Full Text
HIGH COURT OF DELHI
29927/2020 M/S AHLUWALIA CONTRACTS (INDIA) LTD .... Appellant
Through: Mr. Abdhesh Chaudhary, Adv. alongwith Mr. M.K. Hingorani, AR.
Through: Mr. Pankaj Gupta & Mr. Ajay Gupta, Adv.
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J.
The hearing has been conducted through video conferencing.
JUDGMENT
1. This is an appeal filed by the appellant challenging the Order dated 07.03.2020 passed by the learned District Judge (Commercial Court) – 02, South-East District, Saket, Delhi, in OMP (COMM) 30 of 2018, titled M/s Ahluwalia Contracts (India) Ltd. v. Ashok Khanna, dismissing the application of the appellant herein filed under Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) read with Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing of the application under Section 34 of the Act in challenge to the Arbitral Award dated 02.08.2018 passed by the learned Sole Arbitrator. 2021:DHC:2334-DB
2. The controversy, in brief, is the date on which the limitation to file the application under Section 34 of the Act commenced. This dispute is premised on the underlined submission of the appellant that the signed copy of the Arbitral Award was received by the appellant only on 07.09.2018, while it is the case of the respondent, which has also been accepted by the learned District Judge, that the signed copy of the Arbitral Award was supplied to the appellant by the Delhi International Arbitration Centre (hereinafter referred to as the ‘DIAC’), under whose aegis the arbitration proceedings had been conducted, on 02.08.2018 itself, that is, the date of the Arbitral Award.
3. As the issue involved is only of period of limitation for filing of the application under Section 34 of the Act, both the parties have rightly not made any submissions on the merit of the Arbitral Award nor shall we be discussing the same in this present appeal.
4. Sub-Section (3) of Section 34 of the Act reads as under:
5. It is no longer res integra that the period of limitation provided under Section 34(3) of the Act commences from the date of receipt of a signed copy of the Arbitral Award by the applicant. In this regard, reference may be made to the judgments of the Supreme Court in Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239; State of Maharashtra & Ors. v. ARK Builders Pvt. Ltd., (2011) 4 SCC 616; and Dakshin Haryana Bijli Vitram Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157.
6. As noted hereinabove, the dispute between the parties in the present appeal is only with regard to the date on which the appellant received a signed copy of the Arbitral Award. It is the case of the appellant that by an e-mail dated 30.07.2018, the parties to the arbitration proceedings were informed by the DIAC that the learned Sole Arbitrator will pronounce the Arbitral Award on 02.08.2018 at 02:30 pm. The parties were further informed, as under: “The Original Signed Award is only handed over to the parties in person and not to their respective Counsel. The same is handed over to the respective Counsel only on an Authorization letter / email by the respective party.”
7. On 02.08.2018, the appellant was represented before the learned Arbitrator by Mr. Mahanand Joshi, the Legal Officer of the appellant. The learned Arbitrator, in her Procedural Order dated 02.08.2018, refused to give a signed copy of the Arbitral Award to Mr. Joshi as he was not the Authorised Representative of the appellant. The Procedural Order dated 02.08.2018 recorded, as under: “The Respondent filed its written submissions on 16.07.2018 and the Claimant on 27.07.2018. Stamp paper supplied by the Claimant. Award announced. Signed copy of the same is given to the Claimant. The signed copy for the Respondent will be delivered to the authorised representative of the Respondent within two days failing which the same would be sent to the Respondent by Post.”
8. The appellant thereafter, pursued the DIAC for a signed copy of the Arbitral Award on 09.08.2018; 14.08.2018; 24.08.2018 and 31.08.2018, however, without success. It was only on 07.09.2018 that the appellant by way of an e-mail from Mr. M K Hingorani, the authorised representative of the appellant, further authorised Mr. Joshi to collect the Arbitral Award on its behalf and pursuant thereto, the original signed Arbitral Award was delivered to the appellant by the DIAC against a receipt obtained from Mr. Joshi on the face of the Arbitral Award. The appellant contends that therefore, 07.09.2018 is the date of commencement of period of limitation for filing of the application under Section 34 of the Act in challenge to the Arbitral Award.
9. On the other hand, the learned counsel for the respondent submits that on 02.08.2018, though the learned Arbitrator had refused to hand over a signed copy of the Arbitral Award to Mr. Joshi, however, Mr. Joshi received the same from the DIAC itself against a proper receipt executed by him on the face of the Arbitral Award on its last page. He therefore, reiterates that the period of limitation shall commence from 02.08.2018 itself and the receipt of a subsequent copy of the Arbitral Award by the appellant, on 07.09.2018, shall not postpone the said date.
10. At the outset, the finding of the learned District Judge on the issue of limitation needs to be notice, and is reproduced hereunder:- “ I have heard both the parties and perused the record. Since, the original award dated 02.08.2018 bears signatures of both the parties as token of its receipt on the same dated i.e. 02.08.2018, there is no need for any further explanation. Application cannot be allowed. Accordingly, the application for condonation of delay in filing the objections under Section 34(3) of the Arbitration and Conciliation Act, 1996 is dismissed.”
11. On 23.11.2020, when the present appeal was first listed before a Single Judge of this Court, the learned counsel for the appellant submitted that though the award was seen on the date it was passed, that is 02.08.2018, the signed copy of the award was made available only on 07.09.2018. Even before us, on 01.06.2021, the learned counsel for the appellant reiterated that there was no endorsement of receipt of the arbitral award on behalf of the appellant on 02.08.2018 as has been wrongly held by the learned District Judge. He in fact, drew our attention to the certified copy of the Arbitral Award filed by the appellant along with the appeal as ‘Annexure A/2’. The same did not bear any endorsement of the receipt of the Arbitral Award by the appellant on 02.08.2018 as claimed by the learned counsel for the respondent, however, showed the receipt of copy for the appellant herein by Mr. Joshi, on 07.09.2021, on the first page of the Arbitral Award.
12. Taking note of the above submission, this Court vide its Order dated 01.06.2021 directed the DIAC to send the original arbitral record to this Court. In compliance with the said Order, the DIAC has forwarded the arbitral record in an electronic form.
13. The arbitral record filed by the DIAC again shows that the copy of the Arbitral Award was received by Mr. Joshi only on 07.09.2018.
14. As the learned counsel for the respondent still insisted that the arbitral record examined by the learned District Judge showed the endorsement of receipt of the Arbitral Award by the appellant on 02.08.2018, this Court vide its order dated 03.06.2021 directed the Registry of this Court to forward a copy of the Arbitral Award received from the DIAC to the respective learned counsel for the parties for making submissions.
15. The respondent has thereafter filed additional documents on 02.07.2021, including a copy of the Arbitral Award dated 02.08.2018. The same on internal ‘Page 20’ thereof clearly shows the endorsement of receipt of the copy of the Award under the signature of Mr. Joshi. A scanned copy of the same is reproduced hereinbelow:
16. Faced with the above document, the appellant has filed an additional affidavit of Mr. Hingorani, Assistant Vice President (Contracts) of the appellant, who claims himself to be the authorised representative of the appellant company. In the affidavit Mr. Hingorani, while reiterating that the signed copy of the Arbitral Award was received only on 07.09.2018, further stated as under:
17. That the “Original Signed Award” came to be received by the appellant only on 07.09.2018 as aforesaid and not on 02.08.2018 and unfortunately the signatures on the last page of the arbitral award of Mr. Mahanand Joshi could not be explained by the appellant either in their petition u/s 34 Arbitration & Conciliation Act or in the present Appeal due to being unacquainted and also basically because Mr. Mahanand Joshi did not inform about the same to the Appellant, may be due to it being inconsequential and later the said Mr. Mahanand Joshi even left the employment of the Appellant company.”
17. In our view, the above affidavit fails to adequately explain the admitted endorsement of receipt of the Arbitral Award by Mr. Joshi on the face of the Arbitral Award itself on 02.08.2018. Though it is stated that the affidavit of Mr. Joshi to explain the same, could not be filed as he has left the employment of the appellant, we find that the affidavit of Mr. Joshi was filed alongwith the application under sub-section (3) of Section 34 of the Act before the learned District Judge, however, for reasons unexplained, a copy of the said affidavit was not filed with the appeal or with the additional affidavit now filed before this Court. We may also note that though the learned District Judge in the Impugned Order had given a categorical finding on basis of his observation that the original Arbitral Award dated 02.08.2018 itself bears signatures of both the parties as token of receipt on the same day, the appellant made no endeavour to contradict the said finding in the present appeal. In fact, the present appeal was premised on a submission that no such endorsement appears on the face of the Arbitral Award and this finding is factually incorrect. This submission now having being disproved by the respondent, the appellant is clearly trying to set up a new case in form of the additional affidavit and submission made before this Court. The same cannot be permitted or accepted. In fact, the appellant clearly attempted to misled this court
18. We, therefore, find no merit in the present appeal and the same is dismissed.
19. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.
NAVIN CHAWLA, J MANMOHAN, J AUGUST 04, 2021/rv/P/Ab.