Continental Telepower Industries Ltd. vs Union of India (UOI) and Others

Rajiv Sahai Endlaw, J.—The OMP has been preferred u/s 34 of the Arbitration Act, 1996 with respect to the arbitral award dated 26th November, 2001 allowing part of the claims of the petitioner against the respondent Union of India and rejecting other claims; objection is informed to be taken to claims disallowed. I.A. No. 7396/2002 has been filed u/s 34(3) of the Act for condonation of delay in filing the OMP. It is the case of the petitioner that the delay in filing the OMP is of not more than 30 days and hence notwithstanding the judgment of the Supreme court in Union of India Vs. M/s Popular Construction Co., the application lies.

It is not disputed that the arbitrator vide letter dated 26th November, 2001 to all concerned published the arbitral award and forwarded the same. It is the case of the petitioner that though the said letter dated 26th November, 2001 was received by the petitioner but the copy of the award enclosed therewith was a photocopy though also containing the photocopy of the signatures of the arbitrator on the original award. It is further the case of the petitioner that the said letter must have been received by it within a week or so of 26th November, 2001; the petitioner addressed a letter dated 24th December, 2001 to the arbitrator stating that the petitioner was required to file a copy of the award for execution thereof and as such required an ink signed copy of the award and not a photocopy; arbitrator was requested to issue an ink signed copy of the award to the petitioner. The issuance of the said letter by the petitioner to the arbitrator and the service thereof on the arbitrator is borne out from the arbitral record received in this court. However, the said arbitral record also contains a copy of the letter dated 31st December, 2001 of the arbitrator to the petitioner in response to the letter dated 24th December, 2001 aforesaid and enclosing therewith an ink signed copy of the award. The Counsel for the petitioner, on attention being invited to the same denies that the said letter or the ink singed copy was of the award was received by the petitioner in pursuance thereto. On further inquiry, the Counsel for the petitioner states that the receipt of the said letter has not been denied on affidavit at any place.

It is further the case of the petitioner that the petitioner sent yet another letter dated 26th March, 2002 to the arbitrator stating that the petitioner was still awaiting for an ink signed copy of the award and again requesting for the same; that the ink signed copy was in response thereto delivered by the arbitrator to the bearer of the said letter on 11th April, 2002. The said fact is also borne out from a copy of the letter dated 26th March, 2002 on the arbitral record and the endorsement thereon of the representative of the petitioner of having received the ink signed copy on 11th April, 2002.

The Counsel for the petitioner has contended that u/s 31(5) of the Act "a signed copy" of the arbitral award is required to be delivered to each party. It is contended that the "signed copy" therein means ink signed copy and thus the period of limitation of three months, in Section 34(3) of the Act for filing of a petition u/s 34(1) of the Act commencing "from the date on which the party making the application had received the arbitral award" would commence running from 11th April, 2002 only. It is thus contended that the delivery earlier of photocopy of the award by the arbitrator to the petitioner has to be ignored and is of no avail. It is further the case of the petitioner that the award published by the arbitrator was not stamped and as such the petitioner after receiving the ink signed copy of the award on 11th April, 2002, on 15th April, 2002 filed the same with the Collector of Stamps for stamping and the stamped award was delivered to the petitioner only on 19th April, 2002. The petitioner claims to have thereafter on or about 26th April, 2002 filed Execution No. 126/2002 in this court of the part of the award in its favour.

The Counsel for the petitioner contends that the time of three months u/s 34(3) of the Act, w.e.f. 11th April, 2002 would expire on 11th July, 2002 and to the said time further five days from 15th April, 2002 to 19th April, 2002 taken in stamping of the award have to be added.

It is further the case of the petitioner that though the petition u/s 34(1) of the Act was ready for filing on 12th July, 2002 as borne out from the affidavit in support thereof attested on 12th July, 2002, but the same was erroneously and due to mistake of the clerk of the Counsel for the petitioner filed along with the process fee filed by the said clerk in another matter before the Supreme Court. The petitioner further contends that the petition u/s 34(1) was ultimately traced out in the Registry of Supreme Court and delivered back to the petitioner on 13th August, 2002 and was thereafter filed in this court on 16th August, 2002, 15th August, 2002 being a holiday.

Attention in this regard is invited to Section 12(4) of the Limitation Act providing for exclusion of the time taken in obtaining copy of the award, in computing the period of limitation for an application to set aside an award. Reference is also made to Sections 13 & 15 of the Stamp Act. It is thus contended that if the said five days are to be added, the limitation of three months would expire on 16th July, 2002 and further 30 days therefrom shall expire on 15th August, 2002.

The Counsel for the petitioner has in this regard also relied upon Hindustan Construction Company Ltd. Vs. Union of India (UOI)., wherein the Supreme Court had interpreted Section 14(2) of the 1940 Act also requiring signed copy of the award to be delivered. On being quizzed that why the time taken in stamping be added, as there is no requirement of the award being stamped at the stage of Section 34 of the Act as laid down by the Apex Court in M. Anasuya Devi and Another Vs. M. Manik Reddy and Others, , the Counsel for the petitioner contends that the said judgment is only on the proposition that the objection qua stamping is not entertainable at the stage of Section 34 of the Act, else it was incumbent on the petitioner to have the award stamped, only whereafter it could be executed.

The Counsel for the respondents, Union of India/BSNL has per contra contended that the submissions aforesaid made in the court today are much beyond the content of the application for condonation of delay which merely is on the ground of the papers having been wrongly filed. The Counsel has also pointed out that the petitioner had on or about 15 February, 2002 filed a Caveat Petition in this court against the anticipated objections of the respondent Union of India to the said award. A copy thereof has been handed over in the court. It is further contended that the Bharat Sanchar Nigam Ltd. successor of Department of Telecommunication, Union of India had in fact preferred a petition u/s 34 of the Act with respect to the same award which came to be registered as OMP No. 83/2002 and was disposed of vide order dated 20th March, 2002 in the presence of the Counsel for the petitioner. A copy of the said order has also been handed over. He has also relied upon Popular Construction Co. (Supra).

At the outset, in my opinion the requirement in Section 31(5) of the Act is not for delivering an ink signed copy of the award. Section 34 also in fact does not require the filing of any ink signed copy of the award along with petition though the award would definitely be required by the court to appreciate the contentions with respect thereto. Hindustan Construction Co. Ltd. (Supra) cited by the Counsel for the petitioner in fact also is not a judgment on the proposition that a copy of the award bearing the original signatures of the arbitrator was required to be delivered under the 1940 Act also. The said judgment while dealing with the expression "sign" holds that the same means to writing one''s name on some document or paper in acknowledgment of execution thereof. Once the petitioner had received the photocopy of the award also bearing the photocopy of the signatures appended by the arbitrator to the original award (which perhaps may have been sent by the arbitrator to the appointing authority as is borne out from the letter dated 26th November, 2001), the acknowledgment of the arbitrator of having made/published the award is sufficiently borne out. The correspondence subsequently of the petitioner also does not show that the petitioner in any manner doubted the award to be of the arbitrator who was conducting the arbitration proceedings.

Not only so, the photocopy of the award admittedly received by the petitioner was under cover of a letter dated 26.11.2001. It is not the case of the petitioner that the said letter did not bear the signatures in original of the arbitrator. The said letter unequivocally states that what was enclosed therewith was the award in the subject arbitration case. Even if what was received as enclosure by the petitioner, to the said letter was the photocopy of the signed award, the letter under signatures in original of the arbitrator, was sufficient authentication of the photocopy of award enclosed.

Section 31(5) uses the expression "signed copy". Copy is generally understood as something different from the original. Legislature did not use the word "signed award". Thus, the arbitrator is not required to deliver to the parties arbitral award signed by the members of arbitral tribunal, as mentioned in Section 31(1) but merely a "copy" thereof. "Copy" is defined in Black''s Law Dictionary 6th Edition as "a transcript, double, imitation or reproduction of original writing...or the like". Photocopy is certainly a "copy". However, Section 31(5) qualifies "copy" with the word signed. The purpose of qualifying the word "copy" with "signed" is that there must be some authentication of the "copy". If it were to be held that the "copy" must be "ink signed" by the arbitrators, then it will not be a "copy" but be the award signed by the arbitrators. That is the only possible meaning of words "signed" and "copy" used in conjunction.

Black''s Law Dictionary 6th Edition defines signing as "affixing of one''s name to a writing/instrument for the purpose of authenticating, executing it or giving effect as one''s act."

Similar definitions are found in Shorter Oxford Dictionary 6th Edition which in fact extends the meaning to, a mark of attestation or ownership written/stamped on a document. In my view the photocopy of the award including photocopy of signatures, delivered under cover of a letter bearing signature in original of arbitrators is sufficient attestation or mark of authorship of award by the arbitrators and falls within the meaning of Section 31(5) of the Act. The Supreme court also in Hindustan Construction Co. Ltd. Supra held a copy of the award, not signed but authenticated as accurate copy to be satisfying the test of "signed copy". The said judgment also does not support the petitioners.

I also find that the legislature has while reenacting the Arbitration law made a conscious change in the provision as existing in 1940 Act. Section 14(1) of 1940 Act merely required the arbitrators to make and sign the award and to give notice in writing to parties of the making and signing thereof. There was no requirement therein as in Section 31(5) of the Act, that upon making of the award, deliver a signed copy thereof to each party to arbitration as in Section 31(5). u/s 14(2) of 1940 Act, a party to arbitration was required to request to the arbitrator to cause the award or a signed copy of it together with the arbitration record to be filed in the court, and whereafter the court was required to give notice to parties of filing of award. The award was required to be made rule of the court before being executable. However, under the 1996 Act, the award is executable as such, after limitation for filing objections with respect thereto has expired. The grounds of challenge have been considerably restricted. The law has with a view to limit the time whereafter the award becomes executable as a decree of court, has done away with the application of Section 5 of Limitation Act qua the petition for filing of award in the court. Rather by use of the expression "but not thereafter" in proviso to Section 34(3), intent is clear, not to permit the execution of an award to remain in a state of suspended animation. In my view, if it is to be held that a photocopy of a signed award delivered by the arbitrator under cover of letter signed by him in evidence of authentication thereof, is not sufficient compliance of Section 31(5) it will lead to indefinite delays in execution and in filing of petition u/s 34(3) and till when the award is inexecutable. Such an interpretation will be an impediment in expediency in arbitration matters, the purpose behind bringing about change in law.

I have recently in Aktiebolaget Volvo and Others Vs. R. Venkatachalam and Another, on an interpretation of various provisions of CPC held that Order 7 Rule 14 and Order 8 Rule 1A requiring filing of documents do not mean the original document and it is open to the parties to, in compliance thereof, file copies/photocopies of the documents. The requirement to "produce" as distinct from "file" the original document for inspection is only at the stage of admission/denial or tendering documents into evidence. In that context the definition of a document in Section 3 of Indian Evidence Act was also noted as including words printed, lithographed or photographed.

The Apex court has been extending the meaning of primary as well as secondary evidence. It has been held in Prithi Chand Vs. State of Himachal Pradesh, that the carbon copy of the medical certificate bearing also the carbon copy of the signatures appended by the doctor on the original is primary evidence within the meaning of Section 62 of the Evidence Act and the judgments of the courts below holding otherwise were set aside. Similarly, in Y.N. Rao v. Y.V. Lakshmi 1991 RLR (SC) 367 a photocopy of document has been held to be a secondary evidence within the meaning of Section 63 of the Indian Evidence Act. The judgment of the HC refusing to see a foreign judgment and decree for the reason of copy provided being a photocopy was set aside.

In the absence of there being any words in the Act to indicate the requirement of furnishing award in the form of primary evidence to the parties, the law if laid down so to require an ''ink signed'' award would in my opinion lead to delays and also give a handle to the unscrupulous litigants to indefinitely delay the execution of the award by contending that the signed copies of the award had not been delivered.

Law has to evolve with changing technologies. In today''s time it would be unfair to require the arbitrator to sign each and every copy of the award, especially when photocopy has become common place and is the accepted mode.

I find that the Division Bench of Allahabad High Court in UOI v. Radha Krishna 2006 (2) Arb.LR 441 has interpreted the expression ''signed copy'' in Section 31(5) as an authenticated copy duly signed to certify the genuineness of the document or in other words it may be called as the ''certified copy''.

I also find that a Single Judge of M.P. High Court in Ramesh Pratap Singh v. Smt Vimla Singh 2004(2) Arb.LR 147 also interpreting Section 31(5) and 34(3) of the Act took a view that photocopy of the award delivered by the arbitrator did not fulfill the requirement of Section 31(5) of the Act. This view was based merely on Hindustan Construction Co. Ltd. (supra) with which I have already dealt with above. I am unable to subscribe to the view of the Madhya Pradesh High Court and tend to agree, also for the reasons aforesaid, with the Division Bench of the Allahabad High Court laying down that certification of copy of award is all that is required by Section 31(5) of the Act.

I am also not inclined to believe the contention that the letter dated 31st December, 2001 of the arbitrator, copy whereof is on the arbitral record and vide which the arbitrator complied with the request of the petitioner in its letter dated 24th December, 2001, had not been received by the petitioner. The said letter appears to have been issued in the normal course and cannot be disputed. The petitioner, also in its letter dated 24th December, 2001 only indicated an intention to execute the award and did not indicate any intention to file objections to the award. The petitioner appears to have decided to file objections after dismissal of the objections of the respondent Union of India/BSNL to the award. As noticed above, there is no requirement in Section 34 of filing ink signed copy of the award therewith or of award being duly stamped before such petition can be preferred. In view of the preemptive language of proviso to Section 34(3), the petition u/s 34(1) ought to have been filed within three months of receipt of photocopy of the award.

If the limitation for filing the petition u/s 34 of the Act is to be counted from say from after a week of 26th November, 2001, then the petition is definitely barred by time and no application for condonation of delay is entertainable.

The application is therefore dismissed. Consequently, the OMP being beyond time cannot be considered and is also dismissed. However, in the facts of the case the parties are left to bear their own costs.