Research › Browse › Judgment

Delhi High Court · body

1993 DIGILAW 496 (DEL)

SURINDER KUMAR AND BROS v. UNION OF INDIA

1993-09-03

MOHD.SHAMIM

body1993
D. K. Jain,j. ( 1 ) IN a building contract between M/s. Surinder Kumar and Brothers and Union of India, on contractor s raising disputes and invoking the arbitration clause, the matter was referred to the arbitration of Shri N. H. Chandwani, Arbitrator. He made the award dated 30 July, 1990. On the arbitrator filing the award and the related proceedings, notice of filing of the same was accepted for thepetitioner/contractoron28september, 1990. None being present on behalf of the Union of India on that day, notice of filing of the award was issued to the Union of India through the Secretary, Ministry of Urban Development, Nirman Bhavan, New Delhi. ( 2 ) IT was received back with the process server s report dated 5 February, 1991. which purported to state that on the said date. he visited Room No. 323, Nirman Bhawan, tendered the notice to a clerk for service, who read it and stated as it was not accompanied with a copy of the application, the same may begiven. No witness was available. Process server s affidavit to the aboveeffect is duly attested. ( 3 ) THE matter came up before the Deputy Registrar on 4 April, 1991. Mr. G. L. Sahni. Advocate, appeared for the Union of India. The Deputy Registrar noticed the above report of the process server and declared the "refusal to accept service" as "deemed service" and directed the case to be listed in short matters . ( 4 ) ON 17 April, 1991, the Union of India filed two applications being IANo,6524/ 91 (objections under Sections 30 and 33 of the Arbitration Act) and the other IA No. 6415/91 (under Section 5 Limitation Act and Section 151 CPC) for review of the above order of the Deputy Registrar as being contrary to the mandatory provisions of Order 5 Rules 12 and 17 and Order 27 Rules 1 and 2 of the Civil Procedure Code, on the plea that there had been no affixture and the process server s report was not supported by any witness; there had been no service on the respondent-Union of India through its Secretary or the latters personal staff; the declaration of deeming service was bad in law and the same may be reviewed. Alternatively, it was stated that time for filing of objections be extended till 17 April, 1991, the date on which the objections against the award ( IA No. 6524/92) had been filed and these be considered on merits. ( 5 ) THE matter was listed before Court as a short matter on 15 July, 1991 when the following issues were framed :- 1. Whether there is sufficent cause for condonation of delay in filing the Objection Petition? 2. Whether the award is liable to be set aside and/remitted or modified on any of the objections raised in the Objection Petition? 3. Relief. It was directed that the matter shall be decided by affidavits and the arbitration proceedings shall be read in evidence. In response thereto the requisite affidavits have been filed. ISSUE NO. 1. ( 6 ) THE question of consideration of delay for filing the objections would bematerial only if the notice of filing of the award is deemed to have been duly served on the Union of India on 5 February, 1991. As the legality of service of this notice on the respondent- Union of India has been challenged in IA No. 6415/91, arguments have been heard only in the said application. ( 7 ) BEFORE me, Mr. J. C. Seth, learned counsel for the respondent, during the course of arguments, has assailed "deemed service" on two counts: (i) that notice should have gone to the Executive Engineer concerned who had signed the contract on behalf of Union of India, he was a person interested/concerned with execution of the work, to whom the arbitrator had sent copy of the award; the Union ofindia acts through the President, who in turn acts through the authorised official and the Executive Engineer has been duly appointed as such vide Governmen to India s notification dated 14 February, 1990 and (ii) that the so-called service on the Secretary, Union ofindia. on the basis of process server s report is not proper as the stipulations in Order 5 Rule 17 Civil Procedure Code have not been complied with. ( 8 ) TO appreciate the contentions raised, it would be appropriate to refer to the relevant provisions in the Code of Civil Procedure dealing with service of summnons/ notices on the Government. Order 27 Civil Procedure Code deals with suit by or against the Government or public officers in their official capacity. ( 8 ) TO appreciate the contentions raised, it would be appropriate to refer to the relevant provisions in the Code of Civil Procedure dealing with service of summnons/ notices on the Government. Order 27 Civil Procedure Code deals with suit by or against the Government or public officers in their official capacity. Rule 3 stipulates that in suits by or against the Government, it would be sufficient to insert the appropriate name as provided in Section 79 of the Code. Section 79 provides for suits by or against the Government and states that in case of a suit by or against the Central Government, the authority to be named is the 330 Union of India. Rule 1 of Order 27 deals with signing and verification of pleadings and Rules 2 and 4 with the persons authorised to act for the Government and agents for the Government to receive processes. Rule I states that in suits by or against the Government, the plaint or written statement will be signed by such person as the Government may, by general or special order, appoint in this behalf and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. Rule 2 stipulates that persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceedings shall be deemed to be the recognised agents by whom appearances, acts or applications under the Civil Procedure Code may be made or done on behalf of the Government. Rule 4 read with Rule 8-B of Order 27 states that the Government s pleader duly appointed by the concerned Government in any Court, will be the agent of the Government to receive processes against the Government, issued by such Court. ( 9 ) RESPONDENT No. 1 in the matter is Union of India who is sued through its Secretary, Ministry of Urban Development, Government of India, Nirman Bhavan, New Delhi. Notice of filing of the award was issued to him. It is not disputed that being the Secretary to the Government of India ex-officio, he was competent to accept service of notice of filing of the award on behalf of respondent-Union of India. Notice of filing of the award was issued to him. It is not disputed that being the Secretary to the Government of India ex-officio, he was competent to accept service of notice of filing of the award on behalf of respondent-Union of India. It is, however, urged on behalf of the respondent that having regard to Rules 10 and 11 framed by this Court under the Arbitration Act, it would have been more appropriate if the notice had been issued to the Executive Engineer concerned, who had entered into the relevant contract on behalf of the Union of India, had been appearing before the arbitrator, a copy of the award having been sent to him by the arbitrator, the Exeucutive Engineer was, thus, person "concerned" and "interested" within the meaning of the said Rules and a person more appropriate to represent and act for the Union of India in these proceedings in Court. In this connection, reference was made to Ministry of Law s notification dated 14 February, 1990, issued in the exercise of powers conferred by Rule 1 of Order 27 read with the First Schedule to the Code (in supersession of earlier notification SRO 351 dated 25 January, 1958 and 1651 dated I September, 1953) appointing the persons specified in the schedule ( which includes the Superintending Engineer and Executive Engineer) as the persons by whom plaints and written statements in suits in Civil Courts etc. by or against the Government could be signed and verified by those who are acquainted with the facts of the case. ( 10 ) THE above notification is issued under Rule 1 and not Rules 2 or 4 of Order 27 of the Code. As noticed earlier there is a clear distinction in Rule l. which stipulates about appointment for signing and verifying pleadings and Rules 2 and 4 which provide for authority to act as agent to receive notices on behalf of the Government. Authority to act and represent the Government is substantive and is decipherably distinct from an authority merely to sign pleadings, which is only procedural. The Superintending Engineers and Executive Engineers, therefore, though competent to sign the pleadings cannot be taken to bepersons authorised to act for the Government and accept service of summons/notices on its behalf. In M/s. C. Layall and Company Vs. The Superintending Engineers and Executive Engineers, therefore, though competent to sign the pleadings cannot be taken to bepersons authorised to act for the Government and accept service of summons/notices on its behalf. In M/s. C. Layall and Company Vs. Union of India and others ILR (1973)1 Delhi 905, H. L. Anand, J. (as His Lordship then was) rejected asimilar contention drawing aclear distinction in the two cases; holding that notice of any proceedings will be valid only if sent to the Secretary, Government of India, who was the person specifically authorised to act for the Government and not, as is now pressed, a person who is appointed merely to sign the pleadings. Same is a view taken by A. B. Saharya, J. in Kanishka Builders Vs. 331 Union of India and another 1990 (2) ALR Arb. L. R. 197. It cannot, therefore, be said that notice of filing of the award should have been issued to the Executive Engineer instead of to the Secretary, Ministry of Urban Development, Government of India. The contention of learned counsel for the respondent on this point is, therefore, rejected. ( 11 ) NOW as to the legality of the declaration of deemed service on the Secretary, Ministry of Urban Development, the report of the process server is that after perusal, the official declined to accept the service on the plea that it was not accompanied by a copy of the application. The plea for declining to accept service for a notice of this kind is meaningless. The notice and its copy are both on the record and the fact remains that the official refused to accept service. But in my view, this could not be deemed as due service as the notice was not affixed as stipulated in Rule 17 of Order 5 of the Code. It is evident from the record that there was no compliance of the mandatory provisions in this behalf. Rule 17 stipulates that on refusal to accept service of notice, the process server shall affix the copy of the notice on the outer door or some other conspicuous part of premises. Admittedly this was not done. "refusal" to accept notice, as such, could not be deemed as proper service. The Deputy Registrar s order dated 4 April, 1991 of deeming service cannot, therefore, be sustained as not being in accordance with law. Accordingly,1. Admittedly this was not done. "refusal" to accept notice, as such, could not be deemed as proper service. The Deputy Registrar s order dated 4 April, 1991 of deeming service cannot, therefore, be sustained as not being in accordance with law. Accordingly,1. A. No. 6415/91 is allowed as above. ( 12 ) MR. G. L. Sahni,advocate, appeared for the Union of India on 4 April, 1991. He learnt on that date about the arbitrator having filed the award. The objections against the award having been filed on 17 April, 1991 are within time. In the circumstances, there is no occasion to extend time for it. Issue No. 1 as framed is thus rendered infructuous. ( 13 ) SINCE I have held that objections filed by Union of India, being IA No-6524/91, are within time, let the matter be now listed before the regular Court for decision on Issue No. 2.