SHRI COLONIZERS AND DEVELOPERS PVT. LTD. vs MRS. ABHA GUPTA
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.11.2023
+ O.M.P. (COMM) 214/2023
IN THE MATTER OF:
SHRI COLONIZERS AND
DEVELOPERS PVT. LTD ….. Petitioner
Through: Mr. Kirti Uppal, Senior Advocate with Mr. Raman Gandhi and Mr. Aditya Raj, Advocates.
versus
MRS. ABHA GUPTA ….. Respondent
Through: Mr Pankaj Kumar Singh and Mr Ratan Kumar Shukla, Advocates (M:9810027325).
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT (ORAL)
I.A. 11262/2023 (filed u/Sec. 31(5) of the A&C Act)
1. Respondent having taken a preliminary objection of the petition being time barred, the Court sets out to deal with the same.
2. The impugned Award came to be passed on 06.04.2018. The petitioner has filed the present proceedings under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter, referred to as A&C Act) on 31.05.2023. Petitioner has claimed that it was neither aware of the passing of the Award nor did it receive a signed copy of the same from the Arbitrator. It became aware of impugned Award for the first time only when it received summons on 01.04.2023 in the execution proceedings filed by the respondent before the Lucknow Court. On coming to know of the same, the petitioner approached the learned Arbitrator for a signed copy of the Award vide email dated 21.05.2023. However, till date, it has not received a signed copy of the Award from the learned Arbitrator. In the aforesaid backdrop, petitioner claims that petition is within limitation and by abundant caution seeks exclusion of the entire period from the date of passing of the impugned Award till filing of the present petition on 31.05.2023 by way of the captioned application.
3. Respondent seeks rejection of the petition and has referred to email dated 06.04.2018 sent by the learned Arbitrator to counsels for both the parties enclosing therewith a PDF copy of the award. The email further stated that a hard copy of the Award was being separately sent to the parties. It was further contended that the petitioner-company also received a copy of the impugned Award prior to 17.02.2023 in the execution proceeding pending before the Lucknow Court. Apart from above, the petitioner also received a copy of the Award on 20.01.2023 when it received the same at the time of recording of evidence in the allied proceedings initiated by the respondent against the petitioner under Section 138 of the Negotiable Instruments Act, 1881. Having received a copy of the Award in any of the aforesaid modes, the present petition filed on 29.05.2023 is beyond the period of extended limitation. Another contention was raised that the present application is instituted under Section 31(5) of the A&C Act and not under Section 34(3), and as such, even otherwise, the benefit of extended period of limitation is not available to the petitioner.
4. It is pertinent to note that the petitioner has categorically claimed that it neither received a copy of the impugned award either from its erstwhile counsel who had represented it in the arbitral proceedings nor from the learned Arbitrator himself. It has further claimed that on account of contractual disputes in another matter, one of its Directors was sent to judicial custody in the year 2019 and the other Directors were also on the run, on account of criminal litigation. It admits receipt of the copy of the impugned award on 20.01.2023 in the proceedings initiated under Section 138 of the NI Act by the respondent.
5. Apparently, after delivering the award on 06.04.2018, the learned Arbitrator sent an email on the same date which was duly marked to the learned counsels for both the parties. The relevant extract of email is extracted as under:
From: xxx
Date: Fri, Apr 6, 2018,10:58 AM
Subject: Arbitration – Abha Gupta Vs. Shri Colonizers and Dev. Pvt. Ltd. & Anr.
To: Abhishek Birthray
Dear All,
Please find attached herewith a scanned copy (in PDF format) of the Award dated 06.04.2018 of the Tribunal in the captioned matter. Hard copy of the same is being sent separately by post to the Parties.
Regards,
V. Negi
P.S. to xxx
6. Concededly, the said email was only sent to the learned counsels for both the parties and not to the parties. The email further states that a hard copy of the award is being sent separately. Considering the issue involved, the arbitral records were summoned. However, as per the letter/report received from the learned Arbitrator, the same were stated to be not traceable. Although the impugned award indicates that its copy was provided to the respondent however, there is no such endorsement insofar as petitioner is concerned. There is no further indication in the documents placed on record which evidences either the posting of the impugned award or its receipt by the petitioner. The respondent has also failed to produce any document on the aforesaid aspect. The email, at best, shows that a copy was sent to the petitioners counsel.
7. From above, the issues that arise for consideration are (i) whether a copy of the award served on the counsel would amount to due service under Section 31(5) of the A&C Act on the party and (ii) whether the receipt of a copy in allied proceedings would amount to due service under Section 31(5) of the A&C Act.
8. Section 31(5) of the A&C Act reads as under:-
31. Form and contents of arbitral award:
xxx
(5) After the arbitral award is made, a signed copy shall be delivered to each party.
xxx
9. A plain reading of sub-section (5) of Section 31 would show that the expression used is party. The issue whether receipt of copy of the award by partys counsel can be termed as a receipt by the party came up before the Supreme Court in Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt. Ltd.1. The Supreme Court while referring to its earlier decision in Union of India v. Tecco Trichy Engineers & Contractors2, came to the conclusion that the expression used party, as defined in Section 2(1)(h) of the 1996 Act, relates to a person who is a party to an arbitration agreement. The said definition is not qualified in any way and would not include the agent of the party to such agreement. The reference made in Section 31(5) and Section 34(2) of the 1996 Act could only mean that a party itself and not its agent, or advocate empowered to act on the basis of a vakalatnama. While negating the objection on limitation, it was thus held:
xxx
15. In such circumstances, proper compliance with Section 31 (5) would mean delivery of a signed copy of the arbitral award on the party himself and not on his advocate, which gives the party concern the right to proceed under Section 34(3) of the aforesaid Act.
16. The said provision clearly indicates that a signed copy of the award had to be delivered to the party. Accordingly, when a copy of the signed copy of the award is not delivered to the party himself, it would amount to compliance with the provision of Section 31 (5) of the Act
xxx
10. The Supreme Court in State of Maharashtra & Ors. v. Ark Builders Pvt. Ltd.3 was also seized with the issue as to when the period of limitation prescribed under Section 34 (3) of the Act would commence. It was held as under:
xxx
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.
xxx
11. Both the issues noted by this Court hereinabove, when seen in the light of the aforesaid authoritative pronouncement, would lead to the irresistible conclusion that there is no material or document on record to show that the petitioner ever received a signed copy of the award from the learned Arbitrator. The petitioner has placed reliance on its email dated 21.05.2023 to show that even when a signed copy was asked for, the same was not supplied.
12. As noted above, the petition filed on 31.05.2023 is within time from when the petitioner received copy of the award along with the summons on 01.04.2023 in the Execution Petition filed by the respondent before the Lucknow Court. There is also no merit in the respondents submission that the petitioner had received the copy of the impugned award prior to 17.02.2023 as there is no material to support the same. The respondents reliance on decision of various Coordinate Benches is of no avail, in light of the position of law expostulated by the Supreme Court. Also, the respondents contention that the captioned application has not been filed under the correct section is also of no benefit to it as the Court has to see the pith and substance of the application and not its nomenclature.
13. Accordingly, this Court is of the considered opinion that the petition is within limitation.
14. The application is allowed in the aforesaid terms.
I.A. 11264/2023
1. Let the original documents be filed within four weeks.
2. Application is disposed of.
O.M.P. (COMM) 214/2023 and I.A. 11263/2023 (Stay)
1. Issue notice.
2. Learned counsel for the respondent accepts notice.
3. Reply, if any, be filed before the next date of hearing.
4. List on 27.03.2024.
MANOJ KUMAR OHRI
(JUDGE)
NOVEMBER 10, 2023/rd
1 (2012) 9 SCC 496
2 (2005) 4 SCC 239
3 (2011) 4 SCC 616
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