your office in connection with proceedings under
reference."
7. The petitioner has referred to the recent judgments of the Supreme
Court in the case of The State of Maharashtra & Ors. v. M/s. Ark Builders
Pvt. Ltd., 2011 (2) Supreme 214 and Benarsi Krishna Committee & Ors. v.
Karmyogi Shelters Pvt. Ltd., 2012 (7) Supreme 140.
8. In both the cases, the question before the court was whether the period
of limitation for making an application under Section 34 of the Act for
setting aside an arbitration award is to be reckoned from the date a copy of
the award is received by the objector by any means and from any source, or
it would start running from the date a signed copy of the award is delivered
to him by the arbitrator? This was the question decided in both the matters.
In the case of The State of Maharashtra & Ors. v. M/s. Ark Builders Pvt.
Ltd. (supra), it was held that "Section 31(1) obliges the members of the
arbitral tribunal/arbitrator to make the award in writing and to sign it and
sub-section (5) then mandates that a signed copy of the award would be
delivered to each party. A signed copy of the award would normally be
delivered to the party by the arbitrator himself. The High Court clearly
overlooked that what was required by law was the delivery of a copy of the
award signed by the members of the arbitral tribunal/arbitrator and not any
copy of the award.
OMP No.515/2011 Page 4 of 6
9. In Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt. Ltd.
(supra), the facts were that the matter was carried out to the Division Bench
of the High Court by the respondent by way of an appeal, being FAO (OS)
No.578/2009, who accepted the appeal and held that the service of the award
had not been properly effected. The Division Bench remanded the matter to
the Single Judge to decide the objections on the award on merits, upon
holding that for compliance with the provisions of Section 31(5) of the 1996
Act, a copy of the award had to be delivered to the party itself. The service
to the counsel did not amount to service within the meaning of Section 31(5)
of the aforesaid Act. In para 16 of the judgment, the Hon'ble Supreme
Court observed that the said provision clearly indicates that a signed copy of
the Award has to be delivered to the party. 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.
10. In the present case, it is undisputed fact that the sole arbitrator has not
sent the signed copy of the award to the petitioner. He has also admitted
that even copy of the award was not sent. In his letter dated 29 th August,
2011 he has admitted that the original award was handed over to the
respondent as per its request for the purpose of filing the execution which
was in fact filed by the respondent. In the letter, it was neither alleged by
him that he has at any point of time sent copy to the petitioner. The
submission of the respondent is immaterial even a letter dated 29 th March,
2010 was sent to the petitioner and to her Advocate as the petitioner is
denying having received the signed copy. But, it cannot be presumed that
the said letter contained the signed copy of the award. In the letter dated
29th March, 2010 the word "signed" is not mentioned. Even otherwise, as
per the mandate of Section 31(5) a signed copy of the award has to be
OMP No.515/2011 Page 5 of 6
delivered to each party by the Arbitrator himself in view of two decisions of
the Supreme Court referred by the petitioner's counsel on this aspect . In the
present case, neither the said copy was sent by him or personally delivered
by him to the petitioner, therefore, it would not amount to compliance within
the provision of Section 31(5) of the Act. In view of the peculiar facts and
circumstances of the present case, the present application is allowed. The
delay sought by the petitioner is condoned. The same is disposed of.
OMP No.515/2011
List for preliminary hearing on 22nd March, 2013.
(MANMOHAN SINGH)
JUDGE
MARCH 4, 2013/jk
OMP No.515/2011 Page 6 of 6
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