Umeshwar Pandey - (1.) -Heard Sri Ranjit Saxena, learned counsel for the revisionist and Sri R. N. Singh, learned senior advocate assisted by Sri Satrughan Yadav, appearing on behalf of the opposite parties.
(2.) THIS revision under Section 115 of the Code of Civil Procedure is filed against the order dated 31.10.2006 passed by the District Judge, Gautam Budh Nagar whereby, the objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called as the Act) have been rejected treating the same as barred by limitation. An ex parte arbitral award was made on 25.8.1999 between the parties against which the revisionist-applicant moved the District Judge with her objections under Section 34 of the Act on 28.11.2000. Against that a preliminary objection from the side of the other party was filed stating that the objections were submitted under Section 34 of the Act much after the expiry of the period of limitation provided for that purpose under sub-section (3) of Section 34. From the date of presentation of the objections (28.11.2000) it was obvious that the objections were presented after the expiry of a period of about 1 year and 3 months whereas, the aforesaid sub-section (3) of Section 34 of the Act provides a period of limitation of only 3 months + 30 days. The court below after having considered the submissions made before it by the parties counsel found that since the service of award upon the revisionist was presumed to have been effected by refusal on 30.11.1999, the objections were beyond time and thus could not be entertained. Accordingly, those objections have been rejected at as barred by limitation. Learned counsel appearing for the revisionist has submitted that in fact there was no service of the award at all upon the petitioner and since he got the copy of the award only during the course of execution proceeding of the said award on 11.10.2006, the objections were presented immediately thereafter on 28.11.2000 which is well within time as prescribed under sub-section (3) of Section 34. The service of the award by refusal as reported upon the registered envelope by the Postman is actually something which had been manoeuvred by the opposite party. In fact the envelope was never brought to the petitioner. The learned counsel for the revisionist in support of the aforesaid argument has referred the case law of Union of India v. Tecco Trichy Engineers and Contractors, (2005) 4 SCC 239 : 2005 (2) AWC 1416 (SC).
(3.) REPLYING to the aforesaid submissions made on behalf of revisionist learned senior advocate Sri R. N. Singh, appearing on behalf of opposite party has tried to emphasize that the court below while presuming the service of the award upon the revisionist under Section 114 of the Evidence Act has not committed any illegality and the provisions of sub-section (3) of Section 34 of the Act do not permit the Court to extend the period of limitation more that what has been provided therein. It is not disputed that the award was made on 25.8.1999 by the arbitrator and the copy of the award was sent by registered post to the respective parties. It is also not disputed that the copy of the award was not personally served upon the revisionist. Its service has been presumed by refusal. It is important to note in this context itself that this award itself is an ex parte award and it involves huge stake for the parties. Therefore, the main question which is involved for the decision here is as to what would be the effective date on which the appellant actually received the arbitral award from which the period of limitation should be treated to commence for the purposes of making an application by way of objections under Section 34 of the Act. The statement of the Postman who has made endorsement of refusal of the petitioner upon the envelope is very important in this context. In the impugned order of the District Judge the Court has presumed the presumption of service upon the petitioner w.e.f. 30.8.1999, whereas the endorsement as proved by the Postman in his statement (Annexure-4 to the supplementary-affidavit) is of a later date, i.e., 31.8.1999. It appears that in the present ex parte award which is quite adverse to the interest of the revisionist, if at all was taken to him for delivery by the Postman, there was absolutely no occasion for him to refuse acceptance of the same. In the aforesaid case of Union of India (supra) the Hon'ble Apex Court in para 8 of the judgment has observed as below : "The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be "received" by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33 (1), an application for making an additional award under Section 33 (4) and an application for setting aside an award under Section 34 (3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings." ;