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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (LODGING) NO. 307 OF 2009
WITH
NOTICE OF MOTION NO. 1702 OF 2009
IN
ARBITRATION PETITION (LODGING) NO. 307 OF 2009
Sharda Agro Agency.
ig ... PETITIONER
Vs.
Exclusive Commodities Limited. ... RESPONDENT
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Mr. P.N. Mahajan with Vijay Singh Thakur for Petitioner.
Ms. Krupa K. i/b S.K. Jain and Associates for Respondent.
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CORAM : ANOOP V. MOHTA, J.
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DATE : 07 December, 2009.
P.C.
1 The Petitioner has invoked Section 34 of the Arbitration and
Conciliation Act, 1996 (for short, the Arbitration Act), thereby challenged
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the award dated 17 April, 2006, but as there is a delay as contemplated
under Section 34 (2) of the Arbitration Act, the Notice of Motion is taken
out for condonation of delay of 9 / 14 days in filing Arbitration Petition as
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claimed to have received a certified copy of the award on 10 December,
2008.
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rd
2 Admittedly, the Petitioner applied on 03 December, 2008.
The Petition could not be filed within three months because of default on
the part of the Registered Clerk and ultimately, the Petition was filed on
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21 March, 2009. There was no application for condonation of delay filed
on that time.
The relevant facts are as under :
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An agreement dated 14 September, 2004 was entered into
between the parties for certain commodities. The Petitioner had given in
writing the personal, the residential and the business details.
4 There arose dispute between the parties. Therefore,
pursuant to the Arbitration clause, the matter was referred to National
Commodities and Derivatives Exchange Limited (the Tribunal). The
Petitioner never appeared before the Tribunal though served on the
address provided and/or available on the record. The sole Arbitrator has
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passed the award on 17 April, 2006 at Mumbai being agreed place of
the arbitration.
5 As there was no challenge to the award within limitation, the
Respondent filed an Execution Case No. 4-B/2008, at Mumbai Court.
The Respondent got transfer the same for Execution at District Court,
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Itarsi, (M.P.). The Petitioner has full knowledge of the said proceedings.
The Petitioner appeared before the Executing Court and sought
adjournments from time to time.
6 In the present Arbitration case, the claimants / Respondents
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have filed an affidavit dated 11 May, 2007 mentioning about the transfer
of award alongwith certificate under Order XXI, Rule 6 of Civil Procedure
Code (CPC) to Itarsi Court, at (M.P.) for the Execution and the same is
pending there. It is also stated that the award was duly served on the
Respondent by a Registered Post with acknowledge at the postal
address so provided. It is also stated that the registered copy returned
with the remarks “No claim” and therefore, returned to sender. The same
postal receipt and acknowledgment / AD were annexed as Exhibit -1 to
the said affidavit. It is not in dispute. It is therefore clear that the
Petitioner was fully aware of the proceedings including the affidavit
whereby it is specifically mentioned about the sending of award upon the
address available to the Petitioner.
7 As per the General Clauses Act, Section 26 / 27 and even
otherwise, if the party not claims such envelop / packet send by the
postal department, unless proved otherwise, it is a good service.
Whether this amounts to receipt of the award. The learned counsel
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appearing for the Petitioner has strongly relied on Section 34 (3) of the
Arbitration Act and contended that knowledge of such award is
immaterial. The requirement is the “receipt of the Arbitral Award”.
Therefore, the Petition so filed is well within the ambit of Section 34 (3)
and definitely within 120 days from the actual receipt of the Arbitral
Award.
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Normally, the requirement of receipt of the Arbitral Award as
contended need no discussion as provisions are clear. However,
considering the peculiarity of the present case where the Respondents
sent the award and not by the Arbitrator by Registered Post, but the same
was not claimed by the Petitioner. The section no where debar the
concerned attending parties to send the Arbitral Award to other side, as
none present before the Arbitral Tribunal. It is not the case of the
Petitioner that they had refused and/or not claimed the award because it
was sent by the party. There is no serious dispute even to the contents
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of the said Affidavit dated 11 May, 2007, as the same was filed by the
Respondent to support their application to transfer the same alongwith
the certificate.
9 The purpose and object of the Arbitration Act, if we take note
of, in that case a co-operation of both the parties is a must at all the
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stages. The parties having agreed for the Arbitration Clause, needs to
participate in the proceeding in case of disputes. The dispute arose in
the present case. Admittedly, there is a Arbitration Clause. The
Petitioner for whatever the reason failed to appear before the Tribunal
and inspite of knowledge of the award waited till December, 2008, and
thereafter, applied for the certified copy. The award was already sent, but
not claimed in the year 2007 itself by the Petitioner. The contention
cannot be accepted of the Petitioner that unless the Arbitrator sent that
award and the other party against whom the award is passed has not
received the Arbitral Award, such party is not bound by the limitation
period as contemplated under Section 34 (3) of the Arbitration Act. It will
frustrate the whole arbitration purpose and object. In my view, the fact
that the Arbitral Award was sent and the same was not claimed. The
award is deemed to have been served. It amounts to “receipt of the
Arbitral Award.” The premium cannot be granted to the Petitioner for his
own default to say that they never received the Arbitral Award and now
the Petition as filed is within limitation from the receipt of the award. In
my view, in the present fact and circumstances of the case, it is
necessary to hold that the Petitioner has received the Arbitral Award in
the year 2007 itself. The Petitioner ought to have applied for the certified
copy immediately. There is nothing pointed out whey they could not
apply for certified copy earlier. The word “receipt the Arbitral Award”
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cannot be read and or interpreted to mean that the Arbitral Award must
be received physically by the party in all such circumstances and it must
be sent only, by the Arbitrator and not by the other party. In view of the
above, I am not inclined to accept the case of the Petitioner that the
present Arbitration Petition as filed is within limitation from the receipt of
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the certified copy on 10 December, 2008. The Petition as filed is beyond
limitation of 120 days. In view of above, there is no sufficient ground /
case for condonation of delay.
10 Resultantly, the Notice of Motion is dismissed. In the result
Petition is also dismissed on the ground of limitation only. No costs.
[ ANOOP V. MOHTA, J ]
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