Court appointed to condone delay in filing a petition to set aside an ex-parte arbitral award. Held that limitation runs from receipt of signed award; petition deemed within time. Application disposed of by listing the petition.
Application to condone delay is disposed of by directing registry to list the original petition.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION)
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019
THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY
A. No.2043 of 2017
in O.P. Diary. No.4289 of 2017 In the matter of Arbitration and Conciliation Act 1996 and In the matter of Pradeep Kumar and Mr.Ranbir Singh and in the matter of arbitration agreement dated 18.04.2013 J.N.N.MATRICULATION SCHOOL Rep.by its Chairman, Usha Garden, 90, Kannigaipair, Uthukottai Taluk, Thiruvallur-601 102, Chennai. ..Applicant/Petitioner -vs1. M/S.EDUSMART SERVICES PRIVATE LIMITED, L-74, Mahapalpur Extension, New Delhi-110037. Rep.by its Authorised Representatives Mr.S.Mano. S/o.Subramani 2. M/S.EDUCOMP SOLUTIONS LIMITED, 1211, Padma Tower-1, 5,Rajendra Palace, New Delhi-110008. Rep.by its Authorised Representatives Mr.S.Mano. S/o.Subramani .. Respondents/Respondents
Application praying that this Hon'ble Court be pleased to condone the delay of 378 days in filing this Original Petition to set aside the Exparte award dated 19.10.2015 passed in ARB/SS/173/2015.
This application coming on this day before this court https://hcservices.ecourts.gov.in/hcservices/ for hearing, the court made the following order:
Application No.2043 of 2017 is filed to condone the
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delay of 378 days in filing this O.P. to set aside the exparte award dated 19.10.2015.
2.By an earlier order dated 16.09.2019, the learned Arbitrator was directed to submit the original records relating to the arbitration proceedings before this Court on or before 30.09.2019. However, the said order copy could not be served on the learned Arbitrator and was returned with an endorsement “No such person in this address”. Therefore, the present application is being proceeded with without the records from the learned Arbitrator.
3.The learned counsel for the applicant submitted that after the appointment of the sole arbitrator, the petitioner received notice on 31.12.2014 and upon receipt of the notice, filed the petition under Sections 14 and 15 of the Arbitration Conciliation Act,1996 in order to set aside the said appointment. He further submitted that notice was ordered in the said petition on 12.08.2016. Thereafter, he submits that the petitioner did not receive notice from the Arbitral Tribunal, and in fact, did not receive the impugned ex-parte Arbitral award dated 19.10.2015 also.
4.The contention of the learned counsel for the applicant/petitioner is that the petitioner received notice in EP.No.210 of 2016 and entered appearance in the said proceedings on 11.11.2016. After entering appearance in the
said EP, the petitioner became aware of the impugned arbitral award. Thereafter, the present OP.D.No.4289 of 2017 was presented on 31.01.2017.
5.The learned counsel for the applicant/petitioner relied upon the judgement of the Hon'ble Supreme Court in the case of Benarsi Krishna Committee and others Versus Karmyogi Shelters Private Limited reported in (2012) 9 SCC 496 wherein, it was held that the receipt of signed copy of the Arbitral award by the party, as per Section 31(5) of https://hcservices.ecourts.gov.in/hcservices/ the Arbitration and Conciliation Act, is crucial for the purpose of computing the period of limitation.
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6.The submissions of the learned counsel for the applicant/petitioner were considered. In this regard, it is relevant to note that the Hon'ble Supreme Court held both in Union of India V. Tecco Trichy Engineers and Contractors (2005) 4 SCC 239 and in the State of Maharashtra V. ARR Builders Pvt., Ltd., (2011) 4 SCC 616 that, on a conjoint reading of Section 31(5) and Section 34(3) of the Arbitration Act, the limitation period would commence only from the date when a signed copy of the award is delivered to the party by the Arbitral Tribunal. In this case, the petitioner has contended that the signed copy was not received from the Arbitral Tribunal, In spite of sending notice to the learned arbitrator, the records were not received on account of change of address of the learned Arbitrator.
7.Therefore, for the purposes of deciding the
maintainability of the petition, one has to proceed on the basis of the averments in the petition and in the application. As stated earlier, it is clear from the averments that the signed copy was not received from the Arbitral Tribunal. When the law laid down by the Hon'ble Supreme Court is examined in the factual context, it has to be concluded, for maintainability purposes, that the petition has been filed within time.
8.Therefore, this application is disposed of by directing the Registry to number and list OP.D.No.4289 of 2017, if it is otherwise in order.
Sd/.S.K.R.J. 13.11.2019
//Certified to be a true copy//
Dated this the th day of 2019.
SU./20.11.2019 COURT OFFICER
From 25.09.2008 th e Registry is issuing certified https://hcservices.ecourts.gov.in/hcservices/ copies of the Order/Judgment Decree in this format.
2 issues framed by the court
Whether the delay in filing the original petition to set aside the ex-parte arbitral award is condonable.
Whether the limitation period commences from the date of service of notice or receipt of a signed copy of the award.
Colour shows how this judgement treated each authority
Benarsi Krishna Committee and others Versus Karmyogi Shelters Private LimitedRelied on¶14
(2012) 9 SCC 496 · Who else cites this
Union of India V. Tecco Trichy Engineers and ContractorsRelied on¶15
(2005) 4 SCC 239 · Who else cites this
State of Maharashtra V. ARR Builders Pvt., Ltd.Relied on¶15
(2011) 4 SCC 616 · Who else cites this
4 provisions across 1 enactments
J.N.N. Matriculation School Rep. by its Chairman
M/S. EduSmart Services Private Limited
M/S. EduComp Solutions Limited
Senthil Kumar Ramamoorthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
