TMI Blog2018 (5) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of filing as 19.04.2018, the petitions would be beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award and this Court would not have the power to condone the delay even if the petitioner is able to make out a sufficient cause for this delay - It was incumbent on the petitioner to have served a copy of the petition(s) on the respondents before filing the present petition. In absence of such prior notice to the respondents, the filing itself cannot be considered as valid in law, so as to stop the period of limitation. Petition dismissed. - O.M.P. (COMM) 199/2018, I.A. Nos. 6320/2018, 7584/2018, O.M.P. (COMM) 200/2018 and I.A. Nos. 6323/2018, 7591/2018 - - - Dated:- 29-5-2018 - Navin Chawla, J. For the Appellant : Viraj Kadam, Adv. For the Respondents : Sacchin Puri, Sr. Adv., Anirudh Bakhru, Mehak Tanwar and Kamil Khan, Advs. JUDGMENT Navin Chawla, J. 1. These petitions have been filed by the petitioner challenging the Arbitral Award dated 10.11.2017 passed by the Sole Arbitrator in DAC/1195/05-16. 2. Learned senior counsel for the respondents submits that the copy of the petition(s) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said requirement. 6. In Haridwar Singh v. Bagun Sumbrui Ors. (1973) 3 SCC 889, the Supreme Court had held that for determining the question whether a provision in a statute, or a rule is mandatory or directory, no universal rule can be laid down. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be construed as mandatory. 7. In M.Y. Ghorpade v. Shivaji Rao M. Poal Ors. (2002) 7 SCC 289, the Supreme Court while considering the provision of Section 117 of the Representation of the People Act, 1951, held that the stipulation that at the time of presentation of an election petition, the petitioner shall deposit a sum of ₹ 2000/- as security for the costs of the petition, was mandatory in nature. 8. Section 34 (5) of the Act has been introduced in the Act by way of the amendment made pursuant to the recommendations of the Law Commission of India in its 246th Report. 9. The Law Commission of India in its 246th Report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a time limit under section 48 (3), which mirrors the time limits set out in section 34 (3), and is aimed at ensuring that parties take their remedies under this section seriously and approach a judicial forum expeditiously, and not by way of an afterthought ............ 10. The intent of the legislature clearly is that the parties must take their remedy as provided in Section 34 of the Act seriously and approach a judicial forum expeditiously and not by way of an afterthought. Unnecessary delays in adjudication of such objections are also to be avoided. It is with this intent that the legislature in form of Section 34(5) has mandated that the party filing its challenge to an arbitral award under Section 34 of the Act must issue a 'prior notice' to the other party before filing such application. This would ensure that the other party would remain present when such application is listed for hearing. Another important object sought to be achieved by this amendment is that under Section 36 of the Act as amended by the same Amendment Act, the arbitral award becomes enforceable immediately after the time for making an application to set aside the arbitral Award under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. This objective cannot be said to be achieved if the party, challenging the award, for any reason, does not issue notice prior to filing of the application. Once the objective behind the amendment is taken into account, the decisions, relied upon by the learned Counsel for the appellant, are not found misplaced. Unless a notice under Section 80 of the Code of Civil Procedure with sufficient time of two months are served on the Government or its officials, as contemplated, there is no inherent right to file a suit against the Government; so is the case at hand. Unless there is compliance with the statutory need of sending a prior notice, there is no inherent right of filing the application, under Section 34 of the 1996 Act, challenging an award. If there is no right to initiate a proceeding, its continuation, if filed, ignoring the statutory provision, does not give right to its continuation. It cannot be regularized by subsequent issuance of notice by the learned Court below. The notice, as prescribed by Section 34 of the 1996 Act, is mandatory before proceeding with the filing of an application under Section 34 of the 1996 Act. 13. In Shamsudeen v. M/s. Shreeram Transport F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of the application of the proviso? Is it 'entertained' when it is filed or it 'entertained' when it is admitted and the date is fixed for hearing or is finally 'entertained' when it is heard and disposed of? Numerous cases exist in the law reports in which the word 'entertained' or similar cognate expressions have been interpreted by the courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present we must say that if the legislature intended that the word 'file' or 'receive' was to be used, there was no difficulty in using those words. In some of the statues which were brought to our notice such expressions have in fact been used. For example, under order 41, Rule 1 of the Code of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc.; in s. 17 of the Small Causes Courts Act, the expression is 'at the time of presenting the application'. In section 6 of the Court Fees Act, the words are 'file' or 'shall be reviewed'. It would appear from this that the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be considered as valid in law, so as to stop the period of limitation. 18. The Award challenged in the present petitions has been passed on 10.11.2017 and it is not disputed that a copy of the same had been handed over by the Arbitrator to the parties on the same date. 19. Section 34(3) of the Act provides that an application under Section 34 of the Act can be filed only within a period of three months from the date of the receipt of the Arbitral Award. Proviso to Section 34(3) of the Act states that the Court may condone the delay in filing of the said application under Section 34 of the Act for sufficient cause being shown by the applicant, however, cannot condone the delay beyond 30 days from the expiry of three months from the date of the receipt of the Arbitral Award. In the present case, taking the date of filing as 19.04.2018, the petitions would be beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award and this Court would not have the power to condone the delay even if the petitioner is able to make out a sufficient cause for this delay. 20. The same view has been taken by the Supreme Court in Anil Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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