BUMI GEO ENGINEERING LTD. vs IRCON INTERNATIONAL LTD
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 332/2016
BUMI GEO ENGINEERING LTD. ….. Petitioner
Through: Mr. Aayush Agarwala, Mr. Kunj Mehra, Ms. Mallika Luthra and Mr. Nilesh Kumar, Advs.
versus
IRCON INTERNATIONAL LTD ….. Respondent
Through: Mr. Dinesh Agnani, Sr. Adv. with Ms. Leena Tuteja, Ms. Ishita Kadyan, Advs.
+ O.M.P. (COMM) 267/2017
BUMI GEO ENGINEERING LTD. ….. Petitioner
Through: Mr. Aayush Agarwala, Mr. Kunj Mehra, Ms. Mallika Luthra and Mr. Nilesh Kumar, Advs.
versus
IRCON INTERNATIONAL LTD. ….. Respondent
Through: Mr. Dinesh Agnani, Sr. Adv. with Ms. Leena Tuteja, Ms.Ishita Kadyan, Advs.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 02.07.2024
O.M.P. (COMM) 267/2017
1. In this petition, instituted by the petitioner Bumi Geo Engineering Ltd1. against the respondent Ircon International Ltd2. (referred to hereinafter as BGEL and IRCON respectively) under Section 343 of the Arbitration and Conciliation Act 19964 (the 1996 Act), the respondent IRCON has raised a preliminary objection regarding limitation.
2. With consent of learned counsel for the parties, arguments have been heard on the aspect of limitation, which is being disposed of by this order.
3. The contention of IRCON, as advanced by Mr. Dinesh Agnani, learned Senior Counsel, is that the present petition has been instituted much beyond the period of 120 days envisaged by Section 34(3) of the 1996 Act and is, therefore, barred by time.
4. As against this, BGELs submission, as urged by Mr. Aggarwala, is that, though the impugned award was passed on 12 August 2016, a copy thereof was received by the petitioner from the learned Arbitrator only under cover of a letter dated on 25 March 2017. Inasmuch as the present petition under Section 34 was filed on 30 May 2017, it is contended that it is within time.
5. IRCON has filed an affidavit in this regard on 18 August 2017, with which various documents have been annexed. Annexure 2 to the said affidavit is the letter dated 25 March 2017 from the learned Presiding Arbitrator to BGEL:
Date: 25.03.2017
To,
M/s Bumi Geo Engineering Ltd,
R/O 101, Sagar Tower,
Disst. Centre,
Janakpuri
New Delhi-110 058
Sir,
Ref: Your letter no. Nil dated 09.02.2017
Addressed to the undersigned and the other two Co Arbitrators.
Shri. Y.P.Singh, and Smt. Neelam Sanghi
1. Your letter under reference dated 08.02.2017 claimed to have been sent by Courier / Speed post was received only very recently by me.
It is surprising that the above referred letter addressed to Smt. Neelam Sanghi and Shri Y.P. Singh were also sent C/o my address, though your office is only too well aware of their addresses or you could have found their present address from suitable sources, instead of merely sending their copies of the letter also to me.
2. Vide this office covering letter No. Arb./IRCON/2 dated 12.08.2016, copy dosed for ready reference, a copy of the Award for package IIIC was also sent to you simultaneously, while sending it to the Respondent. I had instructed M/s IRCON (Respondent) personally and on my behalf to send Claimant’s copy of the award directly to your office to save time. Accordingly, they had sent the same by speed post (by Shri Kumar Ravi Shankar, Sr. Mgr. JK) to your organisation on 16.08.2016, which I am sure your office is already in receipt of. Please find attached a copy of the receipt of the said speed post in this connection.
3. Hence I cannot believe that you have not received the said Award. I strongly believe that you have received the original Award as mentioned in para 2 above, by say not later than 20.08.2018.
4. All the same, I am sending once again a copy of the award for your records; please acknowledge receipt of this letter and its enclosures.
Thanking you
Yours sincerely
Sd/-
R. Rajamani
6. Mr. Aggarwala submits that, in para 2 of the above letter, the learned Arbitrator has candidly acknowledged that he had not sent any copy of the award to his client, but has instead, decided, possibly in the interest of saving time, to effect service on the petitioner through the respondent IRCON.
7. Mr. Aggarwala submits, in the first instance, that such service is no service in the eyes of law and that service of the award, in terms of Section 31(5)5 of the 1996, has to be by the Arbitrator and not by the Arbitrator through any other person, even if it is one of the parties to the litigation.
8. Service through IRCON is, therefore, submits Mr. Aggarwala, no service in the eyes of law, even if it were to be presumed that the petitioner received the award from IRCON.
9. That said, Mr. Aggarwala submits that, in fact, no copy of the award was received from IRCON either. He has drawn attention to a photocopy of the postal receipt of the envelop wherein the impugned award is stated to have been dispatched by IRCON to the petitioner, filed by IRCON as annexure R-1 to the aforenoted affidavit.
10. Though the copy is largely illegible, Mr. Aggarwala points out that it is addressed to one Bhumi Inter Ltd., Delhi -110006, with no further addressed reflected on the postal receipt.
11. He submits that the petitioner is not Bhumi Inter Ltd. but Bumi Geo Engineering Limited and that, therefore, even if the impugned award was sent under cover of the afore-noted postal receipt, it was not sent to the petitioner and cannot be treated as having been served on the petitioner.
12. Mr. Aggarwala further submits that, according to the respondent, one Rajiv Kumar, stated to be representing the petitioner, had visited the respondent and that the respondent had handed over a copy of the impugned award to him. He also draws attention to the fact that the respondent relies on an e-mail dated 28 November 2016 addressed to rajiv@bumigrp.com.
13. Mr. Aggarwala submits that there is no person by the name Rajiv Kumar who was authorised to receive the impugned arbitral award. Nor, he submits, is rajiv@bumigrp.com the authorised e-mail ID whereunder the impugned award could have been e-mailed to the petitioner.
14. In these circumstances, Mr. Aggarwalas contention is that it was only under cover of the letter dated 25 March 2017 that the petitioner received the copy of the impugned award. Inasmuch as the present petition has been filed within three months of that date, Mr. Aggarwala submits that the petition is within time.
15. Responding to Mr. Aggarwalas contention, Mr. Dinesh Agnani, learned Senior Counsel submits that it is not the case of the petitioner, as pleaded before this court, that the arbitrator ought to have sent the award directly to the petitioner and could not have effected service on the petitioner through IRCON. Such a case, not having pleaded, he submits, cannot be urged either.
16. Apropos the service of the award through Rajiv Kumar, Mr. Dinesh Agnani disputes the petitioners contention that Rajiv Kumar was not authorised to act on its behalf, or that rajiv@bumigrp.com was not an authorised e-mail id to which the impugned award could have been dispatched. He has, in this context, drawn my attention to I.A. No. 16284/2019, which is an application which was filed by the earlier counsel representing the petitioner, seeking to withdraw his vakalatnama. He submits that the said learned counsel has filed, alongwith the said application, an e-mail, which is addressed to rajiv@bumigrp.com. This, he submits, clearly indicates that Rajiv Kumar was competent to act on behalf of the petitioner in the present proceedings.
17. Further, Mr. Agnani submits that there is nothing to indicate that the copy of the award which was forwarded to the petitioner under cover of the letter dated 25 March 2017 was a signed award.
18. Mr. Aggarwala also places reliance on para 15 of Benarsi Krishna Committee v. Karmyogi Shelters Pvt. Ltd6., para 12 of State of Maharashtra v. ARK Builders Pvt. Ltd7 and para 8 of Union of India v. Tecco Trichy Engineers & Contractors8
19. In these circumstances, Mr. Agnani submits that the petitioner is resorting to grounds which are completely unstainable on facts just so as to escape the enormous delay in filing the present petition which has been instituted almost a year after the award was passed. He submits that there is no ground whatsoever on which the delay in instituting the petition can be condoned.
Analysis
20. I have heard learned Counsel and perused the material on record. There is a plenitude of reasons why, according to me, this petition cannot be thrown out on the ground of delay.
21. In the first place, there is no question of the award being served by the Arbitrator through any third party, unless, possibly, it is with the consent of the party on whom service is sought to thus effected through proxy.
22. Though Section 31(5) does not specifically state that the service of the award has to be made by the arbitrator, there can, quite clearly, be no other reasonable way of reading the provision. It would create a situation of utter uncertainty if arbitrators are permitted to effect service of awards through persons who are not authorised to serve the awards on the addressee concerned. There is clearly no justification for the learned arbitrator to have decided to effect service on the petitioner through IRCON, even if it was done bonafide and in the interests of saving time.
23. In para 15 of Benarsi Krishna Committee, the Supreme Court has not treated service of an arbitral award even on the advocate who was representing the party as due service, and has specifically stated that service has to be effected on party itself. In para 10 of Tecco Trichy, a similar view has been adopted, in which the Supreme Court has also held that the service of the award has to be by the arbitrator.
24. This view is also echoed in para 12 of ARK Builders, the relevant portion of which reads thus:
12. The appellants are now before this court by grant of special leave. The two provisions of the Arbitration and Conciliation Act, 1996, relevant to answer the question raised in the case are Sections 31 and 34. Section 31 deals with form and contents of arbitral award; and insofar as relevant for the present provides as follows:
“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.
(2)-(4) * * *
(5) After the arbitral award is made, a signed copy shall be delivered to each party.
(6)-(8) * * *
(emphasis added)
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.
(Emphasis supplied)
25. Even in a situation in which the party may have received a copy of the award through the opposite party, the Supreme Court held, in para 14 of ARK Builders, that no service within the meaning of Section 31(5), as would galvanise the limitation for the purposes of filing of a petition under Section 34 of the 1996 Act can be said to have been effected.
26. Secondly, there is substance in Mr. Aggarwalas contention that, even through IRCON, there is no evidence of the impugned award having been served on the petitioner. The postal receipt, whereunder the award is stated to have been sent to the petitioner by registered post by IRCON, as filed by IRCON with its short affidavit, indicates that the document was sent to one Bhumi Inter Ltd. The receipt does not reflect any address at which the document was sent. In any event, the petitioner is Bumi Geo Engineering Ltd, not Bhumi Inter Ltd.
27. Equally, I am not satisfied that the handing over or emailing of a copy of the impugned award to Rajiv Kumar can be treated as service on the petitioner. There is nothing to indicate that Rajiv Kumar was authorised to act on behalf of the petitioner or to receive a copy of the impugned award. One may, in this context, once again refer to para 10 of the decision in Tecco Trichy in which the Supreme Court held that, as the Chief Engineer of the respondent in that case was the officer who was conversant with the arbitral proceedings, service of the arbitral award on the General Manager of the respondent would not constitute service. At the cost of repetition, there is nothing to indicate that Rajiv Kumar was authorised to represent the petitioner in the arbitral proceedings.
28. The mere fact that, alongwith the application seeking discharge from the present proceedings, the earlier counsel of the petitioner may have filed an e-mail addressed to rajiv@bumigrp.com does not ipso facto render Rajiv Kumar an authorised representative of the petitioner for the purposes of receipt of the arbitral award. Also, it is worthwhile to reiterate that, under Section 31(5) read with the law enunciated by the Supreme Court in the aforesaid decisions, the arbitral award has to be served on the party itself, in order to for the date of service to be treated as the starting point for computing limitation under Section 34(3).
29. Though Mr. Agnani has sought to contend that the petitioner has not taken any specific stand that the arbitrator could not have effected service of the award through IRCON, and has not pleaded to that effect, I am of the opinion that this objection cannot sustain in the facts of the present case.
30. The fact that the learned Presiding Arbitrator decided to serve the impugned award on the petitioner through IRCON is acknowledged by the learned Presiding Arbitrator himself in para 2 of the letter dated 25 March 2017, addressed by the learned Presiding Arbitrator to the petitioner. That letter has been placed on record by IRCON itself as annexure R-2 to its short affidavit dated 18 August 2017. Once the said fact has come on record in a document which was placed on record by IRCON itself, there is no requirement of the petitioner having had to again plead the same fact, before being permitted to urge it as a ground to contest the respondents plea of limitation. It is trite that admitted facts need not be pleaded.
31. For all the aforesaid reasons, I am of the considered opinion that the petitioner must be taken to have received the impugned award only under cover of letter dated 25 March 2017 and that, therefore, the present petition, having been filed on 30 May 2017, cannot be said to be barred by time. The plea of limitation, as urged by the respondent, is, therefore, rejected.
O.M.P. (COMM) 332/2016 & O.M.P. (COMM) 267/2017:
32. List both these matters for hearing on merits on 12 July 2024.
33. Both sides are directed to place on record consolidated written submissions not exceeding five pages each after exchanging copies with each other at least two days in advance of the next date of hearing and e-mail a copy thereof to the Court Master. Additionally, the learned Counsel may also place on record the duly indexed compilations of any judicial authorities on which they may seek to place reliance, after serving a copy on the other party. The written submissions filed by the petitioner should clearly state the issue in controversy in the arbitral proceedings, (ii) the findings of the learned Arbitrator claim-wise/issue-wise, to the extent the petitioner seeks to challenge the findings before this Court, (iii) the reasoning of the learned Arbitrator, claim-wise/issue-wise, depending on whether the award has been passed claim-wise or issue-wise and (iv) why this Court, within the peripheries of Section 34 of the 1996 Act, should interfere with the arbitral award.
34. It is made clear that as O.M.P. (COMM) 267/2017 is a case of 2017, it would be taken up for hearing on the next date and no adjournment would be granted.
C. HARI SHANKAR, J.
JULY 2, 2024
dsn
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1 BGEL hereinafter
2 IRCON hereinafter
3 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).
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(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 the 1996 Act hereinafter
5 (5) After the arbitral award is made, a signed copy shall be delivered to each party.
6 (2012) 9 SCC 496
7 (2011) 4 SCC 616
8 (2005) 4 SCC 239
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