Shiva Construction vs Hindustan Petroleum Corporation Ltd.

Shiv Narayan Dhingra, J.—In this petition u/s 34 respondent has raised an issue that the petition was barred by limitation. The arguments have been heard only on this limited issue. The contention of the petitioner is that the petitioner was not informed about the passing of the award and no copy of the award as required u/s 31(5) of the Arbitration and Conciliation Act 1996 was sent by the Arbitrator to the petitioner and till 28th April, 2008, the petitioner was unaware of the passing of the impugned award. The petitioner learnt about the passing of the award only in reply to its RTI application when the petitioner received a letter along with copy of the award dated 18th July, 2007 on 28th April, 2008. It is submitted by the petitioner that the petition has been filed within a period prescribed u/s 34(3) counting it from 28th April, 2008 and is within limitation.

The respondent has submitted that the award was passed by the Arbitrator on 18th July, 2007 and copy of award was sent to both the parties by the Arbitrator. He submitted the documents of the petitioner itself show that the petitioner was very much aware of the award and plea of the petitioner that he learnt about the award only on 28th April, 2008 was false. The respondent pointed out to a letter dated 5th January, 2008 written by attorney of the petitioner which reads as under:

Dear Sir,

You have not furnished the documents to Anguri Devi, the Partner of the firm, as per the requirements of the RTI Act, and you have written in the letter that you have passed an order on 18-07-2007. It is not true that you have sent copy of the arbitration proceedings.

The role of the arbitration should not biased/partial towards any one party. But it has been observed that you have been acting with partiality right from the beginning and also you have been acting controversially. Since you are in HPCL, you have been favouring HPCL which is wrong as per arbitration rules. You are once again requested to provide me a copy of the order immediately so that I can initiate subsequent legal action on this. You will be held responsible for any kind of delay.

Thanking you,

BL Bansal

The petitioner had made query about the award on 7th December, 2007 and in response to that query vide letter dated 28th December, 2007, the petitioner was informed that copy of the award has been sent by mail to the general power of attorney, Sh. Brij Lal Bansal by the Arbitrator under covering letter dated 18th July, 2007. It is after this letter that the petitioner had written a letter dated 5th January, 2008 to the respondent, corporation. The respondent, corporation again replied to the petitioner that the learned Arbitrator had sent the award to the petitioner on 18th July, 2007, but under Right to Information Act another copy of the award was being sent to the petitioner.

Counsel for the respondent argued that the petitioner deliberately had been delaying the matter. The award was sent to the petitioner, but he did not prefer objections and rather resorted to Right to Information Act and obtained another copy of the award under Right to Information Act and thereafter preferred objections. He submitted that RTI application seemed to be a plan of the petitioner because the petitioner did not file objections within time and in order to cover up this delay, he took resort to Right to Information Act.

Counsel for the petitioner, on the other hand, submitted that the petitioner was more interested in early passing of the award and approached the High Court for change of the Arbitrator since the Arbitrator was delaying the matter. An order was passed by this Court on 24th October, 2007 whereby this Court refused to change the Arbitrator and gave directions that the Arbitrator shall continue with the arbitration proceedings without further delay. This order was passed on 24th October, 2007 in presence of both the parties and in case, the respondent had been aware of the passing of award by the Arbitrator on 18th July, 2007, the respondent would have informed the Court about passing of award. The very fact that this Court was not informed about passing of the award shows that the petitioner and the respondent both were not aware of the passing of the award.

Section 34(3) provides that the application for setting aside an award can be made within 3 months from the date of which the party had received the arbitral award. So the Court has to see whether the petitioner in this case had received the arbitral award as is stated by the learned Arbitrator. For this purpose record of the Arbitrator was called and seen. A perusal of record would show that the stamp paper on which the award has been typed was purchased from the treasury on 3rd July, 2007 and was issued by the Stamp Vendor on 12th July, 2007. It is obvious that the award is not a pre-dated award. The award is dated 18th July, 2007 and on the same day, the sole Arbitrator posted the award to both the parties, i.e., the petitioner at its address of 88, Jagriti Enclave, Delhi and to the respondent at its address of Laxmi Nagar, Delhi. The Arbitrator had posted the award through courier service DTDC on 18th July, 2007 itself and the courier receipt has been pasted on record showing proof of dispatch. However, a perusal of record would show that all earlier correspondence between the parties and the Arbitrator is only through registered post with acknowledgement due. There is no proof on record to show that the courier was delivered to the respondent. The address in the courier receipt is also not complete and only Shiva Construction, Delhi-92 has been mentioned. The earlier courier receipt gives complete address of the petitioner. Under these circumstances, a doubt arises about the proper service of this award on the petitioner. This fact also fortified from the order passed by the Court on 23rd October, 2007. If either of the parties had received the award it would have been brought to the notice of the Court that the award has already been passed. Counsel for the respondent also did not inform the Court that the award had been passed by the Arbitrator. It is quite possible that the petitioner had not received the award due to incomplete address mentioned on the envelop or due to some other reason. Though, the petitioner came to know about the passing of the award in response to RTI application moved by the petitioner sometime in December but the certified copy of award was received by the petitioner only on 28th April, 2008. I therefore consider that the period of limitation will have to be counted form 28th April, 2008 and not from 18th July, 2007. If the period for filing of objections by the petitioner is counted from 28th April, 2008, the objections filed by the petitioner are within limitation. It is therefore held that objections have been filed within period of limitation.

List this matter now for arguments on maintainability of the objections on merits on 25th November, 2009.