- (1.) This arbitration petition is for setting aside award dated 4th July, 2017. A point of maintainability was taken at the outset on behalf of respondent. On 22nd April, 2019, Mr. Bhowmick, learned advocate appeared on behalf of respondent in this application for stay of award. He submitted, the petition for setting aside of it is not maintainable. He demonstrated from his client's affidavit- in-opposition to arbitration petition, written communication dated 4th July, 2017, enclosing the award, was personally received by petitioner's representative on 6th July, 2017. Arbitration petition was filed on 9th January, 2018. Clearly the petition was beyond time and could not be entertained. He relied on judgments of Supreme Court. Firstly, on Union of India Vs. Popular Construction Co. reported in (2001) 8 SCC 470, to paragraphs 12 and 14 to submit, 120 days was prescribed time, beyond which arbitration petition could not be entertained by Court. Secondly, on Bengal Chemists and Druggists Association Vs. Kalyan Chowdhury reported in (2018) 3 SCC 41, paragraphs 2 and 12 to submit, Popular Construction Co. (supra) was referred to. Thirdly, on Union of India Vs. Tecco Trichy Engineers and Contractors reported in (2005) 4 SCC 239, to paragraph 9 for declaration of law regarding representative of an organisation.
(2.) Today, Mr. Datta, learned advocate appears on behalf of petitioner and submits, Deputy Director of his client was the person concerned as person directly connected with and involved in the proceedings, in control of the proceedings before the Arbitrator. He submits, relation between the office or designation and the person discharging the functions is of most importance. It is only the person discharging functions of office designated Deputy Director, who would be the person directly connected with and involved in the arbitral proceedings or who can be said to have been in control of it before the Arbitrator. There was change in personnel. Hence, service upon outgoing person after having moved on to another post or designation cannot be construed as compliance with substantive provision in sub-section (5) of section 31, Arbitration and Conciliation Act , 1996. The person who was Deputy Director stood promoted to Joint Director prior to making and publication of the award. Nevertheless, the award was served on said person, who at that point of time was Joint Director and thereby not the person concerned or connected with the reference as on behalf of his client. So it is that when respondent moved in execution, new incumbent in office of Deputy Director discovered existence of the award and hastened to take steps to challenge it. Point in time of discovery is from when three months and thirty days is to be reckoned for purpose of adjudication of this point of maintainability. He also relies on Tecco Trichy Engineers and Contractors (supra), to paragraphs 7, 10 and 11. He submits, in Anil Kumar Jinabhai Patel vs. Pravinchandra Jinabhai Patel, reported in (2018) 15 SCC 178, Supreme Court, in similar facts where award-debtor had discovered existence of it on award-holder having moved in execution, said period of limitation would start only from the date when the persons not served with the award, but had discovered existence of it, got it.
(3.) Mr. Banerjee, learned advocate appears on behalf of respondent and submits, it would appear from record of appearance of 34th sitting of the reference held on 7th March, 2017 that the person, who had since got promotion to office of Joint Director, had appeared to represent respondent. The disclosure is at page 58 of his client's opposition. There was no intimation to the Tribunal regarding said person having become functus officio or had handed over charge to some other person as incumbent in the office. It is thereafter on 6th July, 2017 that, on behalf of respondent, the person all along representing it in the reference received the award on putting his signature and designation as Joint Director. On query from Court, Mr. Datta was unable to point out any disclosure to show there had been intimation given to the Tribunal or respondent regarding their internal human research management by promotions. Regarding subsequent discovery made by incumbent in the office, Court put query to Mr. Datta how there could be such late discovery when there should have been handing over of charge. It is clear that on or before 34th sitting in the reference, the person all along representing petitioner in it, stood promoted but charge was not handed over. Court is not inclined to presume that the person, though promoted and having had handed over charge, continued to represent respondent in the reference and received the arbitral award, without authority and then did nothing about it. ;