Full Judgement
Delhi High Court
Darshan Jaiswal vs Northern Railways on 10 July, 2024
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 270/2023
DARSHAN JAISWAL .....Petitioner
Through: Ms. Abha Maryada Bhatt,
Advocate
versus
NORTHERN RAILWAYS .....Respondent
Through: Mr.Sandeep Kumar Mahapatra,
CGSC with Mr. Tribhuvan, Ms. Anjali
Garg, Ms. Bindu, Mr. Hameet Kaur, Mr.
Mukesh Chawla, Mr. Dheraj K. Basra and
Mr. Ravi Mittal, Advocates.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R (ORAL)
% 10.07.2024
I.A. 19430/2023 (delay of 1757 days in filing)
1. OMP (Comm) 270/2023, under Section 34 of the Arbitration and Conciliation Act, 19961, has been preferred by the petitioner 1757 days after the award under challenge was passed by the learned Arbitrator. I.A. 19430/2023, preferred under the proviso to Section 34(3)2, seeks condonation of the said delay. This order disposes of the application.
1 "the 1996 Act"
2 (3) 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.
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HARI SHANKAR
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2. On 1 April 2024, this Court passed the following order on the present application:
"I.A. 19430/2023
By way of the present application, the petitioner seeks condonation of 1757 days' delay in filing the petition under section 34 of the Arbitration & Conciliation Act 1996.
2. Notice on this application was issued on 05.10.2023, granting 04 weeks time to the respondent to file their reply.
3. Subsequently, vide order dated 25.01.2024, the respondent was granted another 04 weeks to do so; however no reply is forthcoming on record even as of now.
4. The respondent's right to file reply to this application is accordingly closed.
5. The question before this court is whether the petition was filed within time.
6. The antecedent fact that requires consideration is as to when the petitioner received a signed copy of the impugned arbitral award from the learned Sole Arbitrator; or whether he at all received such a copy from the learned Sole Arbitrator.
7. The court has heard Ms. Abha Maryada Banerjee, learned counsel appearing for the petitioner, as also Mr. Sandeep Kumar Mahapatra, learned CGSC appearing for the respondent on this application.
8. The petitioner/Mr. Darshan Jaiswal is also present in court. The court has queried him as well on the subject matter of this application.
9. The petitioner says that he was a loader in the Northern Railways who was aggrieved of his termination, which he claims was unlawful. He says that presently he drives an auto- rickshaw.
10. The gist of the petitioner's response is that he was made aware of the existence of Arbitral Award dated 03.12.2018 by the office of Northern Railways, Delhi Division on or about 09.02.2022, when he was told that the Award had been rendered in his favour and that he needed to address a letter to the Northern Railways, Delhi Division so that his file could be moved to implement the award. Mr. Jaiswal submits that he was offered compensation as well as refund of his security deposit and was assured that he would be re-instated as a loader on a certain train. He says that in this backdrop, he addressed a Letter dated 09.02.2022 to the respondent, a copy of which has been filed alongwith the petition.
11. The petitioner says in para 1(d) of the application that he
Signature Not Verified OMP (COMM) 270/2023 Page 2 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 was given a photocopy of the award by the office of the Northern Railways on 28.06.2023. Mr. Jaiswal however says that he has never received a signed copy of the award, whether from the learned Arbitrator or otherwise.
12. In view of what has been stated by Mr. Jaiswal, after making some submissions, Mr. Mahapatra seeks time to take better instructions in the matter.
13. For the above purpose, re-notify on 07th May 2024."
3. Mr. Mahapatra, learned CGSC, submits that though he had written in writing to the respondent, seeking instructions in this matter, no instructions have been received. He, however, seeks to contest the application on the basis of the record and what he perceives to be the legal position in this regard.
4. For want of any response from the respondent to the present application and to the submissions advanced by learned counsel for the petitioner as recorded in the order dated 1 April 2024, the assertion of the petitioner that no signed copy of the impugned arbitral award was ever received by him has to be treated as correct. If that is so, the question that would arise for consideration is whether the present petition can be said to be belated, so as to justify its dismissal on that ground.
5. Mr. Mahapatra draws attention to four communications addressed by the petitioner to the respondent, on 9 February 2022, 21 June 2022, 16 August 2022 and 25 November 2022, all of which, according to him, manifest knowledge on the part of the petitioner of the passing of the impugned award. If the petitioner was aware of the passing of the award, Mr. Mahapatra submits that it was for the petitioner to correspond with the arbitrator and obtain a signed copy Signature Not Verified OMP (COMM) 270/2023 Page 3 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 thereof. The petitioner cannot, in full awareness of the passing of the award, delay filing of the Section 34 challenge on the ground that no signed copy of the award had been made available to him.
6. I may observe that, in para 10 of the order dated 1 April 2024, this Court has already noted the contention of Mr. Mahapatra that the petitioner was aware of the passing of the impugned award at least on or after 9 February 2022.
7. I am unable to agree with Mr. Mahapatra.
8. Different provisions in the Limitation Act admit of different interpretative approaches. In its recent decision in Pathapati Subba Reddy v. Land Acquisition Officer3, the Supreme Court has underscored this aspect, in para 14:
"14. It may also be important to point out that though on one hand, Section 54 of the Limitation Act is to be construed liberally, but on the other hand, Section 35 of the Limitation Act, being a
3 2024 SCC OnLine SC 513 4 3. Bar of limitation.--
(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. (2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper
officer;
(ii) in the case of a pauper, when his application for leave to sue as a
pauper is made; and
(iii) in the case of a claim against a company which is being wound up by
the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set-off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set-off, on the same date as the suit in which the set- off is pleaded;
(ii) in the case of a counter-claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
5 5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of Signature Not Verified OMP (COMM) 270/2023 Page 4 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 substantive law of mandatory nature has to be interpreted in a strict sense. In Bhag Mal alias Ram Bux v. Munshi (Dead) by LRs.6, it has been observed that different provisions of Limitation Act may require different construction, as for example, the court exercises its power in a given case liberally in condoning the delay in filing the appeal under Section 5 of the Limitation Act, however, the same may not be true while construing Section 3 of the Limitation Act. It, therefore, follows that though liberal interpretation has to be given in construing Section 5 of the Limitation Act but not in applying Section 3 of the Limitation Act, which has to be construed strictly."
9. Application of any statute of limitation involves two exercises. The first is to ascertain whether the proceeding, as filed, is, or is not, barred by time. This, in the Limitation Act, is relatable to Section 3 - and, in the facts of a given case, perhaps Section 147, if the litigant has been pursuing the cause before a wrong forum. If it is time barred, the next exercise is to assess whether sufficient cause is adduced for condoning the delay, applying Section 5. The Court is required to be
1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
6 (2007) 11 SCC 285 7 14. Exclusion of time of proceeding bona fide in court without jurisdiction.--
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.--For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
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strict while undertaking the former exercise; liberal while undertaking the latter.
10. Strictness in applying Section 3 has itself two facets. The Court cannot relax any period of limitation that the Limitation Act imposes; equally, the Court cannot be stricter than the Act, by interpreting the Articles of the Limitation Act in a manner as would render them more rigid than they already are. The Court cannot, therefore, import, into a provision dealing with limitation, a consideration which finds no place therein.
11. Statutes of limitation affect the rights of parties to seek legal remedies. The right to seek legal remedies is a fundamental right. No doubt, like any other fundamental right, it can be controlled by procedures known to law. However, as the imposition of a period of limitation affects the right to seek legal remedies, the Court has to read the statute of limitation as it stands and cannot import to it a construction which is stricter than emanates from the language of the statute itself.
12. We are concerned, in this case, with Section 3, read with Article 136, of the Limitation Act, and not with Section 5. Mr. Mahapatra's contention is that, as the petitioner had knowledge of the passing of the impugned award at least in February 2022, the period of limitation, for the purposes of Article 136 of the Limitation Act, should be reckoned from that day. Mr. Mahapatra relies on the decisions of learned Single Judges of the High Court of Chhattisgarh
Signature Not Verified OMP (COMM) 270/2023 Page 6 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 in Union of India v. Bhola Prasad Agrawal8, High Court of Bombay in Rahul v. Akola Janta Commercial Co-operative Bank Limited9 and the High Court of Allahabad in Bharatiya Rashtriya Rajmarg Pradhikaran v. Neeraj Sharma10.
13. Interestingly, the judgment of the High Court of Bombay in Rahul specifically notes, with respect to earlier decisions of the Supreme Court in State of Maharashtra v. Ark Builders Pvt. Ltd.11 and Hindustan Construction Co. Ltd. v. Union of India12 in para 16 and 20 of the report, as under :
"16. In Ark Builders the following question was framed by the Hon'ble Apex Court for consideration:--
"Whether the period of limitation for making an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter "the Act") for setting aside an arbitral award is to be reckoned from the date a copy of the award is received by the objector by any means and from any source, or it would start running from the date a signed copy of the award is delivered to him by the arbitrator? This is the short question that arises for consideration in this appeal."
and noticing the expression '--- party making that application had received the arbitral award --', as contained in Section 34(3) read with Section 31(5) of the A & C Act, it was held that the limitation under Section 34(3) would start when the signed copy of the award duly signed by the Arbitral Tribunal, was delivered and not when the copy of the award was received from any other source, in this case a signed copy of the award submitted by the claimant to the respondent, seeking payment in terms of the award, the respondent before the Tribunal, admittedly having not received the award. Tecco Trichy Engineers & Contractors13 was noticed and relied upon.
8 2022 SCC Online Chh 1644 9 (2023) 5 Mah LJ 387 10 2024 SCC Online All 1800 11 (2011) 4 SCC 616 12 AIR 1967 SC 526 13 U.O.I. v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239
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20. In Hindustan Construction Co. Ltd. which was under the old Arbitration Act, while considering the expression 'signed copy of the award', within the meaning of Section 14(2) of the Arbitration Act, 1940, in the context that what was filed was a certified copy of the award, it was held as under:--
"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 signed 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. In the present case, the document was sent by the umpire along with a letter forwarding it to the court. In the letter it was stated that he was sending the award only signed and certified by him. Then turning to the document we find that it begins with the words "now I hereby reproduce a true copy of the said award which is as follows" and this is signed by Sri Dildar Hussain, the umpire. Then follows the copy of the award, at the end we find the words "certified as correct copy of the award dated 27th May, 1961". Underneath appears the signature of Sri Dildar Hussain, the umpire. Clearly therefore the document filed is a true or accurate and full reproduction of the original award and it bears the signature of the umpire, Sri Dildar Hussain, and thus is a signed copy of the award. The fact that the umpire wrote the words "certified as correct copy of the award dated the 27th May, 1961" above his signatures does not in our opinion make any difference and the document it still a signed copy of the award. If anything, these words show that document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as follows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in court was a signed copy of the award as required by Section 14(2)."
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14. These passages from Rahul, in fact, conclude the contention raised by Mr. Mohapatra against him. Limitation for Section 34 would run only from the date a signed copy of the arbitral award is delivered to the party, by the arbitrator.
15. Ergo, I do not deem it necessary to refer to the judgment of the High Court on which Mr. Mahapatra places reliance, even though they, especially the decision of the High Court of Allahabad in Bharatiya Rashtriya Rajmarg Pradhikaran, do seem to suggest that in some cases if a party has knowledge of award, the limitation for filing objections against the award under Section 34(3) might commence. Incidentally, in this context, it may be relevant to reproduce paras 8 and 11 of the judgment of the High Court of Allahabad in Bharatiya Rashtriya Rajmarg Pradhikaran thus :
"8. Delivery of an arbitral award under Section 31(5) of the Arbitration Act plays a pivotal role by initiating various stages of the arbitration process, setting limitation periods, and conferring rights upon the parties. In the realm of sports, where victory and defeat hang in balance, arbitration serves as the referee adjudicating disputes on the field of play. Section 31(5) of the Arbitration Act acts as the final whistle, signalling the end of the match and the declaration of the winner. For the prevailing party, the delivery of the award marks the culmination of their efforts and provides them with a means of enforcing their rights against the losing party. Conversely, for the losing party, the delivery of the award represents the beginning of the period within which they may challenge the award on specified grounds under Section 34 of the Arbitration Act.
*****
11. However, interpreting Section 31(5) too literally in all cases may lead to unjust outcomes, undermining the fundamental objectives of arbitration. The literal adherence to this provision might be used strategically by parties to delay the enforcement of
Signature Not Verified OMP (COMM) 270/2023 Page 9 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 the award, thus defeating the principle of expeditious dispute resolution that arbitration seeks to promote."
16. The High Court of Allahabad has therefore in para 8 of Bharatiya Rashtriya Rajmarg Pradhikaran, clearly noted that Section 31(5) constitutes the statutory terminus ad quem from which the limitation for filing of challenge under Section 34(3) has to be reckoned. To reproduce the somewhat felicitous expressions used by the High Court of Allahabad, Section 31(5) acts as the final whistle signalling the end of the match and the declaration of the winner. Until the winner is declared, in my opinion and with greatest respect to the High Court of Allahabad, it is difficult to comprehend how a sustainable challenge can be launched. If the winner is declared only when the award is delivered to the party in accordance with Section 31(5) of the 1996 Act, it logically follows that the time for challenging the award has to emanate from that date.
17. Section 31(5) does not admit of two interpretations. It clearly envisages an arbitral award being delivered to a party by providing a copy a signed copy of the award. There can, therefore, be no concept of the delivery of an unsigned copy of the arbitral award. Till a signed copy of the arbitral award is delivered to the party, there is no delivery within the meaning of the 1996 Act. If there is no delivery of the arbitral award than even as per para 8 of the judgment of the High Court of Allahabad in Bharatiya Rashtriya Rajmarg Pradhikaran, limitation for filing a challenge under Section 34(3) cannot be said to have commenced. This position also flows from the judgment of the Supreme Court in Ark Builders Pvt. Ltd. and Hindustan
Signature Not Verified OMP (COMM) 270/2023 Page 10 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 Construction Company Ltd. on which reliance was placed by the High Court of Bombay.
18. The resultant position is that the limitation for filing a petition challenging an arbitral award commences only from the date when the signed copy of the arbitral award is provided to the party concerned in terms of Section 31(5) of the 1996 Act. Knowledge of the existence of the award, or even a request to the opposite side to act in terms of the award, cannot set limitation in motion, for the purposes of filing a challenge to the award, in the absence of any statutory stipulation to that effect. There are statutes which envisage the starting of limitation from the date of knowledge. The 1996 Act is not one such statute, at least in so far as Section 34(3) of the Act is concerned. Limitation for the purposes of Section 34(3) commences from the date of receipt of award. The receipt of award, within the meaning of Section 34(3) has to hark back to Section 31(5) which envisages such receipt by delivery on the party of a signed copy of the award.
19. To reiterate, therefore, it is only from the date when a signed copy of the arbitral award is delivered to a party that limitation for challenging the award within the meaning of Section 34(3) of the 1996 Act can be said to commence.
20. The contention of the petitioner that no signed copy of the arbitral award has been received by the petitioner till date has not been rebutted by the respondent despite grant of opportunity. It has therefore to be treated as correct.
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21. On a query from the Court as to how this petition came to be filed, Ms. Bhatt, draws my attention to letter dated 14 July 2022 from the Northern Railway, which reads thus :
"No.CIID/SLR/TN/12394/2012 (duplicate)
Date : 14/07/2022
Sh. Darshan Jaiswal E-412, Hari Nagar, Part-II, Jaitpur, Badarpur, New Delhi.
Sub: Your request to provide the information about relevant rule
Vide your above referred letter it was requested to provide information about rule according to which security deposit vide FDR no.060200DP00007232 was released on 13.06.22.."
As regards to releasing of security deposit, it may be noted that A leasing contract of 04 tonnes in F-2 Compartment of train no.12392(NDLS to RJPB) was allotted to you for a period of three years (13/12/2012 to 12/12/2015).
However, due to conversion of the conventional rakes of train no.12394 into LHB rakes, the contract was terminated on account of operational exigencies by the competent authority in terms of clause 21.1 of the agreement.
You requested to this office to allow you to continue your leasing contract but due to non-availability of SLR, the same was denied by competent authority and to oppose same you had approached Hon'ble High Court who further ordered to appoint the arbitrator to solve the matter.
After the arbitration proceedings, an award was passed as "...the amount of ₹1,13,665/- deposited as security deposit shall be refunded as per extant rules if not refunded earlier". In compliance to said arbitration award followed by you request for releasing the security deposit process for releasing the said security deposit was initiated.
Since the original case file was not traceable in this office, the duplicate file was constructed and concerned bank was approached for process to be followed for releasing the Security Deposit FDR in such case.
Meanwhile, you had submitted the duplicate FDR in this office and after genuineness verification from concerned branch said FDR was sent to accounts department for keeping in safe custody and Signature Not Verified OMP (COMM) 270/2023 Page 12 of 13 Signature Not Verified Digitally Signed Digitally Signed By:ROHIT BARARIA By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:16.07.2024 Signing Date:16.07.2024 17:15:35 17:14:33 thereafter releasing the same.
This is for your information.
(Dinesh Sharma) ACM/Freight"
Following this letter, she submits that her client visited the office of the Northern Railway to obtain the photocopy of the award which indicated that it was against the petitioner.
22. Be that as it may, in the facts of this case, I am of the opinion that delay in filing the present petition deserves to be condoned. Accordingly, the delay is condoned. The application stands allowed accordingly.
O.M.P. (COMM) 270/2023
23. Issue notice, returnable on 11 September 2024.
24. Notice is accepted on behalf of the respondent by Mr. Mahapatra.
25. Reply, if any, be filed within four weeks with an advance copy to learned counsel for the petitioner who may file rejoinder thereto, if any, within four weeks thereof.
C.HARI SHANKAR, J
JULY 10, 2024/yg
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