WEST BENGAL HOUSING BOARD Vs. DELTA CONSTRUCTION

JUDGEMENT

(1.) This arbitration petition is for setting aside award dated 4th July, 2017. A point of maintainability was taken at the outset on behalf of respondent.

(2.) Today, Mr. Datta, learned advocate appears on behalf of petitioner and submits, Deputy Director of his client was the person concerned as person directly connected with and involved in the proceedings, in control of the proceedings before the Arbitrator. He submits, relation between the office or designation and the person discharging the functions is of most importance. It is only the person discharging functions of office designated Deputy Director, who would be the person directly connected with and involved in the arbitral proceedings or who can be said to have been in control of it before the Arbitrator. There was change in personnel. Hence, service upon outgoing person after having moved on to another post or designation cannot be construed as compliance with substantive provision in sub-section (5) of section 31, Arbitration and Conciliation Act , 1996. The person who was Deputy Director stood promoted to Joint Director prior to making and publication of the award. Nevertheless, the award was served on said person, who at that point of time was Joint Director and thereby not the person concerned or connected with the reference as on behalf of his client. So it is that when respondent moved in execution, new incumbent in office of Deputy Director discovered existence of the award and hastened to take steps to challenge it. Point in time of discovery is from when three months and thirty days is to be reckoned for purpose of adjudication of this point of maintainability. He also relies on Tecco Trichy Engineers and Contractors (supra), to paragraphs 7, 10 and 11. He submits, in Anil Kumar Jinabhai Patel vs. Pravinchandra Jinabhai Patel, reported in (2018) 15 SCC 178, Supreme Court, in similar facts where award-debtor had discovered existence of it on award-holder having moved in execution, said period of limitation would start only from the date when the persons not served with the award, but had discovered existence of it, got it.

(3.) Mr. Banerjee, learned advocate appears on behalf of respondent and submits, it would appear from record of appearance of 34th sitting of the reference held on 7th March, 2017 that the person, who had since got promotion to office of Joint Director, had appeared to represent respondent. The disclosure is at page 58 of his client's opposition. There was no intimation to the Tribunal regarding said person having become functus officio or had handed over charge to some other person as incumbent in the office. It is thereafter on 6th July, 2017 that, on behalf of respondent, the person all along representing it in the reference received the award on putting his signature and designation as Joint Director.