IBRAHIM FATEHPURI Vs. AXIS BANK LTD.

JUDGEMENT

(1.) The Court: The respondent in this application has taken a preliminary point of maintainability of the application for setting aside of the award on the ground that the application falls short of the time prescribed under Section 34(3) of The Arbitration and Conciliation Act, 1996. According to learned Counsel appearing for the respondent, the impugned award is dated 14th December, 2015 which means that the statutory period of three months elapsed on 22nd March, 2016 and the further period of 30 days ended on 21st April, 2016. The application for setting aside of the impugned award was filed on 9th August, 2016. Learned Counsel relies on a letter of 14th December, 2015 from the learned Arbitrator which states that a signed copy of the Award is being enclosed with the letter to the three parties addressed in the said letter which includes the petitioner no.1 (Md. Ibrahim Fatehpuri) and Md. Afsar Fatehpuri (the petitioner no.2). Counsel places the tracking report which shows that the "article" was booked on 22nd December, 2015 and was delivered on 23rd December, 2015 and submits that the persons mentioned in the letter of the Arbitrator would indicate that the petitioner received the signed copy of the Award on 23rd December, 2015. Counsel relies on a document downloaded from the India Post website showing that "Item Delivered" means that "The article has been delivered to the recipient". Relying on these documents, Counsel submits that the application is clearly barred under Section 34(3) of the 1996 Act. Counsel also relies on Section 3(2) of the 1996 Act, relating to receipt of written communications which provides that the communication is deemed to have been received on the day it is so delivered.

(2.) Learned Counsel for the petitioners disputes the above contentions and states that the petitioner came to know of the impugned Award on and around 10th May, 2016 from an application for dismissal filed by the respondent in a suit instituted by the petitioner before the learned City Civil Court. The specific date mentioned in paragraph 6 of the application as to the date of knowledge of the petitioner is 10.05.2016. Learned Counsel appearing for the petitioner submits that the petitioner is yet to receive a signed copy of the impugned award. Counsel relies on Section 31(5) of the Act which provides that after the arbitral award is made, a signed copy shall be delivered to each party. Counsel lays emphasis on the word "party" and places several documents in this regard, namely, the tracking reports in relation to earlier notices sent to the petitioners which specifically mentions "Item Delivered [To: MD AFSAR FATEHPURI]" and other reports indicating "Item Delivered [To: IBRAHIM FATEHPURI]". Counsel submits that the postal record should indicate that item has been delivered specifically to the intended recipient by name, in this case the petitioners and that the tracking report relied on behalf the respondent does not contain any such specific reference to the petitioners. Counsel further disputes the documents showing signature of the addressee annexed to the affidavit of the respondent and submits that the signatures appearing on the documents of acknowledgment are not that of the petitioners. Counsel is unable to shed light on whose signature appears on the acknowledgment receipts. In reliance of the mandate of Section 31(5) of the Act, Counsel places Benarsi Krishna Committee versus Karmyogi Shelters Private Limited reported in (2012) 9 SCC 496 which held that under Section 31(5), a copy of the award had to be delivered to the party itself and service on its counsel did not amount to service within the meaning of the said section. This decision was relied on in State of West Bengal v. M/s. Motilal Agarwala reported in AIR 2016 Calcutta 271 a decision of the Division Bench of this Court which held that a signed copy of the Award has to be received by a party as indicated under Section 31(5) for time to start running under certain provisions of the 1996 Act including for setting aside an Award under Section 34(3) of the Act. The Division Bench referred to several authorities for the proposition that limitation under Section 34(3) would only start running from the date of receipt by the party of a signed copy of the Award in the manner prescribed by law. The Division Bench relied on Union of India v. Tecco Trichy Engineers and Contractors reported in (2005) 4 SCC 239 which held that delivery of an arbitral award under Section 31(5) is not a matter of mere formality but of substance since it is only after the stage contemplated under Section 31 that the arbitral proceedings reach closure or taken to be terminated within the meaning of Section 32 of the Act. Counsel further disputes the meanings indicated by the term "Item Delivered" in the India Post website by pointing to a disclaimer which clarifies that the information provided in the website is not a representation or a warranty as to the completeness or accuracy thereof.

(3.) I have heard learned Counsel for the parties and considered the materials shown in support of the arguments. The entire issue hinges on the legislative intent behind Section 31(5) of the Act. Under this section, a signed copy of the Award must be delivered to a "party", thereby meaning a party to the arbitration proceedings. There is no doubt that the significance of fulfilling the requirement of this section is by reason of the fact that valuable rights would accrue to the party to the arbitration on receiving a signed copy of the Award for the purposes of initiating any of the acts contemplated under Section 33 (for correction and incorporation of an Award or an additional award) and Section 34 (for challenging the Award). Not only would valuable rights accrue to the party for taking steps for affirming or challenging the Award but also for ascertaining as to the time frame within which such action is to be initiated. In other words, the party would also be informed as to the starting point and the end point of the time frame for putting in motion the rights flowing from receipt of a signed copy of the Award.