Shyam Snder Maheshwari (Huf) v. M/S Garg & Company

V.B.GUPTA, J. rb

* HIGH COURT OF DELHI : NEW DELHI FAO No.194/2006 & CM No.10446/2006 % Judgment reserved on: 11th September, 2009 Judgment delivered on: 15th October, 2009 Sh. Shyam Sunder Maheshwari (HUF) Through its Karta Mr. Shyam Sunder Maheshwari Prop. M/s. Shyam Sunder Maheshwari 4664-65, Mahavir Bazar, Cloth Market, Delhi-110006. ….Appellant Through: Mr. Ramesh Chandra, Sr. Adv. with Ms. Geeta Mehrotra, Adv. Versus M/s. Garg & Company, Though its Proprietor, Sh. Kamal Kumar, Shop No.845, Karta Mahesh Dass, Nai Sarak, Chandni Chowk, New Delhi-110006. ….Respondents. Through: None. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. This appeal has been filed by appellant under Section 37 of Arbitration and Conciliation Act, 1996 (for short as "Act") against order dated 22nd May, 2006 passed by Additional District Judge, Delhi. 2. Appellant filed a claim before Arbitrator regarding recovery of money for goods supplied to respondent. Respondent did not participate in the proceedings and ex-parte award was passed on 27th April, 2005. Intimation of the same was given to respondent, by Arbitrator on 9th May, 2005 by registered AD. Application under Section 34 of the Act, for setting aside the award, was filed by respondent on 27th October, 2005 only i.e. clearly beyond the period of limitation. 3. Trial court vide impugned order modified the award and awarded interest @ 6% per annum on the cheque amount from the date of notice i.e.10th July, 2004 till realisation, whereas Arbitrator awarded interest @ 18% per annum. 4. On 28th May, 2009, counsel for respondent stated before this Court that the principal amount was Rs.1,49,353/- and in order to settle the matter, respondent is ready to pay equivalent to that amount as interest. Appellant refused to accept the same and matter was renotified for 24th August, 2009 for hearing. 5. On 24th August, 2009, only counsel for appellant appeared, while there was no appearance on behalf of respondent. Matter was admitted and ordered to be listed in due course. 6. On 11th September, 2009, when it came up for hearing, only counsel for appellant appeared, while there was no appearance on behalf of respondent. Under these circumstances, arguments advanced by learned counsel for appellant have been heard. 7. It is contended by learned counsel for appellant that trial court wrongly held that petition under Section 34 of the Act, filed by respondent is within time. The same was filed on 27th October, 2005, i.e. clearly beyond the period of limitation. 8. Appellant filed the claim before Arbitrator, prior to filing of complaint under Section 138 of Negotiable Instruments Act. On the date, when award was passed, complaint case was pending and was adjourned to 28th May, 2005 for making the payment. The same was finally disposed of on 19th November, 2005. 9. It is contended that proceedings under Negotiable Instruments Act and those in Arbitration, are entirely separate and distinct proceedings and one has no bearing or relevance on the other. 10. Since objections filed by respondent are time barred, the same are not maintainable. In support, learned counsel referred a decision of Supreme Court, Union of India v. Popular Construction Co., AIR 2001 Supreme Court 4010. 11. There is no dispute about principles of law laid down in M/s. Popular Construction Company (Supra), that time limit prescribed under Section 34 of the Act, is absolute and unextendable. This judgment is not applicable to the facts of the present case since in the case in hand, the respondent has paid the entire amount and Arbitrator was not aware of these facts which are apparent from the record of this case. 12. There is no doubt that appellant has concealed the fact about compromise made in the court of Metropolitan Magistrate from the Arbitrators. In the statement o