D.K. BHUIYA Vs. A. K. SINHA

JUDGEMENT

(1.) This Appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 (henceforth 'the Act, 1996') is directed against the order dtd. 5/11/2022 passed by the learned II Additional District Judge, Durg (C.G.) in M.J.C. Civil No. 17/2022, whereby the learned Court has rejected the application preferred by the appellant under Sec. 34 of the Act, 1996 on the ground of limitation by declining to condone the delay, and consequently affirmed the arbitral award dtd. 18/8/2016 passed by the learned Sole Arbitrator.

(2.) (a) Briefly stated facts of the case are that the appellant purchased Flat No. 21 situated on the second floor of "Kanchanpuram Apartment" from the respondent/developer pursuant to an agreement dtd. 19/12/2007 for a total sale consideration of 16,50,000/-, which amount was admittedly paid through cheques. Subsequently, the said amount reached upto 25,00,000/- owing to interior, furniture, putti work, etc. According to the appellant, despite receipt of the entire consideration, the respondent failed to provide the promised amenities and delivered possession of a flat suffering from serious construction defects, including deficient finishing work, non-functional lift facility, etc. thereby compelling the appellant to institute Consumer Complaint No. CC/14/69 before the District Consumer Disputes Redressal Forum, Durg, on 12/3/2014 alleging deficiency in service and unfair trade practice. The District Forum, upon appreciation of the material on record, allowed the complaint vide order dtd. 22/8/2015 and awarded compensation of 4,55,000/- in favour of the appellant. In appeal preferred by the respondent, the State Commission remanded the matter for technical inspection. Thereafter, upon reconsideration and in light of the inspection report, the District Forum once again awarded compensation of the same amount of 4,55,000/- by order dtd. 19/12/2016. The respondent carried the matter in further appeal, whereupon the State Commission, vide order dtd. 22/4/2017, partly modified the award and reduced to 3,23,000/- (Rs.2,23,000.00 towards compensation and Rs.1,00,000.00 towards mental harassment). The respondent herein thereafter filed Revision Petition No. 1421/2017 (Arvind Sinha @ A.K. Sinha v Dilip Kumar Bhuiyan) before the National Commission, New Delhi, wherein the respondent herein personally appeared before the Forum and the appellant herein represented through his counsel and made a submission that the parties arrived at an amicable settlement for a sum of 2,23,000/-, and the proceedings were finally disposed of on 6/2/2018 in terms of the compromise, thus bringing the consumer dispute between the parties to a quietus.

(3.) Learned counsel for the appellant submits that limitation under Sec. 34(3) commences only from the date of receipt of a signed copy of the award. In absence of proper service in terms of Sec. 31(5), the question of delay does not arise. The appellant had acted with due diligence immediately upon gaining knowledge of the award and had been bona fide in prosecuting the remedy. According to the learned counsel, the learned Court has failed to consider that a litigant prosecuting a remedy in good faith ought not to be non-suited on technical grounds. Learned counsel would submit that the learned Court has not at all appreciated the fact that copy of the award was not provided to the appellant by the arbitrator. She would submit that when in the execution proceedings the copy of the award provided to the appellant, he immediately moved the application under Sec. 34. Despite the said fact and without appreciating the entire facts and circumstances of the case in its true perspective rejected the said application. The impugned order, therefore, suffers from patent illegality and misapplication of the law relating to limitation and deserves to be set aside.