Shri Munavar Khan vs M/s Magma Leasing Ltd.

Valmiki J Mehta, J.—The challenge by means of this First Appeal u/s 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ''the Act'') is to the impugned order of the Court below dated 21.7.2004 which dismissed the objections u/s 34 of the Act as being barred by time.

Though the impugned order is not too detailed and refers to the fact that Award was passed on 10.7.2001 and the objections were filed on 19.9.2003 and therefore are barred by time and no application can lie u/s 5 of the Limitation Act, 1963 though the same was said to be filed. A reference is made to the decision of the Supreme Court in the case of Union of India Vs. M/s Popular Construction Co., to hold that there is no provision for condonation of delay qua objections u/s 34, though the Court below has wrongly given the citation as 2001 (7) SCC 354.

To satisfy myself as to whether the objections are filed within time or not, I have gone through the original arbitration record. The Award in this case was passed against the Appellant/principal borrower on 10.7.2001 for an amount of Rs. 81,749.77 with interest. As per the arbitration record, a copy of this Award was sent to the Appellant by registered post on 25.7.2001 and as per the report of the postal department there is an endorsement of refusal to receive this notice on 31.7.2001. I may note that the Appellant has addressed letters to the Arbitrator in the arbitration proceedings when earlier notices by the Arbitrator were sent to the Appellant at the address to which the Award was sent vide registered post on 25.7.2001. Therefore, in terms of Section 3 of the Act, once the Award has been sent at the correct address, the Award is deemed to be served on the Appellant, more so in the facts of the case where there is an endorsement of refusal to receive the registered post article on 31.7.2001.

Once the Award is deemed to be served on 31.7.2001, the objections ought to have been filed u/s 34 of the Act on or before 30.11.2001, however admittedly, the objections were filed only on 19.9.2003 and which are thus hopelessly barred by limitation. I take note of the malafides of the Appellant in alleging that the Arbitrator, who is a retired Judge of this Court, has manipulated in sending of the Award and which is so stated in the application u/s 5 for condonation of delay, and though there are none in view of the aforesaid facts. Such sharp practices need to be deprecated in view of the endorsement of the postal department with respect to the Appellant refusing to receive the copy of the Award on 31.7.2001.

In view of the above, there is no merit in the appeal, which is accordingly dismissed, leaving the parties to bear their own costs.