Whether service of signed copy arbitral award on head of family can be treated as service on other family members?

Award dated 07.07.1996 was received by Anilkumar Patel for
himself and on behalf of his family members. In interim MOU dated
29.06.1996, Anilkumar Patel signed for self and as a power of attorney
holder for his wife and his all sons and daughter-in-law. Challenging the
award dated 07.07.1996, Anilkumar Patel and his family members have
filed a single petition under Section 34 of the Act. Likewise they have
also filed a single petition for amending the arbitration petition No.202 of
2005. Anilkumar Patel, being the head of his family, was a person
directly connected with and involved in the proceeding and was also in
control of the proceeding. Being head of the family, Anilkumar Patel
would have been the best person to understand and appreciate the
arbitral award and take a decision as to whether an application under
Section 34 of the Act was required to be filed or not. In such facts and
circumstances, in our considered view, service of arbitral award on
Anilkumar Patel amounts to service on the other appellant Nos.1(a) to
151(d) and respondent No.10 and they cannot plead non-compliance of
Section 31(5) of the Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3313 OF 2018
(Arising out of SLP(C) No.15668 of 2012)
ANILKUMAR JINABHAI PATEL (D) THR. LRs. 
Vs
PRAVINCHANDRA JINABHAI PATEL AND ORS. 
Dated:March 27, 2018

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How to ascertain limitation for filing application for setting aside arbitration award as per S 34 of Arbitration Act?

Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "1996 Act") stipulates grounds to challenge the arbitral award made under Section 31. However, the challenge to the award can only be made within limitation period of three months from the date of receipt of the award. This period of limitation can be further extended by 30 days in cases where the applicant is able to show sufficient cause for delay in filing petition under Section 34. It is pertinent to note that Section 34 provides for calculation of limitation period from the date of receipt of the award. In contrast, Section 31(5) of the 1996 Act provides only for the deliveryof the award to the parties which is followed by termination of arbitration proceedings. The term receipt is not used under Section 31(5) of the Act. The gap between "delivery" and "receipt" is further highlighted by reading of Section 3 of the 1996 Act which stipulates that a communication is "deemed receipt" on the date of delivery. Does this entail that delivery of the award amounts to receipt and the period of limitation is to be calculated from the date of delivery of award. 

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What is meaning of "signed copy of arbitral award"?

Whether certified photocopy of original award of arbitration along with signatures of members of arbitral tribunal is sufficient?

Moreover there is a vast difference between Section 31(5) of the 1996 Act and Section 14(2) of the Arbitration Act, 1940, under which the original award signed by the arbitrators or a copy of the award along with signatures of the arbitrators would have to be filed in Court as observed above so that judgment could be pronounced thereon. There was no requirement in law for the arbitrators to serve copies of the award on the respective parties. On the other hand, under Section 31(5) of the 1996 Act, copies of the award might have to be served to numerous parties in a multi party arbitration, and it may not be feasible for the arbitrators to physically sign all the copies of the awards.

33. We hold that the copy of the award and the copy of the corrigendum sent by the Registrar of the Indian Council of Arbitration to the appellant, were signed copies of the award in that they were photo copies of the original award along with the photocopied signatures of the arbitrator, and duly certified by the Indian Council of Arbitrators.

34. In our view, limitation started to run on 18th March, 2014, when the corrected award was received by the appellant and the application for setting aside of the award became barred by limitation on 16th June, 2014. The delay was condonable only by thirty days.

IN THE HIGH COURT OF CALCUTTA

G.A. 2518/2015, A.P.O.T. 337/2015 and A.P. 174/2015

Decided On: 28.08.2015

National Agricultural Cooperative Marketing Federation of Indian Ltd.
Vs.
R. Piyarelall Import & Export Ltd.

Hon'ble Judges/Coram:Indira Banerjee and Sahidullah Munshi, JJ.

Citation:AIR 2016 Cal160

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When delay in filing application U/S 34 of arbitration Act 1996 should not be condoned?

 The Apex Court (Three Judges' Bench) in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department [2009 (Supple) AIR SC 396] has dealt with an almost identical issue. The question of limitation under Section 34(3) of the Act of 1996 was raised. Section 5 of the Act of 1963 was sought to be read along with Section 34(3) of the Act of 1996, so as to canvass that the competent Court had jurisdiction to condone the delay and the same was entirely at the discretionary powers of the Court.

The Three Judges' Bench considered the contentions of the parties and has finally settled the controversy in paragraphs 10 to 12 of the said judgment, which read as under:-

"10. A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the Court. Section 29(2) of the Limitation Act, inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained inSections 4 to 24 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law. When any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.

By the impugned order, the competent Court has concluded that the delay of two months and one day can be condoned since the delay was neither intentional nor deliberate. It is apparent that the conclusions drawn by the concerned Court are not in consonance with the law as laid down by the Apex Court in the case of Consolidated Engineering (supra) and the view of this Court in the case of PCV Traders (supra). I, therefore, find the impugned judgment to be erroneous and in opposition to settled law.

In the result, the impugned order dated 30.8.2012, passed by the Principal District Judge, Beed in Misc. Civil Application No.503 of 2011 is quashed and set aside.

Bombay High Court

Mahindra and Mahindra financial services ltd vs Manik Vitthal 

Kawle on 25 September, 2014

Bench: R.V. Ghuge

                     IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                BENCH AT AURANGABAD
                      WRIT PETITION NO. 300 OF 2014




 Citation;2016(2) ALLMR 193

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Whether limitation for setting aside arbitration award will commence from date signed copy of award is delivered to party?

In ARK Builder's case (supra), the Apex Court while reiterating
its decision in Tecco Trichy case, held that the expression “party
making that application had received the arbitral award” from Section
34 of the Arbitration Act, cannot be read in isolation and it must be
understood in the light of what is said earlier in Section 31(5) that

requires a signed copy of the award to be delivered to each party.
Reading of the two provisions together, it is clear that limitation
prescribed under Section 34(3) would commence only from the date the
signed copy of the award is delivered to the party making an application
for setting it aside. On the commencement of the period of limitation,
the Apex Court further observed as follows :-
“15. The highlighted portion of the judgment extracted above,
leaves no room for doubt that the period of limitation prescribed
under Section 34(3) of the Act would start running only from the
date a signed copy of the award is delivered to/received by the party
making the application for setting it aside under Section 34(1) of
the Act. The legal position on the issue may be stated thus. If the
law prescribes that a copy of the order/award
is to be
communicated, delivered, dispatched, forwarded, rendered or sent
to the parties concerned in a particular way and in case the law also
sets a period of limitation for challenging the order/award in
question by the aggrieved party, then the period of limitation can
only commence from the date on which the order/award was
received by the party concerned in the manner prescribed by the
law.”
The position of law that can be culled out from the above
decisions is that, delivery of the arbitral award under Section 31(5) must be on the party to the arbitration agreement who is in control of the
proceedings before the arbitrator.
Delivery to any other person
including the Counsel appearing for the parties to the arbitration does
not satisfy compliance of the provision of Section 31(5) of the
Arbitration Act.

In the light of the above legal position the date of delivery of the
award to the Advocate for the petitioner cannot be the starting point for
commencement of the period of limitation. In absence of any other
material on record the date claimed by the petitioner of receipt of the
award by him will have to be accepted as the correct date. Therefore, I
find no substance in the preliminary objection of limitation taken by the
respondent and hold that the petition filed is within the period of

limitation prescribed under Section 34(3) of the Arbitration Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION


Mr. Gaurang s/o. Late Vinod Doshi V/s. Vinay A. Choksi,

ARBITRATION PETITION NO. 846 OF 2010

CORAM :- SMT. R.P. SONDURBALDOTA, J.

Dated :-20th AUGUST, 2014.
Citation; 2015(2) ALLMR802 Bom

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Basic concept of signed copy of arbitration award

The case debated on whether the copy of award duly certified to be true copy by the umpire and then signing the award could be considered as a true copy as required under Section 14(2) of the Indian Arbitration Act (10 of 1940) - It was held that the document was an accurate and full reproduction of the original and was a copy of the same - Thus the document was a copy of the original and was a signed copy, as it was bearing the signature of the umpire

Supreme Court of India

Hindustan Construction Company ... vs Union Of India on 12 October, 1966

Equivalent citations: 1967 AIR 526, 1967 SCR (1) 543

BENCH:
WANCHOO, K.N.
MITTER, G.K.

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Limitation for setting aside Arbitration award would start running only from date signed copy of award is delivered to/received by the party

The highlighted portion of the judgment extracted above, leaves no room for doubt that the period of limitation prescribed under section 34(3) of the Act would start running only from the date a signed copy of the award is  

delivered to/received by the party making the application for setting it aside under section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law.

Supreme Court of India

State Of Maharashtra & Ors. vs M/S. Ark Builders Pvt.Ltd. on 28 February, 2011

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It is mandatory to deliver copy of award in Arbitration to party itself

 The view taken in Pushpa Devi Bhagat’s case (supra) is in relation to the authority given to an Advocate to act on behalf of a party to a proceeding in the proceedings itself, which cannot stand satisfied where a provision such as Section 31(5) of the 1996 Act is concerned. The said provision clearly indicates that a signed copy of the Award has to be delivered to the party. Accordingly, when a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act. The other decision cited by Mr. Ranjit Kumar in Nilakantha Sidramappa Ningshetti’s case (supra) was rendered under the provisions of the Arbitration Act, 1940, which did not have a provision similar to the provisions of Section 31(5) of the 1996 Act. The said decision would, therefore, not be applicable to the facts of this case also.

17. In the instant case, since a signed copy of the Award had not been delivered to the party itself and the party obtained the same on 15th December, 2004, and the Petition under Section 34 of the Act was filed on 3rd February, 2005, it has to be held that the said petition was filed within the stipulated period of three months as contemplated under Section 34(3) of the aforesaid Act. Consequently, the objection taken on behalf of the Petitioner herein cannot be sustained and, in our view, was rightly rejected by the Division Bench of the Delhi High Court.

Supreme Court of India

Benarsi Krishna Commit.& Ors. vs Karmyogi Shelters P.Ltd. on 21 September, 2012

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