BHARAT SANCHAR NIGAM LTD Vs. HARYANA TELECOM LTD

JUDGEMENT

(1.) These Appeals assail the Judgment of the learned Single Judge dated 15.3.2010 dismissing the Appellants? Objections under Section 34 of the Arbitration & Conciliation Act, 1996 (A&C Act for short) on the ground that they could not be entertained having been filed beyond the prescribed period of prescription set-down in third sub-section of that very Section. The learned Single Judge has applied Union of India vs Popular Construction Co., 2001 8 SCC 470 wherein their Lordships have clarified that "Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award „in accordance with? sub-section(2) and sub-section(3). Sub-section(2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section(3) would not be an application „in accordance with? that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbital award cannot be made beyond the period prescribed ". Considerations analogous to Section 5 of the Limitation Act, 1963 (Limitation Act) would palpably be available in terms of proviso to Section 34(3), that is, for the period spanning 30 days after three months have elapsed from the date on which the concerned party had received the Arbitral Award. We may immediately revert to Section 31(5) of the A&C Act which mandates that after the Arbitral Award is made, a signed copy shall be delivered to each party. The case of the Appellants is that a signed copy of the Arbitral Award was not delivered to them by the Arbitrator, although a photocopy thereof had been provided to it by the Respondents/Claimants. There is considerable controversy even with regard to the date on which the said photocopy was made available by the Respondents to the Appellants.

(2.) The Award in FAO(OS) No.290/2010 (in Arbitration Case No.113/98 arising out of Suit No. AA164/1997) is for a sum of ' 1,16,37,288/- together with interest at the rate of eighteen per cent per annum, in the event that the Appellants fail to make the payment within two months of the Award which was pronounced on 7.8.2000. The Award in FAO(OS) No.385/2010 (in Arbitration Case No.114/1998 arising out of Suit No. AA 163/1997) is for a sum of ' 1,49,78,142/- with interest at the rate of eighteen per cent per annum in the event that the Appellants fail to make the payment within two months of the Award which was pronounced on 7.8.2000. Although it is a matter of speculation whether the Objections filed by the Appellants would have found favour with the learned Single Judge, the fact remains that by declining to consider the Objections on the premise that they had been preferred beyond the prescribed period of prescription, the Union of India would become liable to discharge the principal sum of ' 2,66,15,430/- together with interest of ' 4,79,07,774/-. Negligent or egregiously incorrect legal action seems to have become the preserve of the Government and/or Corporations held or controlled by it. This is obviously because of lack of answerability of its officers, as the present case will make manifest.

(3.) The wisdom expressed by the Privy Council over a century ago in Nazir Ahmad vs King Emperor, 1936 AIR(PC) 253 continues to remain contemporarily contextual. The Privy Council observed that if an action has to be taken in a particular manner, it must be carried out in that manner only, else it may be held not to have been effected at all. The wisdom of this pronouncement is manifestly evident in the facts of the present case. This abiding reasoning in respect of strict compliance with the procedural requirement of a statute had been applied by the Hon?ble Supreme Court in Ramchandra Keshav Adke vs Govind Joti Chavre, 1975 1 SCC 559; Shiv Bahadur Singh vs State of Uttar Pradesh, 1954 AIR(SC) 322 and Deep Chand vs State of Rajasthan, 1961 AIR(SC) 1527. In Ramchandra, the Court was called upon to decide whether Section 5(3) of Bombay Tenancy and Agricultural Land Act, 1948, which deals with verification of the alleged surrender of possession by the tenant was compulsory, and the effect of its non-compliance. The Court opined that "the imperative language, the beneficent purpose and importance of these provisions for efficacious implementation of the general scheme of the Act, all unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one of these mandates would render the surrender invalid and ineffectual..... The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the purpose of this provision ". In Deep Chand, the Supreme Court adverted to the rule in Nazir Ahmad to hold that a statement of account which has not been recorded in strict compliance of Section 164 of Code of Criminal Procedure, 1973 would not be admissible as a confession. In Ram Phal Kundu vs Kewal Sharma, 2004 2 SCC 759, the Court declined to look into any extrinsic evidence to inquire into the question as to who shall be deemed to have been set up as a candidate by a political party and would only look at the paragraphs delineated by the Symbols Order of Election Symbols (Reservation and Allotment) Order, 1968 which lay down the mechanism for ascertaining when a candidate shall be deemed to be set up by a political party and the procedure for substitution of a candidate.