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Sharda Agro Agency v/s Exclusive Commodities Limited

    Decided On, 07 December 2009
    At, High Court of Judicature at Bombay
    For the Petitioner: P.N. Mahajan with Vijay Singh Thakur, Advocates. For the Respondents: Ms. Krupa K. i/b S.K. Jain and Associates, Advocates.

Judgment Text

1. The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act), thereby challenged the award dated 17th April, 2006, but as there is a delay as contemplated under Section 34 (2) of the Arbitration Act, the Notice of Motion is taken out for condonation of delay of 9 / 14 days in filing Arbitration Petition as claimed to have received a certified copy of the award on 10th December, 2008.

2. Admittedly, the Petitioner applied on 03rd December, 2008. The Petition could not be filed within three months because of default on the part of the Registered Clerk and ultimately, the Petition was filed on 21st March, 2009. There was no application for condonation of delay filed on that time.

The relevant facts are as under:

3. An agreement dated 14th September, 2004 was entered into between the parties for certain commodities. The Petitioner had given in writing the personal, the residential and the business details.

4. There arose dispute between the parties. Therefore, pursuant to the Arbitration clause, the matter was referred to National Commodities and Derivatives Exchange Limited (the Tribunal). The Petitioner never appeared before the Tribunal though served on the address provided and/or available on the record. The sole Arbitrator has passed the award on 17th April, 2006 at Mumbai being agreed place of the arbitration.

5. As there was no challenge to the award within limitation, the Respondent filed an Execution Case No. 4B/2008, at Mumbai Court. The Respondent got transfer the same for Execution at District Court, Itarsi, (M.P.). The Petitioner has full knowledge of the said proceedings. The Petitioner appeared before the Executing Court and sought adjournments from time to time.

6. In the present Arbitration case, the claimants / Respondents have filed an affidavit dated 11th May, 2007 mentioning about the transfer of award alongwith certificate under Order XXI, Rule 6 of Civil Procedure Code (CPC) to Itarsi Court, at (M.P.) for the Execution and the same is pending there. It is also stated that the award was duly served on the Respondent by a Registered Post with acknowledge at the postal address so provided. It is also stated that the registered copy returned with the remarks "No claim" and therefore, returned to sender. The same postal receipt and acknowledgment / AD were annexed as Exhibit 1 to the said affidavit. It is not in dispute. It is therefore clear that the Petitioner was fully aware of the proceedings including the affidavit whereby it is specifically mentioned about the sending of award upon the address available to the Petitioner.

7. As per the General Clauses Act, Section 26 / 27 and even otherwise, if the party not claims such envelop / packet send by the postal department, unless proved otherwise, it is a good service. Whether this amounts to receipt of the award. The learned counsel appearing for the Petitioner has strongly relied on Section 34 (3) of the Arbitration Act and contended that knowledge of such award is immaterial. The requirement is the ?receipt of the Arbitral Award?. Therefore, the Petition so filed is well within the ambit of Section 34 (3) and definitely within 120 days from the actual receipt of the Arbitral Award.

8. Normally, the requirement of receipt of the Arbitral Award as contended need no discussion as provisions are clear. However, considering the peculiarity of the present case where the Respondents sent the award and not by the Arbitrator by Registered Post, but the same was not claimed by the Petitioner. The section no where debar the concerned attending parties to send the Arbitral Award to other side, as none present before the Arbitral Tribunal. It is not the case of the Petitioner that they had refused and/or not claimed the award because it was sent by the party. There is no serious dispute even to the contents of the said Affidavit dated 11th May, 2007, as the same was filed by the Respondent to support their application to transfer the same alongwith the certificate.

9. The purpose and object of the Arbitration Act, if we take note of, in that case a cooperation of both the parties is a must at all the stages. The parties having agreed for the Arbitration Clause, needs to participate in the proceeding in case of disputes. The dispute arose in the present case. Admittedly, there is a Arbitration Clause. The Petitioner for whatever the reason failed to appear before the Tribunal and inspite of knowledge of the award waited till December, 2008, and thereafter, applied for the certified copy. The award was already sent, but not claimed in the year 2007 itself by the Petitioner. The contention cannot be accepted of the Petitioner that unless the Arbitrator sent that award and the other party against whom the award is passed has not received the Arbitral Award, such party is not bound by the limitation period as contemplated under Section 34 (3) of the Arbitration Act. It will frustrate the whole arbitration purpose and object. In my view, the fact that the Arbitral Award was sent and the same was not claimed. The award is deemed to have been served. It amounts to ?receipt of the Arbitral Award.? The premium cannot be granted to the Petitioner for his own default to say that they never received the Arbitral Award and now the Petition as filed is within limitation from the receipt of the award. In my view, in the present fact and circumstances of the case, it is necessary to hold that the Petitioner has received the Arbitral Award in the year 2007 itself. The Petitioner ought to have applied for the certified copy immediately. There is nothing pointed out whey they could not apply for certified copy earlier. The word ?receipt the Arbitral Award? cannot be read and or interpreted to me

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an that the Arbitral Award must be received physically by the party in all such circumstances and it must be sent only, by the Arbitrator and not by the other party. In view of the above, I am not inclined to accept the case of the Petitioner that the present Arbitration Petition as filed is within limitation from the receipt of the certified copy on 10th December, 2008. The Petition as filed is beyond limitation of 120 days. In view of above, there is no sufficient ground / case for condonation of delay. 10. Resultantly, the Notice of Motion is dismissed. In the result Petition is also dismissed on the ground of limitation only. No costs.