FAO No. 4522 of 2018 (O&M) [1]

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

FAO No. 4522 of 2018 (O&M)

Date of decision: 23^rd January, 2023

Parveen Diwan

Petitioner

Versus

Punjab Agro Industries Corporation & another

Respondents

CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present:

Mr. K. S. Gill, Advocate for the appellant.

Mr. Anupam Singla, Advocate for respondent No. 1.

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AVNEESH JHINGAN, J (Oral):

1.

Aggrieved of dismissal of application under Section 34 of the

Arbitration and Conciliation Act, 1996 (for short, 'the Act') as time barred,

the appellant is before this court.

2.

The brief facts are that the appellant and respondent No. 1

entered into a Financial Collaboration agreement dated 29.3.2011. Clause

32 of the agreement provided mechanism for dispute resolution through

arbitration.

3.

There were disputes between the parties and arbitrator was

appointed. After service through publication, an ex-parte award dated

8.4.2011 was passed. On receiving notice of execution in September, 2015,

the appellant applied for copy of the award which was delivered on

9.11.2015. On 18.11.2015 the objections under Section 34 of the Act was

filed accompanied by application for condoning delay of four years and 132

days.

4.

Learned counsel for the appellant submits that as per 31(5) of

the Act each party shall be delivered the signed copy of the award. The

contention is that there is non compliance of Section 31(5) of the Act and

PARVEEN SHARMA

2023.02.06 16:38

I attest to the accuracy and

integrity of this document.

FAO No. 4522 of 2018 (O&M) [2]

period of limitation to file application is to be counted from 9.11.2015.

5.

Learned counsel for the respondent No. 1 submits that after

perusing the record, it was recorded in the impugned order that the

arbitrator had sent copy of award through registered post to the appellant

on 9.4.2011.

6.

It is trite law that applicability of Section 5 of the Limitation

Act is excluded by Section 34(3) of the Act and that delay beyond 30 days

after expiry of limitation period cannot be condoned. Reference in this

regard is made to Union of India v. Ms Popular Constructing Co. AIR

2001 SC 4010 and M/s Consolidated Engg. Enterprises v. Principal Secy.

Irrigation Deptt. and others, (2008) 7 SCC 169.

7.

The appellant has not disputed (i) that the arbitral award was

sent to the appellant on 9.4.2011 through registered post, (ii) the postal

receipts are available on the record, (iii)) that the copy of award was sent on

the address given in the agreement. (iv) there was no other address on

record and (v) as per clauses of agreement in case of change of address,

the appellant had to inform the respondent.

8.

Section 31(5) of the Act provides that copy of the arbitral

award shall be delivered to each of the party. Section 34(3) of the Act

prescribes limitation of three months from the receipt of arbitral award for

filing objections under Section 34 of the Act. Delay upto thirty days beyond

the limitation prescribed can be condoned as per proviso to Section 34(3) of

the Act. It is not disputed that the award was sent to the appellant through

registered post on the proper address i.e. the address given by the appellant

in the agreement. It is not the case set up that any change of address in

consonance with the clauses of the agreement was intimated to the

arbitrator or to the respondent.

9.

Before proceeding to decide the date of initiation of limitation,

it would be relevant to analyse Section 27 of the General Clauses Act, 1897

(for short, 'GC Act'). Section 27 is reproduced below:

“27. Meaning of service by post.-Where any Central Act or

Regulation made after the commencement of this Act

authorizes or requires any document to be served by post,

whether the expression “serve”or either of the expressions

PARVEEN SHARMA

2023.02.06 16:38

I attest to the accuracy and

integrity