- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.2026 OF 2003 NO.2026 OF 2003 NO.2026 OF 2003 Satish Tandon ... Petitioner v/s Indian Motion Pictures Distributors Association and others ... Respondents Mr A.S. Khandeparkar for Petitioner. Mr K.P. Jain i/b Ms Mamta Shah for Respondent No.2. CORAM : D.K.DESHMUKH J. DATE : 26TH AUGUST 2004 - 2 - P.C.: - 1. By this petition filed under Article 226 of the Constitution of India, the petitioner challenges an award made by the adjudication sub-committee of Indian Motion Pictures Distributors Association. Against that award, an arbitration petition No.26 of 2003 was filed in this Court. Notice of motion No.373 of 2002 was taken out in that arbitration petition for condonation of delay. Perusal of the order passed in that notice of motion dated 8th July 2003 shows that the petitioner did not disclose the date on which he received the award, but the stand of the respondent No.1 in whose favour the award was made, was that he delivered copy of the award to the petitioner on 6th March 2002 and acknowledgment has already ben filed in execution proceedings which were pending in this Court for executing the award. The Court took 6th March 2002 as the date of service of the award and on finding that the petition has not been filed within three months from the date of service of the award as also within a period of 30 days thereafter, notice of motion was disposed off. The present petition has been filed thereafter challenging the same award. statement is made that the petitioner was never served - 3 - The petitioner, relying on a judgment of the learned Single Judge of this Court in the case of M/s Anuptech Equipments Pvt.Ltd. v/s M/s Ganpati Co-op. Housing Society Ltd., Mumbai and others, reported in AIR 1999 Bombay 219 states that because the remedy of the petitioner of challenging the award by filing a petition under section 34 of the Arbitration and Conciliation act 1996 is barred, he can challenge the award by filing the petition under Article 226 of the Constitution of India. In my opinion, that is not the law laid down by the learned Single Judge in the above referred judgment. However even assuming that it is the law laid down by the learned Single Judge, then also, in my opinion, the petitioner, after allowing his remedy provided by the statute viz. Arbitration and Conciliation Act, to be barred by limitation, cannot be permitted to turn around and challenge the same by filing writ petition under Article 226 of the Constitution of India. The submission of the petitioner is that the Arbitration and Conciliation Act give only four months’ time to the person against whom award is made to challenge the award by filing a petition under section 34 of the said Act, but if a person cannot approach the Court within a period of four months for reasons and circumstances beyond his control, then he has no remedy provided by the Arbitration Act and therefore a writ petition filed - 4 - by him under Article 226 of the Constitution of India is maintainable. Even if the entire submission of the learned counsel appearing for petitioner is taken to be correct, then also, in my opinion, the present petition cannot be entertained because for entertaining this petition on the above stated logic, the Court will have to record the finding that the petitioner could not approach the Court within the time allowed by the statute under section 34 for reasons beyond his control. 2. Therefore, it becomes necessary for me to examine the facts as disclosed by the Petitioner (i) in the arbitration petition, (ii) notice of motion and (iii) the present petition, in relation to inability to challenge the award within the time allowed by the Arbitration Act. Arbitration Petition No.26 of 2003 was filed in Court on 4-10-2002. In that petition, the Petitioner in paragraph 9 states thus: "The Petitioner returned to Bombay on 28th July, 2002. The Petitioner states that after his return, he was served with insolvency Notice. The Petitioner , therefore made inquiries in his office as to there was any communication against his request for fresh hearing. The Petitioner states that he was informed that no communication was received from the Respondents. The - 5 - Petitioner states that hence there is delay in filing the present Petition. The said delay is neither deliberate nor intentional. Hence, the delay be condoned." 3. In the affidavit filed in support of the Notice of Motion No.373 of 2002, which was taken out by the Petitioner for condonation of delay in filing the Arbitration Petition, the Petitioner in paragraphs 3, 4 and 5 states as under:- 3. I state that the said ex-parte Award was passed while I was occupied in looking after my ailing father at Jalandar, Punjab. I state that may father was suffering from terminal Cancer and as such he was in very serious condition. I state that I had also made a representation to the Association, which is passed an Ex-parte Award to reconsider and allow me to defend Arbitration proceedings. I state that since I did not receive any reply from the Association. I have now filed the above Arbitration Petition challenging the said Award dated 20-2-2002. - 6 - 4. I state that unfortunately after suffering from terminal illness for substantially long period on 17/10/2002 my father passed away at Jalandar, State of Punjab. I state that the last rites were performed at Jalandar and I was in Jalandar for the purposes of attending of my father’s last rites. I also had to go to Haridwar with a urm of ashes for performing the last rites. 5. I state that due to the above facts and circumstances, I was not in position to challenge the said Award in time and hence, there is a delay of 193 days in filing the above Arbitration Petition. Now, from the above quoted portion from the affidavit of the Petitioner it is clear that at two places he states that he came to Bombay from Jalandar where he had gone to attend to his father on 28-7-2002. Arbitration Petition was filed on 4-10-2002. There is no explanation to be found anywhere as to why when he had come to Bombay on 28-7-2002 he could not file Arbitration Petition till 4-10-2002. It is clear that starting point of limitation for filing a petition under - 7 - Section 34 of the Arbitration Act is the date on which the award is served. In the Arbitration Petition, so far as service of the award on the Petitioner is concerned, the Petitioner states in paragraph 8 "Despite receipt of the said Letter, the 1st Respondent delivered the Award Ex-parte favouring the 2nd Respondent and directing the Petitioner to pay an amount of Rs.39,30,000/- along with interest @ 24 p.a. from 5-4-2001 within 30 days of intimation. The Petitioner states that in the meantime while at Jallandhar he was informed about the Award". In the Arbitration Petition, thus, it is not said that he received the award on any particular date or that he has actually received the award though he has annexed the copy of the award with the petition. In the affidavit filed in support of the Notice of Motion for condonation of delay, the Petitioner does not say that he received the award. In the Notice of Motion an order was passed by this Court dated 8th July, 2003. In that order a clear finding has been recorded that the award was served on the Petitioner on 6-3-2002. The relevant portion reads thus: In the petition the Petitioner does not state as to on what date he received the award. The Respondent has filed an - 8 - affidavit and has made a categorical statement that the Respondent No.1 delivered to the Petitioner a copy of the award on 6-3-2002 and that the Respondent No.1 holds acknowledgement for the same which has already been filed in execution proceedings which are pending. This statement is not denied by the Petitioner. With this finding the Notice of Motion was dismissed. Consequently, Arbitration Petition also stood dismissed. The above order was passed on 8th July, 2003. Affidavit in support of the present petition is dated 29th July, 2003. In paragraph 8 of this petition, despite clear finding recorded in the order dated 8th July, 2003 passed in Notice of Motion No.373 of 2003 that the award was served on the Petitioner on 6-3-2002, the Petitioner states that the Petitioner was not served with the Award. It is pertinent to note here that the order dated 8th July, 2003 passed in Notice of Motion No.373 of 2003 has not been challenged by the Petitioner. 4. Now, if the starting point of limitation is taken as 6-3-2002, then one does not find any material - 9 - placed on record by the Petitioner which will even indicate that it was impossible for the Petitioner to file Arbitration Petition challenging the award within a period of four months from 6-3-2002. In the Arbitration Petition the Petitioner states that he could not appear before the Arbitrator because his father was ill. But he states that he came to Bombay on 28th July, 2002. One does not find any reason given why he could not come to Bombay earlier than 28-7-2002, specially when he was served with the award on 6-3-2002. If one peruses the affidavit filed in support of the motion, relevant portions of which have been quoted above, it suggests that due to illness of his father the Petitioner was not in a position to file an arbitration petition till the death of his father on 17-10-2002. The documents that have been produced along with the affidavit filed in support of the motion are all of February, 2002 in relation to illness of the father of the Petitioner. In short, there is no material placed on record to show that from the date of service of the award on the Petitioner on 6-3-2002, the circumstances due to which he could not file the Petition. In the absence of such details, in my opinion, one cannot accept the case of the Petitioner that he could file the Petition within the period allowed by Section 34 of the Act. - 10 - On the basis of the material produced by the Petitioner on record, it is not possible to record such a finding. Thus, in my opinion, even assuming that the Writ Petition filed by the Petitioner is maintainable, the reliefs claimed by the Petitioner cannot be granted. 5. In my opinion, it is necessary to refer to the conduct of the Petitioner. The Petitioner states in the Arbitration Petition that he was served with notices from the Arbitral Tribunal, but he wrote a letter dated 18-2-2002 to the Arbitral Tribunal that he is not in a position to appear before the Arbitral Tribunal because of illness of his father, still the arbitral tribunal passed the award. Perusal of the award, however, shows that according to the Arbitral Tribunal the Petitioner was avoiding to appear before the Arbitral Tribunal on one pretext or the other. He had sought adjournments on 9-11-2001 and 18-1-2002. In my opinion, following from the award is relevant: "The Committee observed that the Respondent Producer had been avoiding to appear before the meeting under one pretext or the other. The Committee also observed that the producer, had sought adjournment for the - 11 - meetings held on 9.11.01 and 18.01.02. At the meeting of the committee held on 18.01.02 when the Business Executive of the Respondent Producer was present for seeking an adjournment, he assured the Committee that Shri Satish Tandon or his authorised representative would positively attend the next meeting. In spite of such assurance, the producer failed to attend the meeting and represent his side of the case. The Committee also observed that the Respondent producer had already accepted the claim of the distributor of the sum of Rs.39,50,000/- and handed over 8 post dated cheques along with their letter dated 5.4.2001 covering the said outstanding but failed to honour those cheques in spite of their undertaking. The Committee therefore observed that the Respondent Producer was liable to pay the Complainant distributor Rs.39,50,000/- being refund of unrecouped advance paid against the picture JUNG. The Committee accordingly passed the following Award:" - 12 - Perusal of the arbitration petition shows that the Petitioner has suppressed that he had appeared before the arbitral tribunal and had sought time. In the Arbitration petition one does not find any statement that the above quoted observations made by the arbitral tribunal are factually wrong. In the writ petition also the Petitioner does not claim that the above quoted observations in the award are wrong. It is clear from the award that the proceedings before the arbitral tribunal were going on at least from November, 2001. In those proceedings the Petitioner was seeking adjournments. The Petitioner remained absent before the arbitral tribunal without any reason. He was served with the award on 6-3-2002. While filing arbitration petition he suppressed that fact and claimed that the award has not been served on him. In fact, it appears from the affidavit filed by the Respondent in Arbitration Petition as also this petition, that arbitration petition was filed by the Petitioner only when execution proceedings were taken up and his property was attached. Thus, really speaking the Petitioner is guilty of suppressing all relevant facts in the Arbitration Petition as also in this Writ Petition. By order dated 8th July, 2003 a clear finding was recorded that the award was served - 13 - on the Petitioner on 6-3-2002. The Petitioner has accepted that finding, still in the writ petition he makes a claim that award has not been served on him. In my opinion, therefore, the conduct of the Petitioner of filing this Writ Petition amounts to abusing process of the Court and therefore, in my opinion, mere dismissal of the petition will not serve interest of justice, to discourage the Petitioner and the litigants like him from abusing the process of the court by filing the proceedings after proceedings in the court suppressing the facts and making false statement, exemplary costs have to be imposed on the Petitioner. 6. In the result, therefore, the petition fails and is dismissed. Rule discharged. The Petitioner is directed to pay to the Respondent No.2 as and by way of costs of this petition an amount of Rs.1 lakh. Parties to act on ordinary copy of the order duly authenticated by the Associate/ Personal Secretary of the Court as a true copy. ...