K.R. Shriram, J.

Commercial NOTICE OF MOTION NO.647 OF 2017

This is a notice of motion for condoning the delay in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act). According to applicant, the delay is about 26 days, whereas it is respondent's case that the delay is in excess of 2 1/2 years. After the notice of motion was heard and reserved for orders, parties also filed brief submissions.

2. Shri Jain, counsel for applicant submitted as under :

(a) Applicant became aware about the Arbitral Proceedings in the month of May, 2017 when it learnt from one of the ex-employee of applicant about the present award. The Director of applicant immediately instructed the counsel to find out about the status of the Arbitral Proceeding. The counsel, who is based out of Delhi, on checking from the website of Bombay High Court could make out about the Arbitral Proceeding and wrote an e-mail to the learned Sole Arbitrator vide e-mail dated 19.05.2017 and sought inspection of record of Arbitral proceeding. The learned Arbitrator vide mail dated 19.05.2017 informed the counsel that he was on leave till 18.06.2017 and thereafter, the counsel visited the office of the learned Sole Arbitrator on 22.06.2017 and inspected the records of Arbitral Proceeding and received a signed copy of the Arbitration Award and subsequently sent the same to his client (i.e., G. Janardhana Reddy), which was received by him on next day. The office of applicant was non-functional/non-operational since 2009-10 due to suspension of mining operation by the Ministry of Environment of Forest, thereafter by the Government of Andhra Pradesh and under various orders of Hon'ble Supreme Court of India.

(b) Applicant is a private limited company and its both Directors - Shri Gali Janardhan Reddy and Shri B.V. Srinivasa Reddy were arrested on 05.11.2011. Shri Gali Janardhan Reddy was released on bail on 20.01.2015 and Shri B.S. Srinivasa Reddy was granted bail on 22.01.2015 with the condition that they shall not visit Bellary where their office is situated. The reason for not being able to file the application within the statutory period after receipt of order by the counsel of applicant was that the office was non operational and the records were old and unavailable. Further, most of the employee of the company had already left the company and those who are there are insignificant for the purpose of this arbitration. This is also evident from the fact that the company did not file any returns during the said period. The Counsel for applicant received the impugned order on 22.06.2017 and appeal was filed on 23.10.2017. The appeal was filed after 3 months but within and condonable period of 30 days. Applicant submits that applicant have just and reasonable ground for condonation of delay of 30 days in filing the appeal.

3. In the affidavit in support, I have to note, there is nothing mentioned about the two Directors of applicant being in jail or their entire office was shut down. There is nothing in the affidavit in support to state that the counsel checked the website of Bombay High Court and then wrote a letter to the Sole Arbitrator. These are all statements made across the bar. If these were to be accepted, I would have expected applicant to mention all of this in the affidavit in support.

4. Shri Jain also stated that in the statement of claim filed, respondent have admitted that the Directors were in jail. This is incorrect because in the statement of claim there is only mention of one of the Director being in jail. Still that will not excuse applicant from stating everything on oath.

5. Shri Jain submitted, relying on the judgment of the Apex Court in Union of India V/s. Tecco Trichy Engineers & Contractors, (2005) AIR SC 1832 that the delivery of an arbitral award under sub-Section (5) of Section 31 is not a matter of mere formality and it is a matter of substance. Shri Jain also submitted that the delivery of arbitral award to t