In view of Section 34(3) of the 1996 Act, delay beyond three months and thirty days, in filing an application under Section 34 of the 1996 Act, for setting aside an award, cannot be condoned under Section 5 of the Limitation Act, 1963.
9. Section 29(2) of the Limitation Act, 1963 provides as follows :-
"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
10. The 1996 Act is a special law and Section 34 thereof provides for a period of limitation different from that prescribed under the Limitation Act, 1963 as observed by the Supreme Court in Union of India v. Popular Construction Company reported in MANU/SC/0613/2001 : (2001) 8 SCC 470.
11. In Popular Construction Company (supra), the Supreme Court reaffirmed that the mere stipulation of a period of limitation, howsoever peremptory the language, might not, in itself be sufficient to displace the applicability of Section 5 of the Limitation Act. The Supreme Court, however, held that the crucial words "but not thereafter" used in the proviso to sub-section (3) of Section 34 of the 1996 Act, would amount to express exclusion of Section 5 of the Limitation Act, under Section 29(2) of the said Act and would therefore bar the application of Section 5 of the Limitation Act, 1963. To quote the Supreme Court "to hold that the Court could entertain an application to set aside an award, beyond the extended period of limitation under the proviso, should render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such result."
12. The proposition that the proviso to Section 34(3) bars the application of Section 5 of the Limitation Act, 1963, beyond the extended period of limitation also finds support from the judgment of the Supreme Court in Assam Urban Water Supply and Sewerage Board v. Subhash Projects and Marketing Limited reported in MANU/SC/0054/2012 : (2012) 2 SCC 624.
IN THE HIGH COURT OF CALCUTTA
G.A. 2518/2015, A.P.O.T. 337/2015 and A.P. 174/2015
Decided On: 28.08.2015
National Agricultural Cooperative Marketing Federation of Indian Ltd.
Vs.
R. Piyarelall Import & Export Ltd.
Hon'ble Judges/Coram:Indira Banerjee and Sahidullah Munshi, JJ.
1. This appeal is against a judgement and order dated 29th June, 2015 passed by the learned Single Bench rejecting the application filed by the appellant, being AP No. 174 of 2015, under Section 34 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as 'the 1996 Act', for setting aside an award, made by an arbitral tribunal of three arbitrators of the Indian Council of Arbitration, on 21st February, 2014, in arbitration of disputes between the appellant and the respondent, as rectified by an order dated 4th March, 2014.
2. The said application under Section 34 of the 1996 Act has been rejected on the ground that it had filed beyond a period of three months and thirty days from the date of receipt of the award, as corrected.
3. Section 34(3) provides as follows:-
"An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal :Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
4. The award as corrected was received by the appellant on 18th March, 2014. On 18th July, 2014 the appellant filed an application in Delhi High Court under Section 34 of the 1996 Act, challenging the said award. The said application was, however, dismissed by an order dated 11th November, 2014 on the ground that Delhi High Court lacked territorial jurisdiction to entertain the said application. A certified copy of the said order dated 11th November, 2014 was received by the appellant on 25th November, 2014.
5. On 9th February, 2015, that is, about two and half months after the receipt of a certified copy of the order dated 11th November, 2014 of the Delhi High Court dismissing the said application, the appellant filed an application in this Court under Section 34 of the 1996 Act for setting aside the award, which has given rise to the judgment and order under appeal.
6. As noted by the learned Single Bench, the appellant had filed an application under Section 34 in the Delhi High Court, after a lapse of almost three months and thirty days from the date of receipt of the corrected award, or may be, a day short thereof. The Delhi High Court dismissed the application on 11th November, 2014.
7. Even if the time between the date of filing of the setting aside application in the Delhi High Court, and the date of receipt of a certified copy of the order of the Delhi High Court, dismissing the said application is excluded, even then the application in this Court should have been filed, not later than on 26th November, 2014.
8. In view of Section 34(3) of the 1996 Act, delay beyond three months and thirty days, in filing an application under Section 34 of the 1996 Act, for setting aside an award, cannot be condoned under Section 5 of the Limitation Act, 1963.
9. Section 29(2) of the Limitation Act, 1963 provides as follows :-
"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
10. The 1996 Act is a special law and Section 34 thereof provides for a period of limitation different from that prescribed under the Limitation Act, 1963 as observed by the Supreme Court in Union of India v. Popular Construction Company reported in MANU/SC/0613/2001 : (2001) 8 SCC 470.
11. In Popular Construction Company (supra), the Supreme Court reaffirmed that the mere stipulation of a period of limitation, howsoever peremptory the language, might not, in itself be sufficient to displace the applicability of Section 5 of the Limitation Act. The Supreme Court, however, held that the crucial words "but not thereafter" used in the proviso to sub-section (3) of Section 34 of the 1996 Act, would amount to express exclusion of Section 5 of the Limitation Act, under Section 29(2) of the said Act and would therefore bar the application of Section 5 of the Limitation Act, 1963. To quote the Supreme Court "to hold that the Court could entertain an application to set aside an award, beyond the extended period of limitation under the proviso, should render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such result."
12. The proposition that the proviso to Section 34(3) bars the application of Section 5 of the Limitation Act, 1963, beyond the extended period of limitation also finds support from the judgment of the Supreme Court in Assam Urban Water Supply and Sewerage Board v. Subhash Projects and Marketing Limited reported in MANU/SC/0054/2012 : (2012) 2 SCC 624.
13. Mr. Raja Basu Chowdhury, appearing on behalf of the appellant submitted that limitation under Section 34(3) of the 1996 Act, would only start running from the date of receipt of a signed copy of the award.
14. Mr. Basu Chowdhury argued that the copy of the award that had been received by the appellant from the Indian Council of Arbitration was not a signed copy of the award. Limitation had, therefore, not started running. The application ought not to have been rejected on the ground that the same was barred by limitation.
15. Referring to Section 31(1) of the 1996 Act, Mr. Basu Chowdhury argued, and rightly, that an arbitral award was required to be made in writing and signed by the members of the arbitral tribunal. However, in view of Section 31(2), in arbitral tribunal proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal would be sufficient, as long as the reason for any omitted signature was stated. Sub-section 5 of Section 31 requires that after an arbitral award is made, a signed copy thereof is to be delivered to each party, as pointed out by Mr. Basu Chowdhury.
16. As held by the Supreme Court in Union of India v. Tecco Trichy Engineers & Contractors reported in MANU/SC/0214/2005 : (2005) 4 SCC 239, "the delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be 'received' by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings."
17. In State of Maharashtra v. ARK Builders reported in MANU/SC/0158/2011 : (2011) 4 SCC 616, cited by Mr. Bosu Chowdhury, the issue was, whether the period of limitation for making an application under Section 34 of the 1996 Act, for setting aside an arbitral award, was to be reckoned from the date on which a copy of the award was received by the applicant by any means or source, or whether it was to start running from the date a signed copy of the award was delivered to the applicant by the arbitrator.
18. The Supreme Court held that the period of limitation prescribed under Section 34(3) of the 1996 Act, could only commence from the date on which the award was received by the applicant in the manner prescribed by law and/or in other words, in the manner for service of the award prescribed in Section 31(5) of the 1996 Act.
19. On a conjoint reading of Sub-section 5 of Section 31 of the 1996 Act with Section 34(3) of the said Act, there can be no doubt that limitation would start running from the date of receipt of a signed copy of the award, as argued by Mr. Basu Chowdhury.
20. In this case, the arbitration was conducted by the Indian Council of Arbitration, a Society sponsored by the Ministry of Commerce, Government of India, which is registered under the Societies Registration Act, 1860 and engaged in dispute resolution through arbitration. The award was duly signed by the three Learned arbitrators. The Learned arbitrators put their signatures on each page of the award. A certified copy of the award was forwarded to the respective parties under cover of a letter being Ref No. ICA/2339/AC/1748/A-Post dated 24th February, 2014 written by the Registrar of the Indian Council of Arbitration. The certified copy of the award, as sent, is a photo copy of the signed award. The signatures of the three arbitrators have been photocopied.
21. Similarly, under cover of a letter being Ref. No. ICA/2531/AC/1748/A-Post dated 3rd March, 2014 signed by the Registrar of the Indian Council of Arbitration, a copy of an order dated 4th March, 2014, being the corrigendum to substitute Paragraph No. 66(a) of the award was forwarded to the respective parties.
22. The short question in this appeal is whether the copy of the award forwarded to the appellant was a signed copy of the award as contemplated in Section 31(5) of the 1996 Act.
23. None of the judgments cited by Mr. Basu Chowdhury is an authority for the proposition that a signed copy under Section 31(5) would necessarily have to be a copy of the original award actually signed by the arbitrators themselves in original.
24. As argued by Mr. Ratnanko Banerjee, Learned Senior Advocate appearing on behalf of the respondent, in State of Maharashtra v. ARK Builders (supra), the arbitrators had not supplied a copy of the award to the appellants. The award holder had, however, forwarded a photocopy of the award to the appellant and claimed payment in terms of the award. It was in the background of the aforesaid facts that the Supreme Court held that limitation would run from the time the award duly signed, was received by the appellant, from the arbitrator. The Supreme Court did not consider the question of whether the copies served by the arbitrators to the parties concerned would all have to actually and separately be signed by the arbitrators themselves.
25. There can be no doubt that the arbitral award would necessarily have to be signed by all the arbitrators or atleast by the majority of the members of the arbitral tribunal. However, in our view, it was not the intention of legislature that all the copies of the award, dispatched to the respective parties would have to be separately signed by the Learned arbitrators. A certified photocopy of the original award along with the signatures of the members of the Arbitral Tribunal would suffice.
26. Had it been the legislative intent that all copies of the award required to be furnished to the respective parties to a multi party arbitration, should actually be signed by members of the arbitral tribunal themselves and/or in other words, each of the copies should contain the original signatures of the arbitrators, Parliament would, perhaps, not have used the expression 'signed copy of the award' but used the expression 'a copy of the award, duly signed by the arbitrators', in Section 31(5) of the 1996 Act.
27. In Hindustan Construction Company Ltd. v. Union of India reported in MANU/SC/0006/1966 : AIR 1967 SC 526, cited by Mr. Basu Chowdhury, the Supreme Court considered what was a signed copy of the award, in the context of Section 14(2) of the Arbitration Act, 1940, which required the arbitrators to cause the award or a signed copy of it, together with depositions and documents which might have been taken or proved before them, to be filed in Court, so that judgment could be pronounced thereon.
28. In Hindustan Construction Company Ltd. v. Union of India (supra), it was not in dispute before the Supreme Court that the original award had not been filed in Court. The dispute was, whether the document filed was a signed copy of the award, as the respondent contended that what had been filed, was a certified copy of the award and not a signed copy thereof, and therefore could not be acted upon. In the context of the disputes before the Supreme Court, the Supreme Court held :
"........Obviously, therefore a copy means a document prepared from the original which is an accurate or true copy of the original. In Webster's New Dictionary, the word "copy" means "a thing made just like another; full reproduction or transcription". What the word "copy" in Section 14(2) therefore requires is that it must be a full reproduction of the original and that it should be accurate or true. When a document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was therefore a copy of the original, and the only question that remains is whether it was signed, for if it was signed, it would be a signed copy.7. This brings us to the meaning of the word "sign" as used in the expression "signed copy". In Webster's New World Dictionary, the word 'sign" means "to write one's name on, as in acknowledging authorship, authorising action etc." To write one's name is signature. Section 3(56) of the General Clauses Act, 10 of 1897, has not defined the word "sign" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing one's name on some document or paper. In Mohesh Lal v. Busunt Kumaree, a question arose as to what "signature" meant in connection with Section 20 of the Limitation Act, 9 of 1871. It was observed that 'where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.8. We accept these observations and are of the opinion that so long as there is the signature of the arbitrator or umpire on the copy of the award filed in court and it shows that the person signing authenticated the accuracy or correctness of the copy of the document would be a singed copy of the award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the words "certified to be true copy" before signing the copy of the award. If anything, the addition of these words (namely, certified to be true copy) would be the clearest indication of the authentication of the copy as a true copy of the award, which is what Section 14(2) requires, so long as the authentication is under the signature of the arbitrator or the umpire himself."
29. A judgment is an authority for the proposition of law that is raised and decided. The judgment in Hindustan Construction Company Ltd. (supra), rendered in the context of Section 14(2) of Arbitration Act, 1940, is not an authority for the proposition that a certified photo copy of the original award signed by the arbitrators, would not be a 'signed copy' as contemplated in Section 31(5) of the 1996 Act.
30. In any case, this Court cannot be oblivious of the technical developments that have taken place over the last three or four decades. When Section 14(2) of the Arbitration Act, 1940 was enacted, or even when the judgment in Hindustan Construction Company Ltd. v. Union of India (supra) was pronounced, photocopies, faxed copies, computer print outs with digital signatures, computerized scanned copies, e-mails etc. were not in contemplation. Copies of documents were generally handwritten copies, cyclostyled copies, typed copies or may be carbon copies, which needed to be authenticated by affixation of signature.
31. In recent years, there has been a rise in the popularity of institutionalized arbitration. Just as the arbitration in this case has been conducted under the aegis of the ICA (Indian Council of Arbitration), there are many other established, recognized institutions which also conduct arbitrations. In case of institutional arbitrations, as in this case, we see no reason why photocopies of the award with photocopied signatures, or digitally signed awards, duly certified by an authorized office bearer of the institution, conducting the arbitration, should not satisfy the requirement of Section 31(5) of the 1996 Act.
32. Moreover there is a vast difference between Section 31(5) of the 1996 Act and Section 14(2) of the Arbitration Act, 1940, under which the original award signed by the arbitrators or a copy of the award along with signatures of the arbitrators would have to be filed in Court as observed above so that judgment could be pronounced thereon. There was no requirement in law for the arbitrators to serve copies of the award on the respective parties. On the other hand, under Section 31(5) of the 1996 Act, copies of the award might have to be served to numerous parties in a multi party arbitration, and it may not be feasible for the arbitrators to physically sign all the copies of the awards.
33. We hold that the copy of the award and the copy of the corrigendum sent by the Registrar of the Indian Council of Arbitration to the appellant, were signed copies of the award in that they were photo copies of the original award along with the photocopied signatures of the arbitrator, and duly certified by the Indian Council of Arbitrators.
34. In our view, limitation started to run on 18th March, 2014, when the corrected award was received by the appellant and the application for setting aside of the award became barred by limitation on 16th June, 2014. The delay was condonable only by thirty days.
35. The petition in Delhi High Court was filed on 18th July, 2013, that is 3 months and thirty days, or may be one day less as observed above. Delay beyond 30 days, not being condonable, the application under Section 34 of the 1996 Act, necessarily had to be filed in this Court within 26th November, 2014, that is the day after receipt of a certified copy of the order of Delhi High Court dismissing the Section 34 application.
36. The learned Single Bench rightly held that the application under Section 34 of the 1996 Act was barred by limitation.
37. The appeal is dismissed.
38. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
Sahidullah Munshi, J.
I Agree
LATER:
Mr. Tapas Kr. Majumdar, learned Advocate appearing on behalf of the respondent, prays for stay of operation of this judgment and order.
The prayer is considered and declined.
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