UNION OF INDIA Vs. MAA AGENCY

JUDGEMENT

(1.) ADMIT. Respondents waive service. By consent taken up for hearing and final disposal forthwith.

(2.) IN these proceedings under section 34 of the Arbitration and Conciliation Act, 1996, an Award of a sole arbitrator, dated 18th December, 2001 is called into question. The sole arbitrator in the present case was the Chief Commercial Manager of the Western Railway. The dispute between the parties related to a contract which had been entered into for the printing and distribution of the All India Railway Time Table---August 1998, in pursuance of a purchase order dated 13th July, 1998. Disputes arose between the parties and these were referred to arbitration. On 7th July, 2000 and on 9th August, 2000, the first respondent sought a reference to arbitration of two claims. The petitioners referred these two claims to arbitration on 8th August, 2001. Before the Arbitral Tribunal, the first respondent raised three claims, two of them being claims in respect of which a reference had been made and an additional claim. The petitioners filed their written statement and at this stage, it would be material to note that no objection was raised before the arbitrator either as regards his jurisdiction to entertain the third claim or in regard to the arbitrability of the claim. By the Arbitral Award, an amount of Rs. 10,21,050/- has been awarded to the first respondent under three heads of claim: (i) illegal deduction of payment as commission payable---Rs. 4,06,575/-; (ii) payment against copies of vendors---Rs. 4,20,000/-; and (iii) refund of amount against unsold copies returned by vendors---Rs. 3,14,475/ -. The Arbitral Award notes that the first respondent was to print and distribute 6,08,000 copies of the time table, out of which 8000 copies were to be given free of cost to the petitioner, 4,19,300 were to be distributed to vendors, a list of which was to be provided by the petitioner and 1,80,700 copies were to be purchased by the petitioner at the rate of Rs. 15/- per copy. There was a counter claim by the petitioner to the claim in arbitration. The Arbitral Award notes that the petitioner had settled the entire claim by imposing a penalty on the first respondent in accordance with the penalty Clause contained in the purchase order. The first respondent, it has been noted, has paid the penalty of Rs. 22,784/- on 21st January, 2000. The Union of India had in fact, released the performance guarantee of the first respondent which also suggested that the inspecting authority and the consignee had accepted the quality, quantity and delivery of the said time table to be satisfactory and in accordance with the terms of the purchase order. In these circumstances, the three claims as aforesaid have been granted. The counter claim has also been allowed to the extent of Rs. 1,20,000/ -.

(3.) AT the outset, it has been urged on behalf of the first respondent that the arbitration petition is barred by limitation. Now, the admitted fact is that the Arbitral Award was received by the petitioner on 18th December, 2001. Under section 34 (3), an application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the Arbitral Award. Section 9 of the General Clauses Act provides that in any Central Act or Regulation it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". Since the Arbitral Award in the present case was received on 18th December, 2001, having regard to the provisions of section 9 of the General Clauses Act, that day would have to be excluded. The period of three months would thus commence on and from 19th December, 2001 and expire on 19th March, 2002. The arbitration petition has been filed within a period of 30 days thereafter, in fact on the last of the 30 days which was 18th April, 2002. A Notice of Motion for condonation of delay has been instituted by the petitioner. In my view, sufficient cause has been shown to condone the delay of 30 days. The motion is accordingly made absolute and the delay of 30 days is condoned.