Jaspal Singh ( 1 ) THE facts giving rise to this judgment fall into a short compass. Let me recapitulate. ( 2 ). On a petition by the Union of India under Section 20 of the Arbitration Act, 1940 (hereinafter called the Act) against M/s. Associated Producers Company. Penang and Mr. Abdul Wahab of Madras, Avadh Behari, J. by his order dated May 26, 1972 appointed Mr. Hardyal Hardy, a retired Chief Justice of this Court, as the sole arbitrator who entered on the reference on September 12, 1972 and made his award on February 21, 1973. Whereas the Award has won whole hearted approval of the Union of India, the other side, namely M/s. Associated Producers Company, Penang as well as its sole proprietor Mr. M. A. A. Wahab have found it totally unacceptable. They have thus filed separate objections under Sections 30 and 33 of the Act. ( 3 ). On the basis of the objections raised, following issues were framed:- (1) Whether the objection petition has been filed within the period of limitation ? OPO (2) Whether the objector was not duly served in arbitration proceedings ? If not, its effect ? OPO (3) Whether the award is liable to be set aside on other grounds mentioned in the objection petition ? OPO (4) Relief. ( 4 ). Let me first give a brief resume of what led to the framing of the issues. ( 5 ). As far as the first issue is concerned, it being self-speaking needs no feed-back excepting this much that as per the Union of India, the objections filed by objector No. 2 are not within time. ( 6 ). The objectors have taken the plea that neither the objector firm nor its sole proprietor had ever been served with any notice issued by the arbitrator on his entering on the reference and that, in any case, Mr Hardy was hardly justified in law or even on facts, in resorting to service by publication in "the Hindu Madras" and as even that did not constitute proper service there was no justification for him to proceed ex parte against the objectors. It is this. objection which has given birth to issue No. 2. ( 7 ). The third issue has within its fold, two objections. It is claimed thal Mr. It is this. objection which has given birth to issue No. 2. ( 7 ). The third issue has within its fold, two objections. It is claimed thal Mr. Hardyal Hardy having entered on the reference on September 12, 1972 and having made the award on February 21, 1973, the award is beyond the statutory period of four months and no extension having been granted nor there being any application undersection 28 of the Act for any such extension, it is liable to be thrown out as barred by limitation. This is the first objection. The second is that as the Union of India had unilaterally declared the contract containing the arbitration clause as null and void, therefore, ibe arbitration clause also fell along with it and for that reason too the arbitration clause could not be invoiced or resorted to. ( 8 ). The last issue, of course, relates to relief. ( 9 ). Time now to examine the nuts and bolts. ( 10 ). I am sure that Union of India would not have raised this objection had the Deputy Registrar of this Court not been guilty of a faux pas by wrongly noting in his order dated September 2, 1976, that respondent No. 2 had been served by registered post on August 26, S976. Actually August 26, 1976 was the dale put by the postal authorities showing when the registered envelop had been received in the post office. The Deputy Registrar took it to be the dale of service. Had he cared to look a! the back of the registered envelop itself he would have found two endorsements by the postal authorities as follows : "left "left sd/ -. . sd/- 30/8 31/8 ( 11 ). Anyhow, we have the acknowledgment due on record showing that respondent No. 2 was served on September 1,1976 The objections having been filed on September 28, 1976, were thus well within lime. There is no dispute that as far as objector No. 1 is concerned, its objections were within limitation. This much for the issue. ( 12 ). It is issue No. 2 which was witness to lot of firework and not without basis. However, first the prologue. There is no dispute that as far as objector No. 1 is concerned, its objections were within limitation. This much for the issue. ( 12 ). It is issue No. 2 which was witness to lot of firework and not without basis. However, first the prologue. A contract was entered into on August 23,1987 between M/s Associated Producers Company 28, Beach Street PO Box 81 , Penang and the Union of India The contract was signed on behalf of the firm by its sola proprietor M. A. A. Wahab (Seeex. R-i)it was this contract which ultimately led to disputes, proceedings under Section 20 of the Arbitration and the appointment of Mr. Hardyal Hardy. It may be noticed that during the proceedings under Section 20 of the Act an application was moved under Order VI rule 17 of the Code of Civil Procedure by the Union of India which led to she impleading of M. A. A. Wabab aa respondent No. 2. It appersrs from the record that there was a continous exchange of correspondence between the partics and significantly ever, where the name of respondent No. 2 was mentioned as MA. A. Wabab and the address of respondent No. 1 firm was the same as mentioned above. In this connection reference need be made to only a few such documents. They arc exhibits R-10, R-ll, R-16, R-20, R-22, R-30, P-2 and P-S. I am laying emphasis on the name of the proprietor and the address of the respondents as both have come to play a vital role. ( 13 ) IT io happened that daring the proceedings before Mr Hardy, for a reason which it is difficult tor me to comprehend, the name of the proprietor ceased to be M. A A Wahab. It became abdul Wahab . This quirkiness dug the grave. What finally led to she burial is as follows. As already noticed above, the address of the firm was 28 Beach Street P. O. Box No. 811 Penang. Strangely enough, it too changed. It became 88 Beach Street and the P. O. Box number too had a transformation of sorts. I say so on the basis of thci notice sent by the arbitrator. Happily the envelop bearing that convoluted address still remains intact in the otherwise badly mauled and mutilated record of the proceedings. Mr. Strangely enough, it too changed. It became 88 Beach Street and the P. O. Box number too had a transformation of sorts. I say so on the basis of thci notice sent by the arbitrator. Happily the envelop bearing that convoluted address still remains intact in the otherwise badly mauled and mutilated record of the proceedings. Mr. Hardy was thus, with respect, pounding at a wrong person at a wrong address and when he found, for, under the circumstances, what else could he find ?, that there was no response from both the respondents, he directed the claimant Union of India to provide to him with their "fresh addresses" (See proceeding of October 5. 1972 ). This led, if I may be permitted to say so, to a Pickwickian situation. The Union of India informed Mr. Hurdy that it had come to know that Mr. Wahab was in Madras. A great job. done indeed. And, pray, how did it come to know of it ? A letter (Ex. R-32) had done the trick. It was from. the High Commissioner of India, Kuala Lumpur to the Ministry of Food and Agriculture. It said: "wft understand Mr. Wahab is at present in India at following address : 280, Linghi Chetty Street, Madras-1". No body tried to verity the correciness of this information". The words "we understand" were blindly and mutely accepted as Gospel truth. Notices were sent by registered cover at the said address and received back with the endorsement "not known" Instead of taking the persons concerned out of their slumber and making them sit, it caused not even a flatter. The next order was to effect service by publication in the Hindu Madras with "abdul Wahab" shown as a resident of "280 Lingiri Chetty Street, Madras-1". With publication affected, the respondents were proceeded against ex pane leading to this ex parte award. And all this, although the claimant Union of India knew about yet another address of the respondent in Singapore. An address at which he had earlier been served with a communication by the department (see Ex. P. 4 ). ( 14 ). What do we find then ?m A. A. Wahab was never sent anotice. Oa Abdul Wahab was. No notice was sent to respondent No I at its correct Kuala Lumpur address. An address at which he had earlier been served with a communication by the department (see Ex. P. 4 ). ( 14 ). What do we find then ?m A. A. Wahab was never sent anotice. Oa Abdul Wahab was. No notice was sent to respondent No I at its correct Kuala Lumpur address. Notices were sent at a Madras address to abdul Wahab without verifying whether he really resided or had an office there. Without any legal justification orders ware passed for substituted service and later for proceeding exparte. ( 15 ). Even if it be assumed that there was some justification on facts, though I discern not even a tiny speak of it, to order for substituted service. could the arbitrator pass an order for substituted service ? No according to a Division Bench judgment of this court in Union of India v. Mis Bhatia tanning Endustries, AIR 1986 Delhi 195 This adds yet another dimension to the already condemned proceedings. But, then, I am still not finished. The objectors have led evidence, cogent and convincing, with nothing in rebuttal, to prove that the; had nothing to do with "280 Linghi chetty Street Madras-1". This buries the award fathoms deep. Irretrievably. The issue thus goes in favour of the objectors. ( 16 ) ISSUE No. 3 the issue takes within its embrace two objections. I am mentioning them only for no other objection was canvassed or pressed. The first is that the award having not been made within the statutory period and no extension having been granted under Section 28 of the Act, it tails. The second relates to the contract itself. It is contended that the contract itself having been declared as null and void by the claimants by their telegram dated September 15, 1967, clause 12 of the Contract containing the arbitration agreement also becomes null and void and with that falls the reference and the award. ( 17 ) COMING to the first objection, the award itself goes to show that mr. Hardy had entered on the reference, on September 12, 1972 and bad made the award on February 21, 1973 As no time limit for making the award was fixed by Avadh Behari, J. the award was required to be made within the statutory period of four months. It was not so made. Hardy had entered on the reference, on September 12, 1972 and bad made the award on February 21, 1973 As no time limit for making the award was fixed by Avadh Behari, J. the award was required to be made within the statutory period of four months. It was not so made. Admittedly no application was made under Section 28 of the Act and as such there was no extension of time. Interestingly even during arguments no request was made even orally. Can I extend the time suo motu ? If so, should ? There is no doubt in my mind that no formal application need be moved and that the court may act suo motu. The discretion lies with the Court. But then discretion being a much maligned, much mis-used term, the wise-men of law have, with a view to tame this wild horse, and to control its swift hoofs, held that discretion, must be exercised judicially and only if cogent reasons are forthcoming. If this be the prescription or specification for the grant of extension, and I have no doubt that this is. is it a fit case for exercising the discretion in favour of extension ? No, is my firm answer. Right from bead to toe, it is a case of fatal misadventures. I have already ventured to pen them in the preceding paragraphs. Neither the Arbitrator nor (he Union of India can claim innocence. And then, the proceedings before the arbitrator would go to show that the Union of India had been taking adjournments which could easily be avoided The objectors were hardly responsible, (and how could they be when they were being proceeded against exparte ?) for the delay. Why should then I exercise discretion in favour of extension ? here, at least, Barkes is not willing. ( 18 ) DURING arguments my attention was drawn to the contract Ex. R-1, and, more particularly, to its clauses 8 and 12. Clause 8 provides that on the failure of the sellers to deposit with the buyers a transferable non-performance bond in the amount of U. S. Dollars 63,000 within 10 days of the establishment of the Letter of Credit under clause 10 of the contract, the contract "shall become null and void forthwith". Clause 8 provides that on the failure of the sellers to deposit with the buyers a transferable non-performance bond in the amount of U. S. Dollars 63,000 within 10 days of the establishment of the Letter of Credit under clause 10 of the contract, the contract "shall become null and void forthwith". It was contended that as the required transferable con performance bond was not deposited, therefore, the Union of India bad actually declared the contract as null and void and, in support, my attention was drawn to telegram Ex. R-44 dated September 15, 1967 sent by the Union of India to the objectors which runs as follows :- 3-6/67 Pimpiv stop reference contract of 23rd August 1967 for purchase of Forty five thousand tonnes South American origin rice as amended vide Telegram Exchanged between us on september 11th 1967 stop clause eight of the said contract stipulates that if sellers fail to deposit with buyers within ten days" of establishment of 1/c The non performance bond referred to under the said clause then the contract shall become null and void forthwith stop as intimated by you L/c duly received by your Bank on September 5, 1967. stop non perfomance bond should thus be deposited with buyers by 15th september 1967. Stop non performance bond should thus be deposited with buyers by 15th September 1967. Stop wish to bring to your -notice that if the said non performance bond is not received hereby September 15th 1967. The contract of 23rd august 1967 becomes null and void. "it was contended that the Union of India having itself declared the contract as null and void, the arbitration agreement as contained in Clause. 12 of the contract Ex. R-1 also fell alongwith it and that for that reason, the entire proceedings would fall to the ground. In support, reliance was placed on I. T. C Ltd v. George Joseph Fernandas and another AIR 1989 SC 839 , M/s. Chiranji Lal Multani R. B (Private) Ltd. v. Union of India, AIR 1963 Punjab 372, Alliance Mills Pvt, Ltd v M/s. Madan Gopal and Sons, AIR 1982 Calcutta 282 M/s. Dodal Pvt Ltd v. Delhi Electric Supply Undertaking, air. 1984 NOC 111 (Delhi) and Suwalal Jain v, Clive Mills Co. Ltd AIR 1960 Calcutta 90. 1984 NOC 111 (Delhi) and Suwalal Jain v, Clive Mills Co. Ltd AIR 1960 Calcutta 90. ( 19 ) IN I. T. C. Ltd. v, George Joseph Fernandes and another there was an application under Section 34 of the Arbitration Act and an issue was raised as to the validity or existence of the contract containing the arbitration clause. It was held the court has to decide first of all whether there is a binding arbitration agreement, even though it involves incidentally a decision as to the validity or existence of the parent contract.-The court dealt with the question as so whether in an application under Section 34 of the Act, the Court can decide the question of validity of the agreement containing the arbitration clause. This, obviously, has nothing to do with the case before me Coming to M/s. Chiranji Lal Multani v. Union of india, which is from Punjab, it was held that if the contract itself is forbidden by law and, therefore, illegal, the arbitration clause forming part of the contract would also be illegal as the taint of illegality attaches to every part of the contract, including the arbitration clause. Obviously, the facts before me do not attract even this authority inasmuch as it is no body s case that the contract entered into was forbidden by law and for that reason the arbitration clause forming part of the contract would also be illegal. Similarly in the case of Alliance Mills Pvt Ltd. , the contract entered into was illegal in view of the statutory prohibition. It was held that in such a case the plea that the arbitration clause was void could be raised even after the party had acquiesced and taken part in the arbitration proceedings This judgment too is not attracted to the facts of the present- case. The judgment of the Delhi High, Court in M/s. Dodal Pvt. Ltd, is equally inapplicable In that case the contract had been entered into it contravention of some statutory requirements and as the defect was not curable, it was observed that the arbitration agreement would also be unenforceable. Similarly in Suwalal Jains case before the Calcutta High: court, the contract itself was forbidden in law and as such illegal and it , was under these circumstances that the arbitration clause which formed part of the contract was also held to be illegal and void. Similarly in Suwalal Jains case before the Calcutta High: court, the contract itself was forbidden in law and as such illegal and it , was under these circumstances that the arbitration clause which formed part of the contract was also held to be illegal and void. ( 20 ) COMING back to the contract and, particularly, to clause 8, of course, it does state that in case of failure of the sellers to deposit with the buyers the requisite non performance bond within 10 days of the establishment of the Letter of Credit, the contract shall become null and void forthwith However, the objectors are not justified in taking the plea that the Union of India had actually declared the contract to be null and void unilaterally by its telegram Ex. R-44. By the said telegram the Union of india bad only drawn the attention of the objectors to the clause in the contract and had only asked for the performance of the said clause. The telegram by itself did not declare the contract to be null and void. In any case non compliance of clauses would not render, to my mind, the arbitration agreement also null and void. The arbitration clause would be attracted even on non compliance of clause 8 as it would amount to breach of the terms of the coritracr, inasmuch as, it would effect the "rights and obligation of the parties. In any case, it is significant to note that even after the telegram dated 15-9-1 B67 the parties" did not take the contract as having come to an end. In this connection, I may make reference to only a few of the documents placed OB the record. The first is Ex R-2. It is a telegram dated October 13, 1967 and is by the Union of India, It was admittedly received by the objectors. By it the Union of India noticed the inability of the objectors to supply the goods according to the specifications laid down in the contract. It also noticed that the objectors had failed to ship any rice by 5th October 1967 which was the last date of shipment according to the contract. It was on account of this failure on the part of the objectors that they were stated to be guilty of the breach of the contract. It also noticed that the objectors had failed to ship any rice by 5th October 1967 which was the last date of shipment according to the contract. It was on account of this failure on the part of the objectors that they were stated to be guilty of the breach of the contract. Thus on October 13, 1967 the Union of India itself had not taken the stand that the contract had already become null and void. Rather it appears that the contract was amended by telegrams exchanged between the parties on; 14th September. 1967 and the failure to supply goods according to the specifications including their shipment was the actual cause which was taken to be the reason for the breach of the contract. the next document is of october 7, 1968 (Ex. R-9 ). It is also from the Union of India and is addressed to the objectors Here also the objectors were stated to have committed the breach of the contract on account of their failare "to supply the contracted stores in terms of the contract. " Thus non compliance of clause 8 was no where taken as one of the grounds. The third document is of october 7, 1968 It is Ex. R-10 It is from the objectors and is addressed to the Union of India. Therein the objectors nowhere plead or allege or mention even obliquely that the Union of India had unilaterally declared the contract null and void Rather it talks of unfulfilment of the contract on the part of the government and holds the Government of India solely responsible for the breach of the contract on account of its having "obstructed" the shipment of the goods The next document is Ex. R-11. It is dated 7th january, 1969 and is also from the objectors. It again talks of the Union of india having obstructed the shipment of the goods and holds it solely responsible for the same. In short, what these documents show is that the. parties had not taken the contract having become null and void. R-11. It is dated 7th january, 1969 and is also from the objectors. It again talks of the Union of india having obstructed the shipment of the goods and holds it solely responsible for the same. In short, what these documents show is that the. parties had not taken the contract having become null and void. Rather they proceeded with the contract and it was only much later that the government of India claimed damages on account of the breach of the contract not on the basis of the violation of Clause 8 but on account of the failure of the objectors to supply the goods in question and significantly the objectors also did not, at any stage, place reliance on Clause 8 and rather treated the contract as subsisting and, on their part, claimed the Government of India - to be responsible for non shipment of the goods. ( 21 ) FOR the reasons recorded above, I am inclined to hold that neither the Union of India had unilaterally declared the contract to be null and void nor it was at any stage treated to have become null and void for non compliance of Clauses of the contract and that in any case the arbitration agreement as contained in. Clause 12 stood firm and thus remained applicable. ( 22 ) THE award being not within time and no case having been made out for extension of time, the issue goes in favour of the objectors . Relief ( 23 ) THE award is set aside. However, no order, is made as to costs.