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HIGH COURT OF DELHI
JUDGMENT
FEDERAL BRANDS LTD.(PREVIOUSLY MICROTEX INDIA
LIMITED .... Petitioner
Advocates who appeared in this case:
For the Petitioner : Mr.Sridhuran Ram Kumar with Ms Sheetal Vohra
For the Respondents: Mr Kashy John for R-1.
Mr Shwetank Tripathy for R-2.
1. The Petitioner has filed the present petition under section 34 of the Arbitration and Conciliation Act, 1997 (hereinafter referred to as the „Act‟) impugning the Arbitral award dated 20.05.2016.
2. Respondent No.1 has raised preliminary objection that the petition, under section 34 of the Act, having been filed on 17.11.2016, is ex-facie barred by limitation.
3. It is contended by Respondent No. 1 that the award was passed on 20.05.2016 and assuming the petitioner was not aware of the passing of the award, it became aware of it on 09.06.2016, when it 2018:DHC:3520 was communicating with the domain service provider of respondent No. 2. It is contended that the petitioner having registered its domain through NIXI, had agreed to follow the rules and procedures laid down by NIXI in connection therewith inter alia the policies set down for the raising and resolving disputes relating to.IN domain names. As per rule 2 of the INDRP Rules of Procedure, sending of the a copy of the complaint in electronic form to the postal address, facsimile and email address shown in the domain name‟s registration data discharges the responsibility of the Registry. It is contended that as per its knowledge all mode were employed for serving the signed copy of the award on the petitioner. It is further contended that the Arbitrator by email dated 02.05.2016 had stated that copy of the complaint and annexures had been served on the petitioner by respondent No. 2. It is contended that details of the award were communicated by the respondent No. 2 to the petitioner by email dated 26.05.2016.
4. Petitioner has contended that it was never effectively served with copy of the Complaint nor with the arbitral award dated 20.05.2016 and become aware of the arbitral award only on 20.06.2016 through the Registrar through whom the domain name was registered, when it was renewing its domain name. The Petitioner, after coming to know of the transfer wrote an email dated 20.08.2016 to the Respondent No 2 to stop the transfer of domain name as the Petitioner would be contesting the award. It is contended that it has never received a signed copy of the award as is mandated by section 31 of the Act.
5. Since a preliminary objection was raised by the Respondent No.1 on the issue of limitation and it was contended that prior to considering the objections under section 34 of the Act, the issue of limitation needs to be determined and if the petition was barred by limitation no further adjudication would be required. Arguments were heard restricted to question of limitation.
6. Respondent No. 1 filed a Complaint before the.IN Registry for cancellation of domain name www.blackbuck.in of the Petitioner.
7. As per the Petitioner, on 09.06.2016 it was informed by the that an ex-parte award dated 20.05.2016 has been passed, by the arbitrator appointed by Respondent No.2, directing transfer of the domain name to the Respondent No.1 and it is only then that it became aware of the award and the proceedings before the Arbitrator.
8. As per the Petitioner, the sole arbitrator passed the ex-parte award without hearing the Petitioner. It is contended that neither a copy of complaint, notice of arbitration, courier containing the complaint nor a signed copy of the award dated 20.05.2016 was served to it resulting in violation of Section 31 (5) of the Act.
9. The contention of the Plaintiff is that as per Rule 13 of the INDRP Rules and Section 31(5) of the Act, Petitioner was entitled to be informed and supplied with signed the copy of the award to enable the Petitioner to challenge the same, in the event the Petitioner is aggrieved by the same. It is contended that actual handwritten signed and originally stamped copy of arbitral award has to be delivered to the parties for it to be effective, and it has to be „received‟ by the party. The period of limitation would also be calculated from the aforesaid date.[1]
10. On the other hand it is submitted by Respondent No. 1 that assuming that a copy of the award was not received, it is an admitted position that the Petitioner became aware of the arbitral award on 09.06.2016 but chose to communicate with the Registry only on 20.08.2016 and the present petition was filed on 17.11.2016 and in terms of Section 34(3) of the Act, the time period for challenging an arbitral award is 3 months from the date of receipt of the signed copy of the award. The petition, having been filed after three months, is barred by limitation.
11. Section 31 of the Act inter alia provides as under:
31. Form and contents of arbitral award.— (1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal. Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239 (2) For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated. (3) ****** (4) ****** (5) After the arbitral award is made, a signed copy shall be delivered to each party. (6) ******
12. In terms of section 31 of the Act, the Award has to be signed by all the members of the arbitral tribunal and after the award is made a signed copy of the award is to be delivered to each party. The expression used in section 31(5) is “a signed copy shall be delivered to each party”.
13. Section 34 of the Act, inter alia stipulates as under:
34 Application for setting aside arbitral award. — (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) ****** ****** (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. (4) ******
14. In terms of section 34 recourse to an award can only be made within three months of the receipt of the arbitral award. The limitation prescribed is to be strictly construed and is extendable only for a further period of thirty days and that also on showing of a sufficient cause and is not extendable thereafter.
15. Section 34 when read in conjunction with section 31 of the Act shows that it is the receipt of a signed copy of the award, which is the trigger point for the commencement of limitation. Since limitation is to be strictly construed, the requirement of complying with the provisions of section 31(5) has also to be strictly construed.
16. National Internet Exchange of India (“NIXI” for short: the Respondent No. 2) has filed certain documents. By email dated 11.04.2016 NIXI informed the parties that an arbitrator was appointed for handling the disputes relating to the domain name BLACKBUCK.IN.
17. By Email dated 12.04.2016 the arbitrator informed the parties about his appointment and required NIXI and the Respondent No. 1 to send a copy of the complaint to the Petitioner (Respondent therein) The arbitrator also required the Petitioner to file its reply within 15 days of receipt of the copy of the complaint.
18. By email dated 18.04.2017 NIXI informed the arbitrator that copy of complaint had been sent on 11.04.2016 and was delivered on 13.04.2016 at Mumbai.
19. By email dated 02.05.2016 arbitrator noted the delivery of the consignment containing a copy of the complaint and that no reply had been filed and stated that award would be passed based on documents on record.
20. No date of hearing was fixed by the arbitrator
21. The impugned award was passed on 20.05.2016. By email dated 26.05.2016 NIXI informed the parties that arbitration award with respect to domain name dispute BLACKBUCK.IN had been pronounced on 20th May 2016 and has been uploaded on the Registry website. It is this email, which is stated to be in compliance of section 31(5) of the Act i.e. constituting the delivery of a signed copy of the award.
22. It is contended by the petitioner that none of the emails referred to above or the packet containing the copy of the complaint were ever delivered to the petitioner. The Administrator and the contact person of the petitioner i.e. Josephine Swami and Megha Maheshwari respectively had resigned and the contact details/emails were inoperative and this factum had been uploaded on the website of the 15.02.2010 and Megha Maheshwari resigned on 10.04.2013.
23. Without going into the controversy as to whether the Administrator and contact person had changed or whether the intimation qua the same was updated by the petitioner or whether a copy of the complaint and notice of arbitration proceedings was served on the petitioner, in my view the question of limitation can be resolved by examining as to whether the petitioner was delivered a signed copy of the award by the Arbitrator or not.
24. It is an admitted position that the Arbitrator never sent a signed copy of the award to the petitioner. Leave alone a signed copy, no copy of the award has been sent to the petitioner.
25. Respondents have relieved upon email dated 26.05.2016, whereby NIXI is alleged to have informed parties that the award dated 20.05.2016 has been uploaded on the website of NIXI. Further reliance is placed on the email of the Registrar dated 09.06.2016 informing the petitioner that server locks had been put on the website.
26. It would be expedient to refer to the email dated 26.05.2016, which reads as under: “Dear All, Greetings of the day. This is to inform that the arbitration award with respect to the domain name dispute BLACKBUCK.IN has been pronounced on 20th May 2016 by Learned Arbitrator Mr. Sonal Kumar Singh is uploaded on the Registry website. Case No. INDRP/786 <https://registry.in/Policies/DisputeCaseDecisions> https://registry.in/Policies/DisputeCaseDecisions Date of implementation of Award: 27.08.2016 This is for your information and further follow ups on completion of the statutory period of 3 months. Please contact us for any clarifications. Regards R.R. KRISHNAA Legal Officer National Internet Exchange of India ******* ******”
27. Said email is sent to the email address of the Petitioner, which the petitioner alleges had been changed with intimation to the registrar. There is a dispute as to whether the intimation was given to the Registrar of the change of email address and as to whether it was uploaded on the site. Even if one were, for the moment, to ignore the said dispute, what is further apparent from the email is the following:
(i) No email is sent by the arbitrator enclosing a signed copy of the award.
(ii) Subject email is not sent by the arbitrator but by NIXI.
(iii) Leave alone signed copy, even copy of the award was not attached with the email.
(iv) The email gives a link to a particular page on the website of
NIXI. The page that opens by clicking the link is a home page (shown below) which gives about 10 awards of various parties commencing from 03.04.2006 upto 20.05.2006. The home page shows further options of opening other pages (over 90 in number, each containing about 9 – 10 awards). There is no search option whereby a party can search for a particular award or domain name. To trace out the award one has to scroll page by page. Petitioner‟s award is found on page 79.
(v) The home page that opens is as under:
28. Cleary the mandate of section 31(5) of the act has not been complied with. Section 31(5) mandates service of a signed copy of the award on the parties. No copy of the award has been sent to the Petitioner. The link of the website sent to the petitioner, also does not lead to the award. One has to search the award by scrolling several pages.
29. The contention of Respondent No. 1 that petitioner became aware of the award, as a copy of the award was forwarded by the domain service provider Bigrock.in, is of no consequence as the mandate of the Act is that a signed copy of the award has to be sent to the parties by the Arbitrator. Even if assuming NIXI was acting on behalf of the Arbitrator and a copy sent by NIXI would satisfy the requirement of Section 31(5) of the Act, in the present case even NIXI did not send a copy of the award. As noticed above what it sent is a link; which also in not a link to the copy of the award but to a home page, and thereafter several pages have to be searched/scrolled to locate the award. Receipt of a copy of the award from some other source would not be sufficient to trigger the limitation.[2]
30. Since limitation is to be strictly construed, unless a signed copy of the award is delivered to the party, it would not amount to compliance of the provisions of section 31(5) of the Act. 3 State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC 616 Benarsi Krishna Committee v. Karmyogi Shelters (P) Ltd., (2012) 9 SCC 496
31. In the present case, since signed copy of the award has not even been sent to the Petitioner, there is no question of it being delivered to the petitioner. The petition under section 34 of the Act clearly cannot be held to be barred by limitation.
32. The preliminary objection raised by the Respondents is accordingly rejected.
33. Since, this order is restricted to the preliminary objection raised by the petitioner, the questions raised with regard to the service of the notice of invocation of arbitration, the mode and manner of appointment of arbitrator, service of the copy of the claim petition, service of the notice of commencement of arbitration proceedings, the procedure adopted by the arbitrator are all issues concerning the merits of the challenge made by the Petitioner under section 34 of the Act and are left open.
34. List before the roster bench for directions on 31.05.2018.
35. Order Dasti under signatures of Court Master. MAY 28, 2018/HJ SANJEEV SACHDEVA, J