2017 (8) TMI 1720

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....ll just exceptions. CMs stand disposed of. FAO No. 324/2017 1. This first appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act‟) impugns the judgment of the Court below dated 30.03.2017 whereby the objections filed by the appellant/objector under Section 34 of the Act have been dismissed. 2. Objections were filed by the appellant against the Arbitral Award of the Arbitrator dated 27.08.2016. By the Award dated 27.08.2016 the Arbitration Tribunal allowed certain claims of the respondent/claimant in terms of paras 120 and 121 thereof and which paras read as under:- "120. Final relief:- i. Claim No.1 Rs. 25 lacs ii. Claim No. 2 Rs. 6,28,336.88 iii. ....

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....dings was with respect to the return of the second part of 50% of the retention amount payable after 12 months defect liability period. 4. There are three main issues which have been urged before this Court on behalf of the appellant/objector. First issue argued is that the amount awarded to the extent of award of interest and costs is against the contract and once the Award is against the terms of the contract, the Award is argued to be ex facie illegal and liable to be set aside. The second issue which was argued is that the claim petition filed by the respondent/claimant was time barred. The third issue which is argued is in relation to the second issue of the claim petition being time barred inasmuch as it is argued that the Arbitrat....

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.... the judgment in the case of Union of India vs. N. K. Garg Company, 2015 (224) DLT 668 that a clause in a contract which bars payment of interest is illegal and is hit by Section 23 of the Indian Contract Act, 1872 and, therefore, such a clause has to be ignored and interest granted to a person whose moneys are illegally retained by the guilty party. 8. At this stage, learned counsel for the respondent before this Court has taken this Court to para 120 of the Award and it is seen that as per the total amount awarded under the Award there is no prelitigation interest awarded. This has been pointed out to the learned senior counsel for the appellant who concedes to this position. Therefore no argument remains with respect to alleged illega....

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....nt has been receiving notices. The relevant paras of the Award, being paras 46 to 52, read as under:- "46. The question is whether invocation notice dated 20.09.2010 sent by the claimant by speed post reached the respondent or not. This notice was sent to the respondent as its two addresses at New Delhi and NOIDA for appointment of sole arbitrator after mutual consent as provided in the agreement to adjudicate the claims set forth in the said notice. A copy of the notice dated 20.09.2010 along with speed post‟ receipts is Exhibit C-7. 47. This notice Ex. C-7 dated 20.09.2010 is addressed to Sh. Shakti Nath Ji C&MD at the following two addresses:- 1. Noida Cyber Park Pvt. Ltd. 18, Kotla Lane, Lower G....

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.... Counsel for the respondent however submits that the postal receipt which is shown at the top of Ex. C-7 as Ex. C7/A shows that it was sent to S. Nath at Pin Code-201001 whereas the actual pin code of Noida is 201301. It is correct that the actual pin code of Noida is not shown on the speed post stamp receipt. However, it cannot be presumed that if correct address is mentioned by a party for Noida, U.P., it may not reach there only because the postal authority has shown wrong pin code on the postal stamp. 51. I now come to further notice dated 28.09.2010 Ex. C-17 given by the claimant company in continuation of their previous notice dated 20.09.2010 requesting for appointment of arbitrator after mutual consultation. This notice is ....