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2018 (3) TMI 1435
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....rbitral award dated 07.07.1996 was time barred under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 (for short "the Act"). 3. The facts of the case are that the appellant No.1/Anilkumar Patel and respondent No.1/Pravinchandra Patel are real brothers and sons of Jinabhai. They had three other brothers who were already separated. So far as the parties before us, they are related as under:- Pravinchandra Patel and Anilkumar Patel together started the business of fertilizer manufacturing, chemical and real estate at Jalgaon. In the course of business, they set up number of companies and partnership concerns and acquired numerous immovable and movable properties. Pravinchandra Patel has three daughters, who are married and settled outside Jalgaon. Anilkumar Patel has three sons, who are residing with him at Jalgaon. As children of Pravinchandra Patel and Anilkumar Patel grew up and in order to avoid any possible litigation, both the brothers and their family members decided to make division of the assets of the family. For this purpose, they approached Latikaben (respondent No.12) and Bhikhalal Nathalal Patel (respondent No.11) who is the sister and ....
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....d dated 07.07.1996. Therefore, as per the appellant-Anilkumar Patel, period of limitation starts only from 11.08.2005, from the date of their receipt of copy of the award. It was further alleged that, appellant Nos. 1(a) to 1(d) and respondent No.10 were not included as party in the award dated 07.07.1996 and the award is not binding on them. They have, inter alia, alleged that the award is a false and fraudulent document. They also emphasized that the signature of Anilkumar Patel in the arbitral award showing his acknowledgement was forged and therefore, could not be acted upon. 7. Later on, an application came to be filed by Anilkumar Patel for himself and on behalf of his family members for an amendment under Order VI Rule 17 C.P.C. stating that the arbitration petition No.202 of 2005 filed initially, did not contain the challenge to award dated 03.11.1996 and hence, by an amendment sought to challenge award dated 03.11.1996 as well. The said application was dismissed on 30.06.2006 by the District Court on the ground of limitation which was further challenged through W.P. No.5502 of 2006 before the High Court. The same was remanded to the District Judge on 21.08.2006 for c....
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....e petition filed under Section 34 of the Act challenging the award dated 07.07.1996 came to be dismissed. 10. On behalf of legal heirs of Anilkumar Patel, it was contended that as contemplated under Section 31(5) of the Act, copy of the award dated 07.07.1996 was not served upon the family members of Anilkumar Patel and mere knowledge as to the existence of the award would not in any manner result in the commencement of period of limitation. The learned senior counsel for the appellants contended that the limitation period can be computed only from the day on which the original signed copy of the arbitral award is received under the provision of Section 31(5) of the Arbitration and Conciliation Act, 1996. 11. Per contra, learned senior counsel for the respondents has drawn our attention to number of documents to refute appellant's contention wherein appellant-Anilkumar Patel himself admitted many times that the arbitral award was within his knowledge and used the awards dated 07.07.1996 and 03.11.1996 on number of occasions including legal proceedings. Further contention of Pravinchandra Patel is that arbitrators who were none other than their sister Latikaben (respondent....
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....ing the application within the prescribed time, it may entertain the application within a further period of thirty days 'but not thereafter'. (vide State of Arunachal Pradesh v. Damini Construction Co. (2007) 10 SCC 742). The words 'but not thereafter' in the proviso are of mandatory nature, and couched in the negative, and leave no room for doubt. Proviso to Section 34 gives discretion to the court to condone the delay for a sufficient cause, but that discretion cannot be extended beyond the period of thirty days, which is made exclusively clear by use of the words 'but not thereafter'. 15. In Union of India v. Tecco Trichy Engineers and Contractors (2005) 4 SCC 239, a three Judge Bench of this Court, in respect to the issue of limitation for filing application under Section 34 of the Act for setting aside the arbitral award, held that the period of limitation would commence only after a valid delivery of an arbitral award takes place under Section 31(5) of the Act. In para (8), this Court held as under:- "8. 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....
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....got the copy of the award. 18 As pointed out earlier, Anilkumar Patel has signed the award and received the copy of the award with the following endorsement:- "For myself and on behalf of my family members". Whether the receipt of the award by Anilkumar Patel with the above endorsement could be construed as the receipt of the award by his family members- appellant Nos.1(a) to 1(d) and respondent No.10, is the point falling for consideration. 19. In MOU dated 21.05.1996, Pravinchandra Patel and Anilkumar Patel have appointed their sister Latikaben and her husband Bhikhalal Nathalal Patel for effecting partition between the two families and both the families have consented for the same. The MOU was signed by Pravinchandra Patel and his wife and daughters (respondents No.1 to 5) and Anilkumar Patel and his wife and his three sons and one daughter-in-law (appellant No.1 (dead) and appellant Nos. 1(a) to 1(d) and respondent No.10). The MOU appointing arbitrators (21.05.1996) stipulates that: (i) the award to be in writing; and (ii) to furnish copy of the award to each of the members of the families. The relevant portion of MOU reads as under:- ".....The arbitr....
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.... authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members. 22. The award dated 03.11.1996 also refers to the award dated 07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:- "The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same." As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patel's undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members. 23. Awar....
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....lkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- "....The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years....." Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. 26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated 07.07.1996 by drafting choreographed petition. Having accep....