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2012 DIGILAW 1329 (PNJ)

Aman Puri v. Anand Kishore

2012-09-27

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J. (Oral):- CM No. 24514.CII of 2012 Allowed as prayed for. FAO No. 5425 of 2012 1. In this appeal, order dated 5.9.2012 passed by learned District Judge, Amritsar thereby dismissing petition Annexure P/3 filed by the appellants under section 34 of the Arbitration and Conciliation Act, 1996(in short, the Act), has been challenged. 2. Both the parties vide agreement Annexure P/1 appointed Mr. Om Parkash Arora as Arbitrator to resolve their dispute. The Arbitrator gave award dated 9.2.2009, Annexure P/2. Respondents herein filed petition under section 36 of the Act for enforcement of the said award. Appellants herein filed objection petition Annexure P/3 under section 34 of the Act for setting aside the award. The said objection petition has been dismissed by learned District Judge vide order dated 5.9.2012 which is under challenge in this appeal. 3. I have heard counsel for the appellants and perused the case file. 4. Various grounds pleaded in paragraph no. 2 of the objection petition to challenge the award are reproduced hereinunder:- “a) That the said alleged arbitral award dt. 9.2.2009 is not valid under the law to which the parties have subjected it, under the law for the timely in force. b) The applicants were not given proper notice of the appointment of an arbitrator as well as of arbitral proceedings. Therefore, the applicants were unable to present their case, hence it needs dismissal. c) That the compensation of arbitral procedure was neither in accordance with the agreement of the parties nor as per the law for the time being in force. d) That the said arbitration award is in conflict with the public policy of India and the said alleged award was induce by fraud or corruption and in violation of law of natural justice. e) That the arbitration award is not constituting reasons and such award without reasons is liable to be set aside. Even brief summary of reasons is not mentioned in the award. Neither any pleadings were initiated nor mentioned in the impugned award.” 5. Counsel for the appellants contended that the award is in violation of sections 23 and 25 of the Act. It was also contended that the appellants had admittedly paid Rs. 7 lacs as earnest money to the respondents but respondents have been directed to pay back Rs. 5 lacs only to the appellants. Counsel for the appellants contended that the award is in violation of sections 23 and 25 of the Act. It was also contended that the appellants had admittedly paid Rs. 7 lacs as earnest money to the respondents but respondents have been directed to pay back Rs. 5 lacs only to the appellants. It was also contended that the respondents had filed suit claiming compensation of Rs. 8 lacs only but the appellants have been directed to pay Rs. 9 lacs to the respondents. It was also contended that the appellants never received the copy of award from the Arbitrator and therefore, the objection petition is within limitation. Reliance has been placed on judgments in the cases of Oil & Natural Gas Corporation Ltd. versus Saw Pipes Ltd., (2003) 5 Supreme Court Cases 705 and Savitri Goenka (Smt.) versus Kanti Bhai Damani, 2010(8) R.C.R. (Civil) 1530. 6. I have carefully considered the aforesaid contentions. The award is dated 9.2.2009 whereas the objection petition was filed on 24.12.2009. Postal receipts Annexures P/8 and P/9 vide which copy of award was sent by the Arbitrator to the appellants appear to be dated 21.2.2009 although date is not very clear. Counsel for the appellants submitted that complete and correct address of appellants was not mentioned in postal receipts. However, sometimes, postal receipts do not contain complete address although complete address is written on the envelope. In the instant case, the appellants’ claim that they had no knowledge of the award before they were served in the petition under section 36 of the Act has been rightly negatived by the learned District Judge. The award inter alia stipulates that both the parties shall withdraw their respective complaints which had been filed under section 138 of the Negotiable Instruments Act and respondents shall also withdraw the suit filed against the appellants. Pursuant thereto, both the parties withdrew the aforesaid cases from the courts. The appellants withdrew their complaints in May, 2009. It would depict that the appellants had received the copy of award prior to it and pursuant to the award, they even withdrew their complaints. Consequently, the objection petition filed on 24.12.2009 under section 34 of the Act is patently barred by limitation because the objection petition under the said proviso could be filed within three months of receipt of the award with further grace period of 30 days. Consequently, the objection petition filed on 24.12.2009 under section 34 of the Act is patently barred by limitation because the objection petition under the said proviso could be filed within three months of receipt of the award with further grace period of 30 days. However, the objection petition was filed on 24.12.2009 after expiry of the said period including grace period. Consequently, the objection petition has been rightly found to be time barred. 7. As regards contention of counsel for the appellants that the appellants have been awarded Rs. 5 lacs as against admitted earnest money of Rs. 7 lacs whereas the Arbitrator has awarded Rs. 9 lacs as against Rs. 8 lacs claimed in the suit by the respondents, no such objection has been raised in the objection petition Annexure P/3 nor there is any material on record to substantiate the same. Consequently, the aforesaid contentions are rejected being beyond pleadings and material on record. 8. The appellants falsely alleged in their objection petition that they had no knowledge of appointment of Arbitrator or of the arbitration proceedings. The appellants admitted in the witness box that they had entered into arbitration agreement Annexure P/1 whereby Mr. Om Parkash Arora was appointed as Arbitrator. It is also admitted fact that the appellants even submitted their claim statement before the Arbitrator. Consequently, the objection that they had no knowledge of appointment of Arbitrator or of the arbitration proceedings is patently false. 9. Sections 23 and 25 of the Act have also been complied with inasmuch as the parties submitted their respective claim statements before the Arbitrator. Judgments in the cases of Oil & Natural Gas Corporation Ltd. (supra) and Savitri Goenka (supra) are not applicable to the facts of the instant case. 10. For the reasons aforesaid, I find that the objection petition under section 34 of the Act filed by the appellants has been rightly found to be time barred and even on merits there is no ground to set aside the impugned award Annexure P/2. The instant appeal is thus meritless and is accordingly dismissed in limine.