1 arbp45.11.doc ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.45 OF 2011 Jitendra Hiralal Shah. .. Petitioner versus Kotak Mahindra Bank & Anr. .. Respondents. Mr. Sean Wassoodew, advocate for petitioner. Mr. A.S.Kamat a/w. Nikhil Rajani i/b. V. Deshpande & Co. for Respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: MARCH 1, 2011 P.C. 1 Heard Mr. Wassoodew, Counsel appearing on behalf of the Petitioner and Mr. Kamat, Counsel appearing on behalf of the Respondents. The Petitioner challenges the award dated 12th March, 2010. 2. This is one more incidence where the Registry of this Office has not raised objection of the Petition being barred by limitation. This Petition is being lodged on 16th December, 2010. The Award is made on 12th March, 2010. The Arbitration and 2 arbp45.11.doc Conciliation Act, 1996 provides for a period of limitation for challenging the award. That application has to be made within 90 days from the date of receipt of award or if any application is made under section 33 of the said Act after disposal of the said application. Thus, the total period of 90 days provided in the substantive provision can be extended only by 30 more days in terms of the proviso. The period cannot be extended beyond the statutory time limit. Yet the Registry without seeking any explanation as to how the challenge to the award by filing the Petition on 16th December, 2010 in the instant case can be raised, proceeded to number this petition. 3 I have already directed in other matters that the Registry should insist upon the Petition not being numbered. In such cases, the Registry should not number the Petition but keep it under stamp/lodging number and leave it open to the Petitioner to take out appropriate proceedings seeking condonation of delay, if permissible in law. If that be not the case, mechanically every such Petition will be numbered and placed before the Court for admission. This is one more instance, where Prothonotary and Senior Master must seek an explanation from the concerned Officer as to how the Petition came to be numbered and thereafter take necessary steps on receipt of the explanation from the concerned 3 arbp45.11.doc Officer. 4 In my view, this Petition deserves to be dismissed on the ground that it is time barred. The Award made in this case is on 12th March, 2010. The Petition is filed on 16th December, 2010. The explanation that is given by the Petitioner is that the Petitioner was unaware of the appointment of the Arbitrator and the Arbitral proceedings. That is the avernment in paragraph-8. In paragraph-9, he states that the Respondent filed exparte evidence before the Arbitrator by way of an affidavit and thereafter, the Arbitrator passed an award dated 12th March, 2010. In paragraph-10, he states that the award is purported to have been dispatched to the Petitioner at the Petitioners old address. The award is stated to have been sent by speed post. It is not known according to the Petitioner, whether the said award is dispatched to the correct address of the Petitioner. The Petitioner states that in any event, he was not residing at his old address and therefore, did not receive copy of the Award. However, perusal of the receipt shows that the award was sent to an address having pin code number 400099 whereas the Petitioners old address had a pin code of 400057. Thus the award is not dispatched to his old address. In paragraph-11 he states that there was warrant of attachment which was issued in Execution Application No.486 of 2009. The Warrant 4 arbp45.11.doc of attachment was pasted at his old address on or about 30th July, 2010 but he was informed about the pasting only on 6th August, 2010 and obtained copy of the pasted notice only on 10th August, 2010. In these circumstances, he made application to this court for issuance of certified copy of the entire proceedings and when he received true copy on 27th October, 2010, he learned about the exparte award. The Petitioner has then filed Writ Petition being Writ Petition No.2329 of 2010, which came to be rejected for want of removal of office objection. 5 This self defeating and contradictory statements in the Petition are enough to attribute knowledge of the Award to the Petitioner. The Petitioner was aware of the award being made when he was aware about its dispatch at his old address. In paragraph-10 does not mention the date when the dispatch was received. He does not dispute in rejoinder affidavit that the old address is that of his parents. He does not dispute that at the same time and atleast on the date of making application for copies, he was residing at the said address. In such circumstances, this Petition is beyond the stipulated time in law. It is dismissed on this ground alone. Even otherwise, I do not find any substance in the challenge to the award merely because it is exparte. 5 arbp45.11.doc 6 The Petitioner's objection raised in the Petition is that the card facility was sanctioned by the Kotak Mahindra Bank Ltd., whereas the Award is in the name of Kotak Mahindra Bank. I do not find any substance in this contention. The Petitioner has been unable to demonstrate that there are two separate entities. Merely by making both party respondents to this Petition does not show that they are different entities and that the award is being executed by somebody else. This is an argument in desperation and the same is made to make delay the execution of the award. However, the ground raised is that there was no arbitral agreement. Terms and conditions incorporated in the arbitration agreement are not to the knowledge of the Petitioner. This is once again a false and frivolous ground. The award itself indicates that the terms and conditions of the agreement were known to him. As to how they are known to him is stated in the award itself. The first respondent-Bank stated that as per the Cardholder Agreement, the terms of the Most Important Terms and Conditions were sent alongwith the Card. The Petitioner accepted the terms and conditions of the card issued by Bank. The application itself had a column that the Petitioner agreed that the terms and conditions are read and perused by him. That would be clear from the form that the Petitioner has produced based upon which the Petitioner was issued a credit card. In such circumstances, there is no 6 arbp45.11.doc substance in this objection as well. This is a clear case where the Petitioner deliberately kept himself away from the arbitral proceedings. The Petitioner has deliberately, after the defaults were to his knowledge, avoided making payment. It is clear that he was buying time by approaching the Bank. In this circumstance, and when the Arbitral Tribunal found that he has kept himself away from the proceedings, I do not find that this is a fit case for interference with the Award. Petition therefore, fails. Accordingly, the Petition is dismissed. No order as to costs. (S.C.DHARMADHIKARI, J.)