TMI Blog2016 (6) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned arbitrator inspite of the postman having posted the intimation, the limitation would never commence for filing a petition under Section 34(3) of the Arbitration Act and the beneficiary of the award would never be able to apply for execution of such award. An unclaimed service amounts to a good service and amounts to refusal to accept the delivery of the arbitral award which was sent by the learned arbitrator at the correct address and the intimation was posted by the postman to the petitioner. The limitation for filing of the arbitration petition under Section 34(3) of the Arbitration Act would commence from the date on which the intimation was posted by the postman and the same was not collected by the petitioner from the post office. Admittedly, the intimation was posted in this case by the postman on 21st July 2014 and 22nd July 2014 whereas the the petitioner has lodged the arbitration petition only on 22nd June 2015. The petition thus having been filed after expiry of three months from the date of deemed delivery of such award, the petition in my view is barred by law of limitation prescribed under Section 34(3) of the Arbitration Act. Arbitration Petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less the petitioner would have refused to accept the signed copy of the arbitral award from the learned arbitrator, limitation would not have commenced till the signed copy of the arbitral award was received by the petitioner from the learned arbitrator, learned counsel placed reliance on the judgment of the Supreme Court in the case of Union of India Vs.Tecco Trichy Engineers Contractors, reported in (2005) 4 SCC 239 and in particular paragraphs 8, 9, 12 and 13 thereof, the judgment of the Supreme Court in the case of State of Maharashtra and Ors. Vs. Ark Builders Private Limited, reported in (2011) 4 SCC 616 and in particular paragraphs 13 to 17 thereof, the judgment of this Court in the case of Mr.Gaurang s/o. late Vinod Doshi Vs. Vinay A. Choksi, reported in 2015(2) ALL MR 802 and in particular paragraphs 10 and 12 thereof and the judgment of this Court in the case of Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar, reported in 2001 (3) Bom CR 21 and in particular paragraphs 7 to 9 and 11 thereof. 5. Relying upon these three judgments, it is submitted by the learned counsel that requirement under Section 31(5) of the Arbitration Act for delivery of a signed copy of the awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected the copy of the award from the learned arbitrator on 23rd July 2014. 9. Learned senior counsel for the respondent invited my attention to the letter dated 26th February 2015 addressed by the petitioner to the learned arbitrator alleging that the petitioner had come to know that the learned arbitrator had made an award, however, the petitioner did not have any details as to time, date and month of the said award, if any already passed. By the said letter, the petitioner requested the learned arbitrator to supply to the petitioner an authenticate copy of the award delivered by the learned arbitrator which was required for the purposes of adopting further legal remedy as may be available in law. In the said letter, the petitioner also contended that under the provisions of the Arbitration and Conciliation Act, 1996, time would commence against the petitioner only after the date of receipt of the authenticated copy of the award from the learned arbitrator. 10. Learned senior counsel also invited my attention to the letter dated 3rd March 2015 addressed by the learned arbitrator to the petitioner expressing surprise that the petitioner had so far not received the copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of business. He submits that since the learned arbitrator had sent a copy of the signed award at the correct address of the petitioner by registered post A.D., service was deemed to have been effected upon the petitioner in view of Section 27 of the General Clauses Act, 1897. 13. Learned senior counsel for the respondent also invited my attention to the averments made by the petitioner in the petition and also in the additional affidavit filed before this Court and would submit that the plea raised by the petitioner about knowledge of the learned arbitrator rendering the impugned award was totally false and inconsistent. He submits that the said copy of the arbitral award was already relied upon by the respondent in another proceedings filed by the respondent against the petitioner. He submits that the petitioner had not disclosed in the arbitration petition that the copy of the award was though sent by the learned arbitrator at the correct address of the petitioner, the petitioner had unclaimed the copy of the said award though intimation was posted by the postal department. Learned senior counsel distinguishes the judgment relied upon by the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isited his house in the afternoon and he had found no one to deliver the said packet. Those allegations were made for the first time in the said additional affidavit filed on 6th June 2016. No proof of such alleged visit of the deponent to Bhopal or that his wife was employed are furnished. 18. In the averments made in paragraph 25 of the arbitration petition, the petitioner has admitted that the Director of the petitioner came to know that on 18th July 2014, learned arbitrator had passed an award. On 26th February 2015, the petitioner addressed a letter to the learned arbitrator stating that the Director of the petitioner had come to know that the learned arbitrator had made an award. However, he did not have any details as to the time, date and month of the said award, if any already passed. The respondent had brought on record the fact of declaration of award in another proceedings filed by the petitioner against the respondent and had annexed a copy of the said arbitral award in the month of August 2014 in the said proceedings. It is thus clear that though the petitioner was aware of the declaration of the impugned award by the learned arbitrator in the month of July 2014 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last known address of the petitioner. The petitioner however did not collect the copy of the said signed award though the intimation was posted twice by the postman. 22. It is not in dispute that the petitioner had lodged this arbitration petition only on 22nd June 2015 whereas the intimation was posted by the postman on 21st July 2014 and 22nd July 2014. Since the petitioner not having claimed the copy of the signed award though the intimation was posted on 21st July 2014 and 22nd July 2014, in my view, it would amount to a good service and would amount to refusal on the part of the petitioner to accept service of the said signed copy of the award delivered by the learned arbitrator under Section 31(5) of the Arbitration Act. In my view, the learned arbitrator had already complied with the said provision under Section 31(5) by delivering the signed copy of the award to each of the parties to the arbitral proceedings. 23. Supreme Court in the case of C.C. Alavi Haji (supra) while interpreting the provisions of Section 138 of the Negotiable Instruments Act, 1881 has held that if a strict interpretation is given that the drawer should have actually received the notice for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not claim copy of the signed award sent by the learned arbitrator inspite of the postman having posted the intimation, the limitation would never commence for filing a petition under Section 34(3) of the Arbitration Act and the beneficiary of the award would never be able to apply for execution of such award. The arguments of the learned counsel for the petitioner, in my view, is ex facie contrary to the principles laid down by the Supreme Court in the case of C.C. Alavi Haji (supra) and judgment of the Calcutta High Court in the case of New Globe Transport Corporation (supra), contrary to Section 3 of the Arbitration and Conciliation Act, 1996, Section 27 of the General Clauses Act, 1897 and also to the provisions of Section 31(5) of the Arbitration Act, 1996. 27. In my view, unclaimed service amounts to a good service and amounts to refusal to accept the delivery of the arbitral award which was sent by the learned arbitrator at the correct address and the intimation was posted by the postman to the petitioner. In my view, the limitation for filing of the arbitration petition under Section 34(3) of the Arbitration Act would commence from the date on which the intimation w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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