Vinod Karnal Vs. State of Himachal Pradesh and anr. - Court Judgment

Excerpt:
1. the petitioner has filed the objections against award dated 26 th may, 2008, passed by mr. pradeep chauhan, arbitrator, superintending engineer, circle-iv, h.p.p.w.d., shimla. in the objections, it has been stated that petitioner was served with the photocopy of the award on 02.06.2008 and limitation had not commenced in the absence of signed copy of award, as required under section 31 of the arbitration and conciliation act, 1996 ( for short ‘act’ ). it has, however, been submitted that in absence of singed copy of award, the present petition has been filed by way of abundant caution in order to save limitation. the question involved is whether in absence of signed copy of award the petitioner can file objections under section 34 (3) of the act. 2. in execution petition no. 24 of 2003 an objection was taken by the judgement debtor that signed copy of award was not supplied to the judgement debtor and after the receipt of signed copy of award, the judgement debtor would be in a position to challenge the award within the limitation allowed by the act. this objection of the judgement debtor was considered by a co-ordinate bench of this court on 29.07.2004 and passed the following orders:- “ex. p.no. 24/03 & omp no. 191 of 2004. heard. the present execution petition has been made to enforce the award dated 23.10.2002. the judgement debtors have preferred objections to the enforcement of the award on the ground that since no signed copy of the award was served by the arbitrator upon the parties as required under sub-section(5) of section 31 of the arbitration and conciliation act, 1996, the time for filing the objections to the award under section 34 has not started to run and till the period prescribed for filing the objections under section 34 has expired the award is not capable of being enforcement under section 36 of the act. the objection raised on behalf of the judgement debtor has merit. the signed copy of the award has not been supplied to the parties and only a photostat copy thereof has been supplied. therefore, in the absence of a signed copy of the award, the time prescribed for making the objections under section 34 of the act has not started to run and as such the award cannot be enforced under section 36 of the act. the objection petition being omp no. 191 of 2004 is allowed while the execution petition no. 34 of 2003 is dismissed as being pre-mature. the arbitrator shall supply a signed copy of the award in terms of sub-section (5) of section 31 of the act within two weeks from the date a certified copy of this order is produced before him by either of the parties. dasti copy on usual terms.” 3. on 13.09.2004, this court has passed the following orders in execution petition no. 24 of 2003: “it is stated by sh. j.s.bhogal, sr. advocate assisted by sh. suneet goel, advocate for the judgement debtors that the signed copy of the award has since been received by the judgement debtor m/s rishi electrical private limited on 11.9.2004. in view of the same, no further order is called for.” 4. mr. j.s.bhogal, senior advocate, incidentally was the counsel, who represented the judgement debtor in execution petition no. 24 of 2003 also. he has stated that on 13.09.2004, the execution petition was closed. 5. in arbitration case no. 15 of 2009, a co-ordinate bench on 09.03.2009 has passed the following orders: ”mr. suneet goel, learned counsel for the petitioner submits that he has only received the signed copy of the letter dated 24 th october,2008 written by the arbitrator. but, however, the award does not bear his original signatures. since the impugned award needs to be necessarily signed by the arbitrator, mr. suneet goel, learned counsel for the petitioner submits that he does not press the petition, however, he shall take steps for getting the signed copy of the award and then institute appropriate proceedings. prayer allowed. petition is disposed of. objections are pre-mature, hence dismissed.” 6. it emerges from the aforesaid two orders dated 29.07.2004 and 09.03.2009 that the petition under section 34 of the act can be filed only on the basis of signed copy of the award. in the present case, the petition under section 34 of the act has been filed on the basis of photocopy of the award and not on the basis of signed copy of the award. in these circumstances, the petition under section 34 of the act is pre-mature. 7. the learned counsel for the petitioner has submitted that till today signed copy of the award dated 26.05.2008 has not been supplied by the learned arbitrator to the petitioner. he has prayed a direction to learned arbitrator to supply signed copy of award dated 26.05.2008. in these circumstances, the learned arbitrator is directed to supply signed copy of the award to the petitioner within a period of four weeks. 8. the petition is disposed of. the liberty is granted to the petitioner to challenge the award in accordance with law.

Judgment:

1. The petitioner has filed the objections against award dated 26 th May, 2008, passed by Mr. Pradeep Chauhan, Arbitrator, Superintending Engineer, Circle-IV, H.P.P.W.D., Shimla. In the objections, it has been stated that petitioner was served with the photocopy of the award on 02.06.2008 and limitation had not commenced in the absence of signed copy of award, as required under Section 31 of the Arbitration and Conciliation Act, 1996 ( for short ‘Act’ ). It has, however, been submitted that in absence of singed copy of award, the present petition has been filed by way of abundant caution in order to save limitation. The question involved is whether in absence of signed copy of award the petitioner can file objections under Section 34 (3) of the Act.

2. In Execution Petition No. 24 of 2003 an objection was taken by the judgement debtor that signed copy of award was not supplied to the judgement debtor and after the receipt of signed copy of award, the judgement debtor would be in a position to challenge the award within the limitation allowed by the Act. This objection of the judgement debtor was considered by a co-ordinate Bench of this Court on 29.07.2004 and passed the following orders:-

“Ex. P.No. 24/03 & OMP No. 191 of 2004. Heard. The present execution petition has been made to enforce the award dated 23.10.2002. The judgement debtors have preferred objections to the enforcement of the award on the ground that since no signed copy of the award was served by the Arbitrator upon the parties as required under sub-section(5) of Section 31 of the Arbitration and Conciliation Act, 1996, the time for filing the objections to the award under Section 34 has not started to run and till the period prescribed for filing the objections under Section 34 has expired the award is not capable of being enforcement under Section 36 of the Act. The objection raised on behalf of the judgement debtor has merit. The signed copy of the award has not been supplied to the parties and only a Photostat copy thereof has been supplied. Therefore, in the absence of a signed copy of the award, the time prescribed for making the objections under Section 34 of the Act has not started to run and as such the award cannot be enforced under Section 36 of the Act. The objection petition being OMP No. 191 of 2004 is allowed while the execution petition No. 34 of 2003 is dismissed as being pre-mature. The Arbitrator shall supply a signed copy of the award in terms of sub-section (5) of Section 31 of the Act within two weeks from the date a certified copy of this order is produced before him by either of the parties. Dasti copy on usual terms.”

3. On 13.09.2004, this Court has passed the following orders in Execution Petition No. 24 of 2003:

“It is stated by Sh. J.S.Bhogal, Sr. Advocate assisted by Sh. Suneet Goel, Advocate for the judgement debtors that the signed copy of the award has since been received by the judgement debtor M/s Rishi Electrical Private Limited on 11.9.2004. In view of the same, no further order is called for.”

4. Mr. J.S.Bhogal, Senior Advocate, incidentally was the counsel, who represented the judgement debtor in Execution Petition No. 24 of 2003 also. He has stated that on 13.09.2004, the execution petition was closed.

5. In Arbitration Case no. 15 of 2009, a co-ordinate Bench on 09.03.2009 has passed the following orders:

”Mr. Suneet Goel, learned counsel for the petitioner submits that he has only received the signed copy of the letter dated 24 th October,2008 written by the Arbitrator. But, however, the award does not bear his original signatures. Since the impugned award needs to be necessarily signed by the Arbitrator, Mr. Suneet Goel, learned counsel for the petitioner submits that he does not press the petition, however, he shall take steps for getting the signed copy of the award and then institute appropriate proceedings. Prayer allowed. Petition is disposed of. Objections are pre-mature, hence dismissed.”

6. It emerges from the aforesaid two orders dated 29.07.2004 and 09.03.2009 that the petition under Section 34 of the Act can be filed only on the basis of signed copy of the award. In the present case, the petition under Section 34 of the Act has been filed on the basis of photocopy of the award and not on the basis of signed copy of the award. In these circumstances, the petition under Section 34 of the Act is pre-mature.

7. The learned counsel for the petitioner has submitted that till today signed copy of the award dated 26.05.2008 has not been supplied by the learned Arbitrator to the petitioner. He has prayed a direction to learned Arbitrator to supply signed copy of award dated 26.05.2008. In these circumstances, the learned Arbitrator is directed to supply signed copy of the award to the petitioner within a period of four weeks.

8. The petition is disposed of. The liberty is granted to the petitioner to challenge the award in accordance with law.