TMI Blog2007 (3) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Such a prayer has also been made by the respondent by way of I.A. No. 1759/2006 which has been filed under Order 7 Rule 11 of the Code of Civil Procedure. 3. Inasmuch as the two aforesaid applications entail consideration of the same facts, the same have been taken up together for hearing and are being disposed of by this common order. 4. From the facts ultimately emerging on record, there is no dispute to the material facts relating to the date on which the award dated 25th July, 2005 was served upon the petitioner. The admitted position is that the award was received in the office of Chief Engineer, Delhi Zone on the 28th of July, 2005. The objections were filed by the petitioner in this Court on 28th November, 2005 under Section 34 of the Arbitration Conciliation Act, 1996 being O.M.P. No. 448/2005. 5. Apart from these facts, there is dispute on all issues between the parties to the manner in which the delay has to be condoned. 6. According to Mr. R.V. Sinha, learned Counsel for the petitioner, the award has to be held to have been received by it only on 3rd August, 2005. He further contended that assuming that even if it was received on 30th July, 2005, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conciliation Act, 1996 is a special enactment which is intended to streamline and expedite arbitration proceedings. The extent of judicial intervention has been clearly stipulated in the enactment. Section 5 of the statute contains a non-obstante clause setting the limits to the extent of permissible judicial intervention. 12. The Arbitration Conciliation Act, 1996 consolidates the law relating to the arbitration on all matters connected therewith or incidental thereto. The examination of the scheme of the statute shows that it provides the complete machinery so far as arbitration is concerned. My attention has been drawn to Section 3(1)(a) and Sub-section (2) of the statute which governs the manner in which written communications are to be received. These statutory provisions deserve to be considered in extenso and read thus: 3. Receipt of written communications: (1) Unless otherwise agreed by the parties,- (a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and xxx xxx xxx (2) The communication is deemed to have been received on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the award to each party. In the present case, there is no dispute that the award has been so sent to both parties. A dispute has been raised at the instance of the petitioner that the 'delivery' which is statutorily recognised has to be construed from the date the award falls in the hands of the addressee or the concerned person. 17. My attention has been drawn to the stand of the petitioner before this Court in I.A. No. 9821/2005 filed under Section 34(3) of the Arbitration Conciliation Act, 1996, wherein it was stated that 'the certified copy of the impugned award dated 28th July, 2005 was received by the petitioner on 3rd August, 2005'. 18. The respondent had vehemently urged that this was a mis-statement and that the award was actually received by the petitioner on the 28th July, 2005. It was only in court on the 28th of July, 2006 that the petitioner admitted for the first time that on 28th July, 2005 the award was received by the Chief Engineer who forwarded the same to the Garrisson Engineer whose office received this award on 3rd of August, 2005. 19. Perusal of the award in the instant case shows that the Chief Engineer (Delhi Zone) was a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of a huge organisation like the Railways, the copy of the award has to be received by the person who has knowledge of the proceedings and who would be the best person to understand and appreciate the arbitral award and also to take a decision in the matter of moving an application under Sub-section (1) or (5) of Section 33 or under Sub-section (1) of Section 34. 21. Therefore, because the service of the award of the arbitrator had been effected on a person who had not been a party in the arbitration proceedings and time was taken by the department to take appropriate steps, the court was of the view that service of notice on the concerned Chief Engineer would be the starting point of limitation. 22. Before this Court, there is no dispute that the Chief Engineer, Delhi Zone whose office received the award on 28th July, 2005 was the authority concerned who had signed the contract and contested the arbitration. Consequently, the attempt made by the objector to orally urge that the limitation has to be construed from the date on which the award was received by the Garrisson Engineer is of no avail. In my view, the award has to be deemed as having been delivered to the concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month. 26. Such meaning of a 'month' was accepted by this Court in the pronouncement of the Division Bench reported at AIR 1973 Delhi 58 Daryodh Singh v. UOI and Ors. In this behalf, the court held thus: 15. The deposit of the amount of Rs. 4500/- was actually made on May 16, 1960. It has, Therefore, to be seen whether the deposit was made 'two months prior to 15-7-1960'. In its ordinary accepted sense the expression 'month' means a 'calendar month' and not a 'lunar month'. xxx xxx xxx Thus one month counted from July 15, 1960 would be on June 16 and the second month counted from June 16 would be on May 17, 1960. Evidently, Therefore, the deposit made on May 16, 1960 was two months prior to July 15, 1960. 27. In AIR 1970 AP 234 In re V.S. Metha and Ors., the court considered the expression 'three months of the date' in Section 106 of the Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he calculation effected hereinabove, I have found that looked at from whichever angle, the condonable period of thirty days has expired before the 27th November, 2005. Therefore nothing turns on the fact that 27th of November, 2005 was a Sunday. It is not the petitioner's contention that 24th to 26th of November, 2005 were non-working days for the courts. 35. I have noticed the statutory provisions hereinabove. I find that the statute does not permit any condensation of delay upon lapse of 30 days after 3 months have elapsed after the receipt of the award. In this behalf, it would be topical and instructive to advert to the principles laid down by the Apex Court in the judicial pronouncement reported at AIR 2001 SC 4010 entitled UOI v. Popular Construction Co., wherein the court was required to consider the question as to whether Section 5 of the Limitation Act, 1963 would apply to proceedings under Section 34 for setting aside the arbitral award. In this behalf, the court had held thus: 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). In our opinion, this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation of delay. Despite the noting by the Chief Engineer on 30th July, 2005 that the matter needed urgent attention, I find that the petitioner has proceeded in the matter most casually. As per the averments in I.A. No. 9821/2005, the Government counsel was approached for the first time only on 5th September, 2005. It has been stated that she refused to give an opinion in the matter on 9th October, 2005. Therefore, opinion of a senior counsel was sought who also refused to give his opinion. No specific dates have been given in regard to this averment. No communications in this behalf have been placed before this Court. Thereafter, steps were taken only on 28th October, 2005 to seek opinion of the Legal Adviser (Division) without opinion of the government counsel. In para 6 of the application, the petitioner has stated that on 8th November, 2005, the litigation cell of the Ministry of Law and Justice, Delhi High Court was approached for appointment of a new government counsel for opinion and for filing objections. No counsel was appointed by the litigation cell in the absence of advice of the Legal Adviser (Division) to file objections and absences of a decision taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1996) DLT 99 DDA v. Ramesh Kumar) This Court in several judgments has noted the manner in which matters are proceeded with utmost casualness on the part of the State and its officials. In this behalf, in a decision rendered on 2nd December, 1988 reported at 37 (1989) DLT 123 UOI v. Mangat, noticing the judgments of the Apex Court where delay was condoned observed thus: 4. ...The Supreme Court was thus concerned with isolated cases of said Arbitrations. What we are facing in this Court is a spate of delayed appeals without any proper and convincing Explanation or even an attempt in doing so. It is a common experience of Benches of this Court that the condensation applications are in a cyclostyled form and only the dates and days are filled in hand. The stay applications are also mechanically drafted and are in one standard cyclostyled form. Usually, the appeals are filed with defects. After the Registry points out the defects, the defects are not removed for months together. We do not think that the Supreme Court judgments can be usefully availed of by the union of India in the colossal situation of negligence and delays as we find in this Court. In fact, it appears, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be strictly construed as it deprives a person of his land without his consent. A golden rule for reconciliation of these conflicting considerations would be to use the discretion with commonsense. Extreme positions of either not condoning the delay howsoever negligible it may be or to condone the delay howsoever large and unjustifiable it may be should be avoided. The discretion has to be exercised on the basis of the facts of each case with commonsense and public interest in view. 42. There is, however, yet another angle to the miscarriage of public justice. Despite the anguish expressed by the courts, there is neither change in work habits nor in attitudes. The delays, it is experienced, arise out of not only apathy but on account of failure to discharge official and assigned duties. The sheer effort in ensuring dispensation of substantial justice results in the recalcitrant and negligent official from going scot free despite the drastic consequences of their delay. Even if the costs of the judicial time which is utilised in hearing and disposal of applications seeking condensation of delays were to be ignored, it is important to notice statutes as the Arbitration Conciliat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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