Judgment:
ORDER
Vikramajit Sen, J.
1. Arguments were addressed at length on this application under Section 5 of the Limitation Act filed by the respondent Union of India, for condensation of the delay in filing objections against the Award dated 28th December, 1995. There is some controversy revolving around a so-called Second Award dated 12th February, 1996. The contention of the Petitioner in this regard is that the Arbitrator had only corrected an arithmetical mistake and that the Respondent has raised this illusion of a Second Award merely to side-track the non-filing of objections within the period contemplated by law. In the view that I have taken, this issue does not fall for determination at this juncture.
2. Suit No.146A/1996 was initiated by the Petitioner by way of a Petition under Sections 14 and 17 of the Arbitration Act. It was prayed therein that Defendant No.2, Shri S.S. Juneja, the Arbitrator, be directed to file the original Award and proceedings in this Court. Notice was ordered on 16th January, 1996. On 1st February, 1996 the Award and connected proceedings were filed in Court and notice thereof was ordered to issue to Respondent No.1. It has been alleged by the Respondents that the Executive Engineer, NSGP, Division No. VI CPWD, Manesar, Gurgaon, was the person dealing with this contract and with the arbitration proceedings. But no notice was served on him. This officer is stated to have come to know of the filing of the Award only on 10th April, 1996, and immediately thereafter, on 16th April, 1996, he filed the Objections along with the present Application. Unfortunately the Respondent has deliberately failed to mention the date on which the Union of India was served in these proceedings. The Petitioner has, quite expectedly belaboured this failure, tarnishing it with deliberation and mala fides. It would have undoubtedly constituted sufficient reason for rejecting the application, had I favoured the view that the array of parties, vis-a-vis the Respondents, was correctly cast.
3. The objections have been palpably filed beyond limitation. The Union of India, respondent No.1 has, however, been arrayed in the following manner:
Union of India through the Superintending Engineer, NSGP, CPWD, Manesar, Gurgaon, Haryana.
4. It is also not disputed that the Superintending Engineer was not directly involved with the disputes inter se the parties before the Court.
5. My attention was drawn to Section 79 of the Code of Civil procedure. This Section stipulates that in a suit by or against the Central Government the authority to be imp leaded would be the Union of India. In the present case the Union of India was sought to be served through the Superintending Engineer, who is admittedly neither the head of the concerned department nor is the officer who were personally involved in or had direct knowledge of or had dealt with the disputes raised by the Petitioner. A similar had arisen before a Division Bench of this Court in Union of India Vs . Surinder Kumar, : 61(1996)DLT42 . The main grievance in that case, as well as in the case on hand, was that sufficient opportunity to contest the Award, by the issuance of a proper notice of the filing of the Award, had not occurred. In the present case, as well as in the case before the learned Division Bench it had been contended, inter alia, on the authority of M/s. C. Lyall and Company v. Union of India, 2nd (1973) 1 Del 905 that the Union of India need only be served through its Secretary. As mentioned above in the present case the Secretary has not been served but instead only the Superintending Engineer has been imp leaded and thereforee served. Be that as it may, had only the Secretary, Union of India, been served in place of Superintending Engineer, this would also have been insufficient service, in the view taken by the Division Bench, which considered all the precedents on this issue. The decision applies on all fours. I am extracting the relevant parts of the judgment below :
'14. Mr. Daphtry who appears for the petitioner, however, contends and rightly in my view that in any event though the Union of India would be deemed to have received a formal notice in writing of the filing of the award there is ample material to indicate that the Union of India became aware of the filing of the award and the proceedings by the Arbitrator on or about 13th May, 1971, and in any event on the 19th May, 1971, when counsel for the Union of India appeared in the Court and specifically sought time on behalf of the Union of India to file objections to the award and time was allowed to the Union of India subject to just exceptions.
20. In this view of the matter, the Union of India was entitled to file objections within 30 days of May 19, 1971, taking that date as the date on which the Union of India became aware of the nature of the proceedings and had before it the records relating to the matter. The objections could accordingly be filed by the 18th of June, 1971, and as High Court was in vacation during the period, the objections could legitimately be filed on the date of re-opening i.e. The objections were, however, filed on 16th of August, 1971, after a delay of about 28 days.'
6. I had occasion to consider similar arguments in R.P. Arora v. Union of India 1999 6 AD (Del) 679 and had come to a conclusion akin to that arrived at in this case. In that case I had also been guided by the view of R.C. Lahoti, J., (Whilst sitting as a Judge of this Court), expressed in D.P. Sharma Vs . Union of India, : 1995IIAD(Delhi)439 . The observations made by the learned Judge are succinct and lucid, and are reproduced for easy reference:
'It is well known that the Government in the very nature of its functioning, acts through some one, commonly known as officer-in-charge in a particular litigation. In the case at hand, it was the Executive Engineer (Civil) who was the in-charge of the case and was throughout conducting the proceedings before the Arbitrator which had pended for about three years. The covering letter filed by the Arbitrator along with the award and record of arbitration proceedings contained details of the contract out of which the disputes and arbitration proceedings had arisen as also a brief indication of arbitration case. The Executive Engineer (Civil) Telecom civil Division-I, Chanakayapuri, Post Office Building, New Delhi was shown in the covering letter as a party likely to be effected by the proceedings or a party interested in the award. Notice of the filing of the award should have been given to the Executive Engineer above said. The notice could have been accompanied by a copy of the covering letter filed by the Arbitrator or else the notice should have given the requisite particulars already stated hereinabove. That having not been done the notice issued on the address of the Secretary, Ministry of Communication did not satisfy the requirement of the notice of the filing of the award. The receiving clerk in the Secretariat was justified in refusing to accept the notice unless it gave particulars of the case or was accompanied by some petition or application to give an idea of the case. In fact the notice tendered to the clerk was not at all a notice of filing of the award.'
7. Applying the ratio of these judgments to the facts and circumstances of the present case, it becomes at once significant that neither the Secretary of the concerned Ministry nor the officer actually dealing with the present matter has been served. This being so, there is an inherent and initial lack of proper service on the Respondent; the period of limitation would necessarily commence only from the date that these officers, most importantly the officer concerned, namely the Executive Engineer, NSGP, Division VI, Manesar, Gurgaon, gained knowledge of the filing of the Award. The assertion before me is that the Executive Engineer, who was dealing with these disputes, came to know of the filing of the Award only on 10th April, 1996. The objections have been filed within 30 days of this date. They are, thereforee, clearly within time.
8. My attention was also drawn to the following Delhi High Court Rules, in Chapter 4, part B, pertaining to the Indian Arbitration Act, 1940 which were not adverted to in Surinder Cumbers Case (supra):
'6. Notice of application persons affected by award - Upon any application by petition under the Act, the Judge shall direct notice thereof to be given to all persons mentioned in the petition, and to such other persons as may seem to him to be likely to be affected by the proceedings, requiring all or any of such persons to show cause, with in the time specified in the notice, why the relief sought in the petition should not be granted.
11. Notice of filing award - when the award has been filed in court, the court shall forthwith issue notice of such filing to the parties interested in the award.'
9. The learned Division Bench as well as R.C. Lahoti, J., have held (apparently independent of the consideration of these Rules) that in petitions concerning the filing of an Award and its subsequent consideration for being made Rule of the Court, it is imperative that wherever the Union of India is arrayed as a party, the Secretary of the concerned Ministry as well as the officer directly concerned with the dispute, should be imp leaded and served. The Rules fortify and support the judgments. As has already been mentioned, services has not been effected on either of these persons and they have not even been arrayed as parties. The Rules would be given their full meaning if it is held that in the present case it was the Executive Engineer who was the person likely to be affected by the proceedings or alternatively stated, the person who would be 'interested in the Award. In this analysis, the law being well settled, it appears that it is proper and necessary to array both the Secretary of the concerned Ministry as well as the officer directly concerned with the disputes as Respondents. Failure to do so would tantamount to a formal irregularity which would necessarily have to be corrected; it would render the service on any other officer of the Government ineffective and inconsequential.
10. In these circumstances there is no necessity to reconcile the judgment of the learned Division Bench rendered in Delhi Development Authority v. Ramesh Kumar 1996 1 AD (Del) 431 with that of the Hon'ble Supreme Court in the case of State of Haryana Vs . Chandra Mani and Others : 2002(143)ELT249(SC) . That would have been necessary only if it had to be established by the applicant that it had disclosed sufficient reasons for condoning the delay in filing of the objections.
11. For these reasons the application is disposed off with the observation that the objections filed by the Executive Engineer, NSGP, Division VI, Manaser, Gurgaon, dated 16th April, 1996 filed on that very day, are not barred by limitation.