When Application for condonation of delay in proceeding U/S 34 of Arbitration Act is liable to be rejected?

IN THE HIGH COURT OF MANIPUR
AT IMPHAL

Arbitration Appeal(J2) No.1 of 2015

M/S Toijam Achouba Singh Sons
V
The Union of India

BEFORE
HON’BLE THE CHIEF JUSTICE L.K. MOHAPATRA
HON’BLE MR.JUSTICE SONGKHUPCHUNG SERTO

Date of judgment :: 06.05.2016
Citation: AIR 2017 Manipur 8

These 4(four) appeals arise out of a common order dated 23.12.2014 passed by the learned District Judge, Manipur East in 4(four) Judicial Misc. Cases arising out of 4(four) Arbitration Execution cases.

[2] The appellant in all the four appeals is a Contractor registered with the Indian Army. He was being entrusted with the work of supply of firewood/Charcoal, Lime quick at Leimakhong for the period from 1.4.2009 to 31.3.2010 under a contract dated 31.1.2009. Similarly, he was also entrusted with the work of supply of Egg, fish at the supply Depot for the period from 1.4.2009 to 31.3.2010 under a separate contract dated 31.1.2009. Two other contracts were also entered into between the parties for supply of egg at different places for the same period as well as vegetables during the same period. Dispute arose between the parties in respect of all the four contracts and arbitration clause was invoked. The Arbitrator passed awards in respect 3 of the four contracts and the awards were passed against the present appellant by the Arbitrator in respect of all the four contracts. The respondents levied execution cases before the learned District Judge, Manipur East in respect of the four awards passed in its favour and the appellant was issued notice in the execution cases. After receipt of notice in the execution cases, the appellant appeared before the learned District Judge and filed four separate applications u/s 34 of the Arbitration and Conciliation Act praying for setting aside the award and four separate applications were also filed u/s 34(3) of the Arbitration and Conciliation Act read with Section 5 of the Limitation Act for condoning the delay in filing the applications u/s 34 of the Act. These four applications for condoning the delay were dismissed by the learned District Judge in the impugned order and consequently the said order has given rise to these four appeals.

READ  How to ascertain rate of interest in case of refund of amount withdrawn at interim stage?

[3] For the purpose of condonation of delay, it was contended before the learned District Judge by the present appellant that he had no knowledge of passing the award by the Arbitrator in all the four cases and only after receiving summon in the four execution cases, he came to know about the awards and therefore the delay in filing the application u/s 34 for setting aside the award should be condoned. The respondent, on the other hand, objected to the said prayer for condonation on the ground that copy of the award in all the four cases had been sent to the appellant by the Arbitrator by registered post with A/D and the appellant has signed all the A/D acknowledging receipt of the awards and therefore the ground taken in the application for condonation of delay is not correct.

[4] The sole question for consideration is as to whether the appellant had been served with a copy of the awards after the same were passed by the Arbitrator or not. It appears from the record that original copy of the postal receipts and acknowledgement cards signed by the appellant acknowledging receipt of the awards had been produced before the learned District Judge. The observation of the learned District Judge in paragraph 11 of the impugned order, in this regard, is quoted below:

“11. During the course of hearing, the claimant/O.P.
has submitted original copies of postal receipts and
acknowledgement cards duly signed by the petitioner for
receiving the awards in connection with Judl. Misc. Cases
No. 115/2012/165/2013, 116/2012/166/2013 and
118/2012/168/2013. In Judl. Misc. Case No. 4
115/2012/165/2013, the award dated 20.11.2010 in
connection with RPR/2009-10/04/ST-5 dated 31.1.2009
was sent to the petitioner on 20.11.2010 by Registered
Post A/D bearing No. RLAD A 6571 and the same was
duly received on 4.12.2010. In Judl. Misc. Case
NO.116/2012/166/2013, the award dated 20.11.2010 in
connection with RPR/2009-10/01/ST-5 dated 31.1.2009
was sent to the petitioner on 20.11.2010 by registered
post A/D bearing No.RLAD A 6569 and the same duly
signed and received by the petitioner. In Judl. Misc.
Case No.118/2012/168/2013 the award dated
20/11/2010 in connection with RPR/2009-10/03/ST-5
dated 31/1/2009 was sent to the petitioner on
20.11.2010 by registered post A/D bearing No. RLAD A
6570 and the same was duly received on 7.12.2010. In
Judl. Misc. Case No.117/2012/167/2013, the award dated
9.12.2010 with reference to RPR/2009-10/24/ST-5 dated
5.2.2009 was sent to the petitioner on 12.12.2010 by
Speed Post with POD bearing No. EE-907305148IN. All
the awards were sent to the correct address of the
petitioner. A certified copy of the Dispatch Register
along with Receipt and POD(or A/D card ) for sending
speed post is also filed by the respondent/OP.”

READ  498A/376 - Acquittal - Contradiction in evidence

[5] In view of the above, the fact that all the four awards were sent to the appellant by registered post with A/D, the presumption is that it had been served unless such presumption is rebutted by the appellant. Before the learned District Judge, the appellant only denied to have received the copy of the award in all the four cases and submitted that the signatures appearing in the A/D cards are not his signatures. Except denying the above fact, the appellant did not take any further step either by filing an application to send the handwriting appearing in the acknowledgment card to an expert for opinion or by adducing evidence to prove his stand that he had not been served with the copy of the award. As a matter of fact, no rebuttal evidence was adduced by the appellant against the presumption available under the law except denial receipt of the award from the Arbitrator.

[6] In course of hearing of the appeals, the learned counsel for the appellant submitted that the matter may be remitted back to the learned District Judge to give an opportunity to the appellant to get the signatures verified by an expert. We are unable to accept such contention of the learned counsel considering the fact that no such effort was made by the appellant when the matter was pending before the learned District Judge and several years have passed in the meantime. Apart from the above, we also compared the signatures appearing in the A/D cards with the signatures 5 of the appellant in the Vakalatnama. To our bare eyes we did not find much of difference. We, therefore, find no justification either to set aside the impugned order refusing to condone the delay or remitting the matter back to the learned District Judge for giving another opportunity to the appellant to substantiate his stand.

READ  Private complaint Petition

[7] All the four appeals, accordingly, fail having no merit and are accordingly dismissed.

JUDGE CHIEF JUSTICE

Leave a Comment

Your email address will not be published. Required fields are marked *