INDERJEET MEHTA Vs. UNION OF INDIA

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 9-7- 2007 passed by the learned Additional Deputy Commissioner, Shillong in F.A.O. (ARB Misc. Appeal) No. 7(T) of 2003 allowing the appeal against the order dated 2-9-2003 in (ARB) Misc. Case No. 4(T) of 1998 making the award dated 20-12- 1997 passed by the Sole Arbitrator the rule of the Court.

(2.) The facts giving rise to this case, briefly stated, are that petitioner and the respondent had entered into the contract agreement No. CESZ/MHB/11 of 87-88 for certain Accn work allied services at Mohanbari and that during the currency of the work, a dispute arose between the parties in connection with the execution of the work. The dispute was accordingly referred to arbitration by the parties. The respondent No. 2 was appointed as the sole arbitrator, who, after hearing the parties on the claim and counter-claim, had published the award on 20-12-1997. The petitioner thereafter asked the learned Assistant to Deputy Commissioner, Shillong under Sections 14 and 17 of the Arbitration Act, 1940 ( the Act for short) for making the award rule of the Court. In the meantime, the respondent No. 1 also filed an application under Sections 30 and 33 of the Act for setting aside the award on the ground of misconduct. The respondent No. 1 had challenged the award on the grounds of non-application of mind by the arbitrator, who also misconducted himself and proceeded to pass the impugned award without jurisdiction and also on the ground that the application filed under Sections 30 and 33 of the Act was hopelessly time-barred. The facts found by the learned Additional Deputy Commissioner (ADC) are that the application under Sections 14 and 17 of the Act was filed on 2-2-1998; that on 9-4-1998, the Court had recorded the filing of the award in Court by one A.K. Balmiki on behalf of the arbitrator; that by the same order, the Court had directed the respondent to issue notice upon the petitioner; that on 27-5-1998, the Court had recorded that notice had been duly served and thence fixed 19-3-1998 for filing of written objection, if any and that, according to the learned A.D.C., the respondent No. 1 had received the notice only on 27-5-1998. The A.D.C. had, however, noted that the summons report was not in the records of the Lower Court. The learned A.D.C. also recorded that the respondent No. 1 had filed the objection petition under Sections 30 and 33 of the Act on 26-6-1998, and the same was duly received on 29-6-1998. According to the learned A.D.C., the petition under Section 30 and 33 was filed within the time period of 30 days from the date of receipt of the notice or intimation from the Court, and the finding to the contrary made by the learned Assistant was clearly erroneous. As for the allegation of misconduct on the part of the sole arbitrator, the learned ADC did not find any infirmity in the findings of the sole arbitrator and took the view that the claim were justified and did not cast any negative aspersion on the conduct of the sole arbitrator. However, the learned ADC found fault with allowing the counter-claim of the petitioner on the ground that the same were excepted matters, which could not have been awarded. He accordingly allowed the appeal by upholding the award sans the award on counter-claim amounting to Rs. 6,94,700/-. The correctness of these findings are under challenge in this revision.

(3.) Mrs. P.D.B. Baruah, the learned counsel for the petitioner, contends that in deciding the issue of limitation, the appellate court has overlooked the glaring fact that the award was filed before the learned Assistant to DC on 9-4- 1998 by one A,K. Balmiki of Chief Engineer (AF) vide the letter dated 30-3-1998 as representative of the respondent, which amounts to filing of the award by the respondent itself and is to be construed as notice by the respondent itself thereby obviating the need to issue separate notice: the period limitation, therefore, started from 9-4-1998 when the award was filed, not from the date of receipt of notice from the Court and the period of limitation of 30 days got expired on 9-5-1998. Thus, according to the learned counsel, as the period of limitation for filing objection got expired on 9-5-1998, such objection filed on 29-6-1998 is hopelessly time-barred. She strongly relies on the decisions of the Apex Court in Food Corporation of India v. E. Kuttapan, 1993 3 SCC 445 and Nilkantha Sidramappa Ningashetti, AIR 1962 SC 666 to fortify her submission. She next contends that the appellate court has failed to properly apply his mind by interfering with the award in respect of the counter-claim when no objection was ever raised by the respondent at any point of time during the arbitral proceedings either on is admissibility or on merit or on the amount claimed therein: he is thus barred from raising such objection before the appellate court. In support of her contention, she relies on the decision of the Apex Court in Jugal Kishore Prabhatilal Sharma & ors. V. Vijanyandra Prabhatilal Sharma and another, 1993 1 SCC 114. She, therefore, urges this Court to set aside the impugned judgment and order and restore the award of the sole arbitrator in toto. Refuting the submission of the learned counsel for he petitioner, Mr. R. Debnath, the learned Central Government Counsel (CGC) appearing for the respondents, submits that issuance of notice under Section 14(2) by the Court is a mandatory requirement, and the period of limitation for filing objection seeking setting aside of the arbitration award would commence only from the date of service of notice issued by the Court upon the parties and not from the date of knowledge of the award. To buttress his contention, reliance is placed by him on the following decisions of the Apex Court:-