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1990 DIGILAW 190 (DEL)

KANISHKA BUILDERS v. UNION OF INDIA

1990-07-13

ARUN B.SAHARYA

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Arun B. Saharya ( 1 ) THE petitioner has filed an application under Sections 14 and 17 of the Arbitration Act, 1940 praying that the arbitrator, respondent No. 2, may be directed to file the original award dated 27th of October 1988 together with depositions/docummts and arbitration proceedings in this Court. This petition has been registered as a suit. ( 2 ) AFTER the arbitrator filed and award along with the proceedings etc. in this Court, notice of filing of the award was issued to the petitioner and to respondent No. 1. No objections to the award were, however, filed within the prescribed period. Later, respondent No. filed objections under Sections 30 and 33 of the Arbitration Act and thereafter moved an application under Section 5 of the Limitation Act for condonation of delay. These applications were registered as I. A. 2861/89 and I. A. 8962/89 respectively. ( 3 ) THE record shows that notice of filing of the award was served upon the respondent Union of India, through Secretary, Ministry of Defence, South Block, New Delhi on 6th of February, 1989. But, the objections were filed on 10th of April, 1989 and the application for condonation of delay on 30th of November, 1989. ( 4 ) SERVICE of notice on the Secretary on 6th of February 1989 is admitted. It has been submitted, however, that the concerned Department in this case is Commander Works Engineer (Project), Delhi Cantt. (hereinafter referred to as the CWE ). After receiving the notice, Office of the Secretary redirected it to Engineer-in-Chief s Branch where it was received on 17th of February 1989. This Branch sent it to the Office of the Chief Engineer, Delhi Cantt. where it was received on 21st of March 1989. From there, it was again redirected to and was ultimately received by CWE on 29th of March, 1989. On these facts, it is claimed that objections to the award filed on 10th of April, 1989 are within limitation. Further, it is submitted that the delay, if any, occured in the course of tranmission of the notice, it was beyond the control of the respondent, and should be condoned. ( 5 ) IN the present case, the suit has been instituted against the Central Government. The Union of India is the authority named as the respondent in accordance with Section 79 of the Code of Civil Procedure. ( 5 ) IN the present case, the suit has been instituted against the Central Government. The Union of India is the authority named as the respondent in accordance with Section 79 of the Code of Civil Procedure. This is different from a suit against a public officer where the notice has to be delivered to him or left at his office. It is only for the purposes of that kind of a case that the Court may deviate from the usual mode, and if it appears to it that the summons or notice may be conveniently so served, send it for service on the defendant to the head of the office in which he is employed, as envisaged under Order V Rule 27, Civil Procedure Code. In the present case, the CWE is not the respondent. This is not a suit against a public officer (the CWE ). It is againt the Central Government. The notice had to be served on the Secretary to the Government and not on anyone else. Therefore, serve of the notice on Union of India was complete when it was left at the office of the Secretary, Ministry of Defence of the Central Government. ( 6 ) THE plea that the CWE is the concerned department and that the time taken in transmission of the notice to him should be excluded, cannot be accepted. The Union of India is an integral authority. This is the authority named as the respondent. It cannot be split into different legal personalities, one being the Secretary, Ministry of Defence and the other the CWC, the so-called concerned department of the Government. It really makes no difference whether the Secretary transmits the notice to the concerned department or not. The service on Union of India is conclusive to reckon the prescribed period under the Limitation Act when the notice is left at the office of a Secretary to the Government. ( 7 ) SINCE the notice of filing of the award was served on the Union of India through Secretary, Ministry of Defence, South Block, New Delhi on 6th of February 1989, it cannot be said that the objections filed on 10th of April 1989 were within limitation. ( 7 ) SINCE the notice of filing of the award was served on the Union of India through Secretary, Ministry of Defence, South Block, New Delhi on 6th of February 1989, it cannot be said that the objections filed on 10th of April 1989 were within limitation. ( 8 ) THERE appears to be no justification for the notice being sent from Office of the Secretary to the Engineer-in-Chief s Branch and from there to the Office of the Chief Engineer and then to the CWE. The notice served on the Secretary itself indicated that it concerned the CWE. In addition to this, a copy of the application under Sections 14 and 17 of the Arbitration Act was also forwarded to the Secretary. Para 3 of that application gave full particulars of the contract and the concerned department. In these circumstances, it cannot be claimed that respondent No. 1. acted diligently, or that the delay occured beyond the control of respondent No. 1, in routing the notice through such a long channel down to the CWE, especially in a court case involving limitation. ( 9 ) THE various offices of the Government, who dealt with the notice in the present case, are located in Delhi. Yet, no explanation at all has been offered for the time taken after expiry of the prescribed period in movement of the papers from one stage to the other. The application merely mentions the dates when papers were passed on from one to the other office of the Government. This cannot be said to be an explanation of sufficient cause for the delay. As held in State of Bihar v. Dhajadhari Rai1 procedure of the working in Government offices is irrelevant for considering sufficient cause for the purposes of Section 5 of the Limitation Act. ( 10 ) LEARNED counsel for Union of India relied upon the decision of Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and other2, to contend that the Court should adopt a liberal approach to do substants justice to parties by disposing of matters on merits. ( 11 ) IN Shanti Devi v. Khan Raj3, Hon ble Mr. Justice D. P. Wadhwa of this Court observed that the judgment in Katiji s case cannot be used as a magic wand to be applied in all cases and in all situations. ( 11 ) IN Shanti Devi v. Khan Raj3, Hon ble Mr. Justice D. P. Wadhwa of this Court observed that the judgment in Katiji s case cannot be used as a magic wand to be applied in all cases and in all situations. The Court must be satisfied that the applicant has sufficient cause for not making the application within the period prescribed. In doing so, of course, it should adopt a liberal approach in examining the circumstances of the case. ( 12 ) AS earlier discussed, the Union of India has failed to show sufficient cause for the delay in filing objections to the award within the prescribed period. Accordingly, I. A. 8962/89 has to be dismissed. ( 13 ) CONSEQUENTLY, objections filed by respondent No. 1 under Sections 30 and 33 of the Arbiration Act, registered as I. A. 2861/89, are also dismissed as the same are barred by limitation. ( 14 ) EVEN otherwise, I have perused the award. I find no error apparent on the face of the award except in respect of the portion allowing pendente life interest to the petitioner from 26th of December 1987 (incorrect typed as 1988) to the date of payment or the date of decree, whichever is earlier. It is now well established by a chain of decisions of the Supreme Court that an arbitrator is not a Court within the meaning of Section 34 of the Code of Civil Procedure and has no power to award pendente lite or future interest. As such, this portion of the award is without jurisdiction. It is severable from the rest of the award. It is, therefore, deleted. ( 15 ) THE modefide award is hereby made rule of the Court and a decree is passed in terms thereof. In exercise of the power under Section 29 of the Arbitration Act, I order interest, from today till the date of payment at the rate of 12% per annum, to be paid on the principal sum adjudged by the award. ( 16 ) AS as result, I. As. 2861/89 and 8962/89 are dismissed and a decce is passed in terms of para 15 of this order. The suit is accordingly, desposed of. No costs.