O.M.P.(COMM)--244/2019. Case: MINISTRY OF HEALTH AND FAMILY WELFARE & ANR Vs. M/S HOSMAC PROJECTS DIVISION OF HOSMAC INDIA PVT. LTD.. High Court of Delhi (India)
| Case Number | O.M.P.(COMM)--244/2019 |
| Citation | NA |
| Judgement Date | September 12, 2019 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: 22nd August, 2019 Pronounced on: 12th September, 2019 O.M.P. (COMM) 244/2019, I.A. 8751/2019, I.A. 8752/2019 & I.A. 8753/2019
MINISTRY OF HEALTH AND FAMILY WELFARE & ANR... Petitioner Through: Mr. Praveen Kumar Jain, Adv.
With Ms. Akanksha Agrawal, Adv. with Dr. Yashwant singh/Addl. M. Mr. Pankaj Kumar Sinha/ DDA, Mr.Anil Bhatt/ O.S and
Murari Kumar, LDC/ RML Hospital. versus
M/S HOSMAC PROJECTS DIVISION OF HOSMAC INDIA PVT. LTD. ..... Respondent Through: Mr. Nakul Dewan, Sr. Adv. With Mr.
Himanshu Chaubey, Adv.
JUDGMENT
SANJEEV NARULA, J
I.A No 8750 of 2019 (U/Sec. 34(3) of the A&C Act, 1996, r/w Section 151 CPC for condonation of delay in filing)
1 . The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 has been filed against the Arbitral Award dated 20th November 2018, passed by the Sole Arbitrator, (hereinafter 'the Arbitrator'), whereby an amount of Rs. 22,05,09,651/- along with future interest @ 12% p.a., has been allowed in favour of the Respondent, along with the cost of arbitration assessed at Rs. 25 lakh.
Brief Facts:
-
On 7th May 2010, Petitioner No. 1- Ministry of Health and Family Welfare entered into an agreement with the Respondent- Hosmac Projects Ltd., for construction of Emergency Care Services and for renovation of existing VIP Rooms in Respondent No. 2 - Dr. Ram Manohar Lohia Hospital, New Delhi, (hereinafter referred to as 'the Agreement'). On completion of the work, Respondent was issued 'No Objection Certificate' and Completion Certificate dated 11th February 2015. Thereafter, disputes arose between the parties with respect to payment and imposition liquidated damages etc, and on an application of the Respondent, this Court appointed an Arbitratior who passed the impugned Arbitral Award dated 20th November 2018 (hereinafter 'the Award'). On 13th December 2018, Respondent filed an application under Section 33(1)(a) of the Arbitration and Conciliation Act (hereinafter the „Act‟), for correction of computation errors. The application was disposed of and a Corrigendum dated 7th January 2019, was passed, copies whereof were sent to the parties on the same date.
-
The Petitioner seeks condonation of delay in filing the present Petition. As per the records of the Registry of this Court, the present case was filed for the first time on 10th May 2019 and re-filed on 13th May 2019, 31st May 2019 and finally after curing all the defects on 1st July 2019. As on 10th M 2019, there is a delay of 33 days in filing the petition, beyond the statutory period of three months. The law relating to exercise of powers in terms the proviso to Section 34(3) is now well settled. Even if the Court were exercise its discretion in favour of the Petitioner, any delay beyond 30 days
cannot be condoned. In view thereof, on 3rd July 2019, referring to the judgment of the Supreme Court in State of Himachal Pradesh v. Himachal Techno Engineers, (2010) 12 SCC 210 , learned counsel for the Petitioner was queried as to the maintainability of the present petition and why should not be dismissed in limine on account of the statutory bar under Section 34(3) of the Act. Learned counsel for the Petitioner after being granted time to respond to the query of the Court, after seeking instructions contended that there is in fact no delay in the present petition and delay any is liable to condoned. Learned Counsel argued that Petitioner No. 1 was never sent a signed copy of the Arbitral Award by the Arbitrator and the signed copy of the Award was sent only to Petitioner No. 2. Even the Corrigendum order dated 7th January 2019, was delivered only to the authorized representative of Petitioner No. 2 and not to Petitioner No. 1. He argued that Petitioner No. 1 received copy of the Award and the Corrigendum order, from Petitioner No. 2 vide letter dated 14th March 2019 Since the Arbitrator did not send a signed copy of the Award and a copy thereof was received only on 14th March 2019, the period of 90 days would commence from the said date i.e. 14th March 2019.
-
He also argued that delivery of the Arbitral Award on an agent/ Counsel of a party does not amount to proper service on the party. As per Section 31(5) read with Section 2(h) of the Act, a signed copy of the award must delivered to the party to the dispute. Learned Counsel also contended that the limitation period of 90 days, with respect to Petitioner No. 2, should calculated from the date of receipt of the Corrigendum order (9th January 2019) and not from the date of the disposal of the application, filed under
Section 33 of the Act (7th January 2019). The term 'disposed of' in Section 34(3) of the Act, should be implied as the date of receipt of the corrigendum order and not the date of passing of the corrigendum order. In support of his contention learned counsel relied on Section 12(4) of the Limitation Act, 1963 which reads as under:
"4. In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation.—In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."
Analysis and Finding
-
I have given a thoughtful consideration to the submissions of the learned counsel for the Petitioner.
-
First and foremost, it is essential to note the contents of the application seeking condonation of delay in filing the objections under Section 34 of the Act. The application bearing IA No. 8750/2019 discloses the reasons for condonation of delay in the following terms:-
"2. That the petitioners through the present application crave the leave of this Hon'ble Court to condone delay of 31 days in filing the accompanying objections / petition due to the reasons beyond the control of the petitioners.
-
That the petitioners received the impugned corrigendum dt. 07-01-2019 on 09-01-2019 in their office. After receiving the said corrigendum, petitioner no. 2 approached its counsel
for legal opinion. On 09-03-2019, the petitioner received the legal opinion of its counsel and accordingly, after internal discussions and deliberations, on 14-03-2019 the matter was referred to Ministry of Health and Family Welfare for seeking approval from Ministry of Law and Justice. Thereafter, on 07-05-2019, directions were received from Under Secretary, Ministry of Health and Family Welfare to file objections/ petition against the impugned award dt. 20-11-2018 and impugned corrigendum dt. 07-01-2019.
-
That on 09-05-2019, the petitioners approached the Litigation incharge, Delhi High Court, Ministry of Law & Justice, Govt. of India and got appointed the present government counsel for filing objections/ petition against the impugned award dt. 20-11-2018 and impugned corrigendum dt. 07-01-2019 passed by Ld. Sole Arbitrator. Next day itself i.e. 10-05-2019, Ld. Counsel for the petitioners filed the objections/ petition u/s 34 of the Act before this Hon'ble Court.
-
That it is due to such a mandatory long process and necessities, the petitioners could file the accompanying objection/ petition on 10-05-2019 only.
-
That there is no mala fide on the part of the petitioners for the delay that has occurred in filling of the accompanying objections as the same was neither intentional nor deliberate.
-
That no prejudice shall be caused to the respondent, whereas the petitioners will suffer grave injury and prejudice if the present application is not allowed and the petitioners are not being heard on the merits of the case. Huge public money is involved in the present case and the impugned award is likely to be set aside by this Hon'ble Court."
-
In support of the above submission, Learned Counsel relied upon the judgement of the Supreme Court in Benarsi Krishna Committee & Ors Karmyogi Shelters Pvt. Ltd (2012) 9 SCC 496, wherein it has been held
under:-
"15. The expression “party”, as defined in Section 2(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or Advocate empowered to act on the basis of a Vakalatnama. In such circumstances, proper compliance with Section 31(5) would mean delivery of a signed copy of the Arbitral Award on the party himself and not on his Advocate, which gives the party concerned the right to proceed under Section 34(3) of the...
To continue reading
Request your trial