M/S Rainbow Electric Supply Co v. North Delhi Power Ltd & Anr

ORDER %

26.07.2013 CM Nos.11219/2013 & 11227/2013 (exemption) Allowed, subject to all just exceptions. The applications stand disposed off. FAO(OS) 330/2013 & FAOfOS) 332/2013

¶1'The present appeals are directed against the common order of the learned Single Judge dated 7^^ February, 2013 in which he dismissedapplicationsfor condonationof delay. The petitionerfiled the presentappeal in supportof the proceedingsunder Section34 of FAO(OS)330/2013 &FAO(OS)332/2013 Page 1 the Arbitrationand ConciliationAct and challengedthe final award. Specific grounds urged in support of the applications seeking condonationofdelay were that the appellantshad not been intimated or informedofthe presentaward. Itwas urgedthat Section34 ofthe Arbitration& ConciliationAct compelledthe Arbitratorto ensurethat a notice of the award and the award itselfwas duly servedupon the concerned party.

¶2The brief facts are that the appellantsought to challengethe award dated 13* March, 2008 and 4* February,2008. The appellant urgedthat he participatedin the proceedingsbut was unawareofthe making of the award after the final hearinghad been concludedand the matter reservedfor appropriateorders/award. It was contended beforethe learnedSingleJudgethatthe appellantbecameawareofthe award only upon initiationof executionproceedingsand service of notice in those proceedingsin March, 2012. In these circumstances, thepetitionsunderSection34 werepreferredon 10* September,2012.

¶3Learnedcounselfor the appellanturgedthatthe findingsofthe learnedSingleJudgethatthe awardhad beenduly servedare in error. He emphasized that the notice of service upon the agent is not FAO(OS)330/20}3&FAO(OS)332/2013 v-considered service at all and relied upon the decision of the Supreme Court in Benarsi Krishna Committee and others v. Karmyogi Shelters Private Limited, 2002 (9) SCC 496. It was also argued that the j observationsof the learned Single Judge about due service, based on the record, are without factual support. Counsel submittedthat the pages indicated in the impugned order where said registered post/acknowledgementdue said to have been placed in fact do not reveal such fact and that in any event the same were not availableto him or noticedat the stage of inspection. At the same time, learned counsel stated that there is something on the record to indicate that a , document of India Post was on record but that was not acknowledgment of the Appellant.

¶4The learnedSingleJudge in the impugnedorderhas noticedthe contentionsoftheappellantwithregardto Section31(5)and also cited the decision in Benarsi (supra). Thereafter, the impugned order proceededto analysethe relevantfacts as follows:- i

¶12The original record oftheArbitralproceedings relating to the Arbitral Award dated 13th March, 2008 would reveal that original award was sent to the petitioner on 24th March, 2008 through registered post, which is at page No.782 of the original record of arbitrator before this Court FAO(OS)330/20I3&FAO(OS)332/2013 Page3 j which is original record of OMP No.888/2012. Similarly, perusal ofArbitral record to the award dated 4th February, 2008 would reveal that the award was received by the petitioner, which is evident from \ duly signed Postal acknowledgmentreceipt, which is at page 543 of . the original record of the Arbitral Tribunal before this Court which is subject matter of OMP No 889/2012. It is submitted that ^en during course ofarguments, thepetitioner's proxy counsel did not controvert acknowledgementof receipt. ^ ^ : OMPNo.888/2012&OMPNo.889/2012Page6of ' '

¶13Even otherwise, the record of this Court would reveal that in Execution Petition Nos.321/2011 (in relation to Award dated ISth ,March, 2008) notice was served on the judgment debtor on 31st , January, 2012 and On 19th March, 2012 counsel . entered appearances on behalf of the judgment debtor byfiling his Vakalatnama. ; :

¶14Similarly, in Execution No.320 of 2011 (in relation to award dated 4"" February, 2008), the record of this Court would reveal that notice was , r'-f" servedon thejudgmentdebtor on 17th February, ^ 2012 and thejudgment debtor entered appearances ' through his counsel on 15th March, 2012, when the ], counselfiledhis Val^latnama. ^ , 15.\It is not in dispute that both the petitions under ':Section 34 ofthe Act werefiled on 10th September, 2012: about 4 V2 years after the passing of the awards and about 6 months after the judgment debtors were served in Execution Petitions and received a copy of the Arbitral Award. Hence, despite knowledge of, the Arbitral Award, judgment debtor took no steps to file objections under Section 34 of the Act within the mandatory FAO(OS)330/2013&FAO(OS)332/2013 Page 4 and statutory period, despite entering appearances in the execution proceedings in March, 2012.

¶16Theplea that the original signed award had not been received by the judgment debtor is also of no consequences, specifically in the view that postal receipt and acknowledgment were not controverted by the petitioner. In any event, after it was served in ihe Execution Proceedings, it was for judgment debtor to take steps to obtain an original signed copy of the award, inter alia, by writing to the Arbitrator. Admittedly,no such steps have been taken till date."

¶5The Court notices that in neither appeals have the existence of -> acknowledgment of receipt of the present appellant been specifically challenged in relation to such findings in the impugned order; all that has been urged is that upon inspection of the records by the appellant, no proof of service was found. Yet the factual observations and findings in para 12 have not been specifically challenged anywhere in the appeals.

¶6Having regard to these facts and the further circumstance that due despatch of the award by registered post AD does not appear to have been contested at any stage, this Court is of the opinion that even apart from the reasoning indicated in the impugned order, due notice has to be presumed by virtue of Section 27 of the General Clauses FAO(OS)330/2013 & FAO(OS) 332/2013 Page 5 Act. The said provision reads as foliows:- "27.Meaning of service by post-Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression"serve" or either of the expressions" give" or" send" or any other expressionis used, then, unless a different intention appears, the service shall be deemed to be effected byproperly addressing,pre-paying and posting by registered post, a lettercontainingthe document,and, unless the contrary isproved, to have been effectedat the time at which the letter would be delivered in the ordinary course ofpost. "

¶1In view of the above discussion, the Court is satisfied that the appealsare meritless. The sameare accordinglydismissed. LvvvX^J^U/' S. RAVINDRA BHAT, J (JUDGE) NXJMI<WAZIRI,J (JUDGE) JULY 26,2013 'sn' FAO(OS)330/2013&FAO(OS)332/2013 Page6 A. /

(D $-12 & 14 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDEDON: 26*" July, 2013 + FAO(OS) 330/2013 & FAO(OS) 332/2013 M/S RAINBOW ELECTRIC SUPPLY CO Appellant Through : Mr. Pawan Kumar, Mr. Prithvi Pal, Advs. versus NORTH DELHI POWER LTD & ANR Respondents Through : Mr. K.Datta, Mr. Manish Srivastava, and Mr. Parijat Kishore, Advs. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMIWAZIRI