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2006 DIGILAW 717 (KER)

T. Rajan v. Kotak Securities Ltd.

2006-10-18

J.B.KOSHY, M.N.KRISHNAN

body2006
Judgment :- Oral Judgment: J.B. Koshy, J. The appellant is the petitioner in Arbitration O.P.No.287/2005. He filed an application under S.34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') to set aside the arbitral award after 137 days of delay. The award was received by the appellant on 20.3.2005. S.34(3) of the act reads as follows: "An application for setting aside may not be made after three months have elapsed from the date on which the party making the application had received the arbitral award or, if a request had been made under S.33, from the date on which that request had been disposed of by the Arbitral Tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." He filed a petition on 15.10.2005 to condone the delay under S.5 of the Limitation Act contending that he was laid up in between. Now it is settled law that S.5 of the Limitation Act is not applicable. The time limit (3 months) as well as the maximum time limit (30 days) which can be condoned is stated in the Act itself. (See Union of India v. M/s. Popular Construction Co. (AIR 2001 SC 4010). The appeal was filed much after the above period. 2. In the appeal a totally opposite contention was taken that appeal itself is premature, as award was not delivered to him by the Arbitrator as prescribed in the statute. Time under S.34(3) will ran only after proper receipt of the award. According to the counsel for the appellant, the award was not delivered to the appellant directly by the Arbitrator. But award was delivered through the National Stock Exchange. Learned counsel for the appellant relied on the decision of a Single Bench of this court in Thomas Mathan. Joseph Thomas (1969 ILR (Kerala) 607) wherein it was held that the provision regarding giving of notice is a mandatory duty of the court under S.14 of the Arbitration Act, 1940. The Supreme Court in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti (AIR 1962 SC 666) held that it is not enough for the court to send the notice to the lawyer. The Supreme Court in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti (AIR 1962 SC 666) held that it is not enough for the court to send the notice to the lawyer. Notice should be sent to the party as per the provisions of S.14(1) which is mandatory. There is clear difference between the terminology of words used under S.14(1) of the Arbitration Act, 1940. Here the application was filed under S.34 of the Arbitration and Conciliation Act, 19% after the appellant received the signed copy of the award with delay condonation petition. S.31(5) of the Act casts an obligation to deliver signed copy of the award to the party. S.31(5) reads as follows: "After the arbitral award is made, a signed copy shall be delivered to each party". So the obligation is that a signed copy of the award shall be delivered to each party. It cannot be stated that the Arbitrator should personally deliver the matter to the party concerned. It can be delivered through Post Office, Courier or any other means. Here, the contention is not that he has riot received the signed copy of the award. He admits that it was delivered through National Stock Exchange and he received the same on 20.3.2005. It is also true that time has to be calculated for the purpose of time limit under S.34(3) for filing an application only from the actual delivery to the party and not to the National Stock Exchange, post office, courier or any other agency. Here if time is calculated from actual delivery of the award and admitted date of receipt it was found that it was beyond the statutory allowable time under S.34(3) of the Act. Therefore there is no merit in this appeal. Hence the same is dismissed.