Important Point—Service of copy of signed award upon Advocate or agent does not amount to compliance with provisions of Section 31(5) of Arbitration and Conciliation Act, 1996.

By this notice of motion the applicant seeks condonation of delay of 31 days in filing petition under section 34 of the Arbitration and Conciliation Act, 1996. Some of the relevant facts for the purpose of deciding this notice of motion are as under :-

2. On 10th October, 2015, the arbitral tribunal rendered the arbitral award. The learned presiding officer by his letter dated 16th October, 2015 to the learned advocates representing the parties informed that the arbitral award was ready and was duly signed by all the three arbitrators. The learned presiding arbitrator requested the learned advocates representing the parties to depute their representative to collect the award from his office after prior intimation. Pursuant to the said letter received from the learned presiding arbitrator, the applicant's advocate deputed his representative to collect a signed award from the learned arbitrator on 16th October, 2015 who collected the said signed award from the office of the learned presiding officer at 5.30 p.m. The learned presiding arbitrator by his e-mail dated 16th October, 2015 recorded the handing over of the original award to the representative of the learned advocate representing the petitioner.

3. The applicant lodged an arbitration petition on 16th February, 2016 impugning the said arbitral award under section 34 of the Arbitration and Conciliation Act, 1996. Since according to the applicant at that stage, there was a delay of 31 days in filing the arbitration petition, the applicant filed notice of motion (696 of 2016) in the said Arbitration Petition (L) No.267 of 2016 inter alia praying for condonation of delay of 31 days in filing the arbitration petition.

4. Mr. Shah, learned senior counsel appearing for the applicant fairly invited my attention to the averments made in the affidavit in support and more particularly paragraph (2). He submits that the arbitral tribunal had not served a copy of the signed award upon the applicant. The applicant filed an additional affidavit on 27th April, 2016. My attention is invited to the averments made in the said affidavit. It is submitted by the learned senior counsel that under section 31(5) of the Arbitration and Conciliation Act, a signed copy of the award has to be delivered by the arbitral tribunal to each party. In the present case a copy of said signed award was not delivered to the applicant as is clear from the e-mail dated 16th October, 2015 addressed by the learned presiding arbitrator. He submits that the said award was collected by the representative of the applicant's advocate from the office of the learned presiding arbitrator. He submits that due to certain disputes between the applicant and its advocate in respect of the pending fees, the learned advocate representing the applicant handed over the original award to the applicant only in the third week of December 2015. It is lastly submitted that in any event the copy of the signed award as contemplated under section 31(5) of the Arbitration and Conciliation act 1996 was admittedly not served upon the petitioner who was a party to the arbitration agreement, there was no delay in filing the arbitration petition.

5. In support of his submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of State of Maharashtra & Ors. vs. M/s. Ark Builders Pvt. Ltd. AIR 2011 SC 1374, judgment of Supreme Court in case of Benarsi Krishna Committee and others vs. Karmyogi Shelters Private Limited (2012) 9 SCC 496 and judgment of this court in case of Mukesh Nanji Gala & Ors. vs. Heritage Enterprises & Anr. 2015 (2) Bom.C.R. 123. He submits that the limitation for filing an arbitration petition under section 34(3) would not commence unless a signed copy of the award is received upon the party as defined under section 2(1) (h) of the Arbitration and Conciliation Act, 1996. It is submitted that no advantage of such erroneous concession of law thus made in the affidavit in support of the notic