Food Corporation of India v. M/S Shiva Rice Mills & Ors

RAJIV SAHAI ENDLAW, J. MAY 02, 2014 pp

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 2nd May, 2014. + FAO(OS) 72/2014, CM No.4467/2014 (of the appellant u/S 151 CPC and Section 37 of Arbitration Act for stay) & CM No.4468/2014 (of the appellant u/S 151 CPC & Section 37 of Arbitration act for stay). FOOD CORPORATION OF INDIA ..... Appellant Through: Mr. Sukumar Pattjoshi, Sr. Adv. with Mohan Lal Sharma & Mr. K. Mathur, Advs. versus M/S SHIVA RICE MILLS & ANR ..... Respondents Through: Mr. A.S. Mathur, Adv. for R-2. AND + FAO(OS) 73/2014 FOOD CORPORATION OF INDIA .... Appellant Through: Mr. Sukumar Pattjoshi, Sr. Adv. with Mohan Lal Sharma & Mr. K. Mathur, Advs. versus M/S SHIVA RICE MILLS & ORS ..... Respondents Through: Mr. A.S. Mathur, Adv. for R-2. CORAM :- HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. FAO(OS) No.72/2014 under Section 37 of the Arbitration & Conciliation Act, 1996 impugns the judgment dated 20th November, 2013 of the learned Single Judge of this Court allowing OMP No.204/2012 preferred by the respondent no.1, under Section 34 of the said Act for setting aside of the arbitral award dated 15th June, 2011 of the respondent no.2 Indian Council of Arbitration and remitting the matter to the arbitrator for carrying out a de novo adjudication and further observing that the respondent no.2 will take a decision with regard to the contention of the appellant qua fee payable for such remitted proceedings. 2. It was the contention of the appellant before the learned Single Judge that OMP No.204/2012 filed by the respondent no.1 under Section 34 supra was beyond the time prescribed for filing thereof under Section 34(3) of the Act. It was argued that the respondent no.2 had dispatched the award to all the concerned parties under cover of letter dated 20th June, 2011, by Registered Post on 28th June, 2011 and a presumption should be drawn under Section 27 of the General Clauses Act, 1897 that the respondent no.1 had received a signed copy of the award; that since the appellant had received the award by the Registered Post, there was no reason why the respondent no.1 would not have received the same; that if the limitation for filing the petition under Section 34 were to be calculated from June, 2011 then the petition filed by the respondent no.1 was barred by time. 3. The learned Single Judge, in the impugned judgment, held that the presumption under Section 27 supra as also under Section 114(f) of the Indian Evidence Act,1872 of such service is rebuttable; that the respondent no.1 had clearly stated that it had received the signed copy of the award only on 19th December, 2011; that an affidavit to the said effect of the partner of the respondent no.1 was also filed; that it was also the argument of the respondent no.1 that the respondent no.1 became aware of the award only upon notice being issued and served upon the respondent no.1 in the appellant's petition also under Section 34 of the Act, being OMP No.796/2011 being served upon the appellant. The learned Single Judge found that the notice of OMP No.796/2011 had been served on the respondent no.1 in the first week of December, 2011 and held that it was thus quite possible that the respondent no.1 had knowledge of the award only then and the petition, being OMP No.204/2012, was within time from the said date. Another reason given is, that the appellant did not traverse the averments of the respondent no.1 in the petition, of having received copy of the award only on 19th December, 2011. Reliance was placed on V.N.Bharat Vs. Delhi Development Authority (2008) 17 SCC 321 laying down that where presumption of such service is denied, the onus of proving that the service was indeed so effected goes back on the person who is so asserting and in the absence of any such evidence, it has to be held that such service had not been effected. It was thus held by the learned Single Judge that there was nothing to show that the respondent no.1 had been served with the signed copy of t