IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 Arb.A.No. 3 of 2010(A) ---------------------- AGAINST THE ORDER IN RP.752/2009 IN OPARB.16/2009 of ADDL.D.C. & ADDL.MACT,ALAPPUZHA. .................... APPELLANTS/PETITIONERS: -------------------------------- 1. THE KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, P.H.CIRCLE, KOTTAYAM. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR SRI.J.KRISHNA KUMAR, SC, KWA RESPONDENT/ RESPONDENT ------------------------- P.T.CHACKO, SANTHA BHAVAN, KALANJOOR P.O., PATHANAPURAM, PATHANAMTHITTA DISTRICT. ADV. SRI.RAJIV ABRAHAM GEORGE FOR R1 SRI.EAPEN ABRAHAM GEORGE FOR R1 THIS ARBITRATION APPEALS HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- Arb.A No.3 of 2010 -------------------------- Dated this the 16th March, 2010 J U D G M E N T Basheer,J. This appeal is directed against the order passed by the District Court, Alappuzha on a petition filed by the appellant under Section 34 of the Arbitration and Conciliation Act,1996 ( for short, The Act) seeking to set aside the award passed by the Arbitrator in the case. 2. The court below after considering the preliminary objection raised by the respondent about maintainability, held that the petition was barred by limitation and accordingly dismissed it. Hence this appeal. 3. It is not in dispute that the sole Arbitrator passed the award on March 31, 2008. Appellants filed the petition to set aside the award under Section 34 of the Act initially before the District Court, Ernakulam on December 20, 2008. Respondent/claimant raised objection with regard to the jurisdiction of the said Court to entertain the application. The objection was upheld by the District Arb.A No.3 of 2010 2 Court, Ernakulam and permission was granted to the appellants to re-present the same before the appropriate court. Accordingly, appellants presented the petition before the District Court, Alapppuzha. 4. Respondent in his counter affidavit pointed out that the petition was hopelessly time barred in view of the provisions contained in as provided under sub section (3) of Section 34 of the Act, as it was filed more than eight months after the award was passed by the Arbitrator. The court below after considering the preliminary issue of bar of limitation held that the contention raised by the respondent was totally valid and justified. 5. Since Sri.Jagadeesha Chandran Nair, learned counsel for the appellants contended before us that copy of the award was not served on the party as postulated under Sub section 5 of Section 31 of the Act, we had called for the records in the arbitral proceedings. On perusal, it is seen from the records that copy of the award was received by Advocate Sri.J. Krishna Kumar, the learned counsel who represented the appellants before the Arbitrator; Arb.A No.3 of 2010 3 whereas on behalf of the respondent, his learned counsel Advocate Sri.Rajeev A.George, had accepted the same. Learned counsel for the appellants contends that the signature seen in the relevant document is not that of Advocate J.Krishna Kumar. We are not making any comment on this aspect at this juncture especially in the absence of any affidavit from the counsel concerned. However, we will revert back to the above issue a little later. 6. As has been noticed already, the award was passed by the Arbitrator on March, 31, 2008. It is on record that respondent/claimant had initiated proceedings for execution of the award before the District Court, Alappuzha on September 6, 2008 in E.P. No.41/2008. It is also on record that the appellants had entered appearance before the execution court through their counsel on October 25, 2008. The case was adjourned at the behest of the appellants to November 5, 2008 to enable them to file objection to the execution petition. 7. Appellants preferred the petition under Section Arb.A No.3 of 2010 4 34 of the Act before the District Court, Ernakulam on December 20, 2008. The said application was later re- presented before the District Court, Alappuzha since the appellants conceded that the court at Ernakulam had no territorial jurisdiction to deal with that application. 8. It may at once be noticed that in paragraph 14 of the application filed under Section 34 of the Act, the appellants had tacitly admitted that the copy of the award was received by them; though the date of receipt was not specifically mentioned. Later, the appellants had filed an application to amend paragraph 14 of the original petition to the following extent: "The copy of the award was not served on the petitioners. But the 1st petitioner's counsel got a copy based on which the O.P is filed under Section 34 on the following grounds" 9. A further amendment was sought to be incorporated seeking the aid of Section 31 (5) read with Section 2 (h) contending that the signed copy of the award ought to have been served on " the party" himself namely the Superintending Engineer who had represented Arb.A No.3 of 2010 5 appellant No.1 before the Arbitrator. 10. Sri.Jagadheesha Chandran Nair, learned counsel for the appellants while inviting our attention to a judgment of their Lordships of the Supreme Court in Union of India Vs. Tecco Trichy Engineers & Contractors [AIR 2005 SC 1832] submits that the word " party" referred to in Section 34 (3) and 31 (5) has to be construed and understood to be the person directly connected with and involved in the arbitral proceedings. Learned counsel submits that serving a copy of the award on any other person be it even the counsel who represented the party before the Arbitrator, will not be sufficient service, as contemplated under the Act. It is further contended by the learned counsel that so long as there was no proper service of copy of the award on the Superintending Engineer who represented the Kerala Water Authority (appellant No.1) before the Arbitrator, the respondent cannot raise the plea of bar of limitation at all. He further submits that the mere fact that the appellants came to know about passing of the award when they received notice from the execution court Arb.A No.3 of 2010 6 will not by itself take away the right vested in them by virtue of sub section (5) of Section 31 of the Act. In short, it is contended by the learned counsel that stricto sense time had not started to run in this case since the copy of the award had not been served on the 'party' as provided under the Act. We are afraid the contention is wholly untenable. 11. As has been noticed already in paragraph 14 of the Original Petition, the appellants had conceded that they had been served with copy of the award, though conveniently or significantly they did not choose to reveal the date on which it was served on them. The Superintending Engineer was a party to the Original Petition. However, an amendment petition was filed later stating that copy of the award was served on the counsel and not on the party. Yet again, date of service of the copy of the award on the counsel was not mentioned. 12. We have referred to the above aspect only to highlight the fact that the appellants had all along been quite evasive about the date of service of the copy of the award, obviously for the reason that it might have put them Arb.A No.3 of 2010 7 in a predicament while trying to explain the delay in filing the petition under Section 34 of the Act. 13. It has already been noticed that appellants had entered appearance in the execution proceedings on October 25, 2008. If, in fact, the Superintending Engineer, who claims to be "the party" concerned had a case that he had not been served with a copy of the award till that date, he ought to have raised the issue then and there. Similarly, if the counsel had a case that he had not signed in the acknowledgment sheet as is revealed from the arbitral records, such an objection ought to have been raised by him at the earliest point of time. On the contrary, the same learned counsel has, in the amendment application, accepted the position that he had in fact received the copy of the award. 14. The fact remains that copy of the award was served by the Arbitrator on the appellants as is seen admitted in para 14 of the Original Petition or at least on their counsel. Sub section (3) of Section 34 postulates that an application to set aside the award has to be filed Arb.A No.3 of 2010 8 within three months from the date on which the party making that application. Of course, the proviso to sub section (3) empowers the court to entertain an application that may be filed beyond the period of three months, if sufficient cause is shown and that too only if it is filed within a further period of 30 days, and not thereafter. In the case on hand, admittedly the application was filed on December 20, 2008 more than eight and half months after the passing of the award. 15. We have carefully perused the judgment in Tecco Trichy Engineers case (supra) on which reliance has been placed by the learned counsel for the appellants. The facts as discernible from the judgment in that case will undoubtedly show that it has no relevance to the case on hand. The Deputy Chief Engineer had represented Union of India before the Arbitrator in that case. The copy of the award was served on the General Manager of the Railways. Their Lordships held that service of notice on the General Manager would not be sufficient service as contemplated under the Act since it was the Deputy Chief Engineer who Arb.A No.3 of 2010 9 had represented the Railway Administration before the Arbitrator. In the case on hand, the Superintending Engineer who had represented the Water Authority before the Arbitrator had himself admitted that he had received copy of the award. Even after receiving notice in execution proceedings, the appellants had not raised any objection with regard to the alleged failure of the Arbitrator to served copy of the award to them. 16. Keeping in view all the above facts and circumstances, we are totally satisfied that the application filed by the appellants to set aside the award was barred by limitation. We do not find any reason to interfere with the impugned order. The appeal fails and it is dismissed accordingly. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma Arb.A No.3 of 2010 10 Arb.A No.3 of 2010 11