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Union Of India And Others v. Radha Krishna Seth And Another

Allahabad High Court

Sep 14, 2005

Judgment

Subsequent
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Factual and Procedural Background

Pursuant to an arbitration agreement, arbitrators made an award dated 5.1.2001. A certified copy of that award was served on the appellants on 1.2.2001. The appellants filed an objection under section 34 of the Arbitration and Conciliation Act, 1996 together with an application under section 5 of the Limitation Act for condonation of delay on 9.6.2003, resulting in a delay of 2 years, 4 months and 8 days. The respondents contested the maintainability of the section 5 application and argued that the section 34 objection was barred by the three-month limitation period. The District Judge, Lucknow, relying on Union Of India v. Popular Construction Co., 2001 45 ALR 531 SC, held that the proviso to section 34(3) precluded the applicability of section 5 of the Limitation Act and that only one month's delay could be condoned; accordingly the District Judge dismissed the section 5 application and the section 34 objection as time-barred. The appellants appealed to the court that delivered the present opinion.

Legal Issues Presented

What is the legal meaning of the phrase "signed copy" in the context of section 31(5) of the Arbitration and Conciliation Act, 1996—does it encompass a "certified copy" supplied by the arbitrator?
Whether section 5 of the Limitation Act is applicable to an application for condonation of delay in filing an objection under section 34 of the Arbitration and Conciliation Act, 1996.
Whether an appeal under section 37 of the Arbitration and Conciliation Act lies against an order refusing to condone delay and dismissing an objection under section 34 on the ground of limitation.

Arguments of the Parties

Appellants' Arguments

Relying on section 31(5) of the Arbitration and Conciliation Act, 1996, the appellants contended that a "signed copy" must be supplied after the award is made; since they received only a certified copy and not a signed copy, limitation did not start to run from the date they received the certified copy.
The appellants contended that their objection under section 34 was therefore not barred by limitation and that an order rejecting their objection on that basis could be challenged by way of appeal.

Respondents' Arguments

The respondents objected to the maintainability of the appeal, arguing that the impugned order was not one against which an appeal lies under section 37 and that the appeal is therefore not maintainable.
They also contended that the section 34 objection was barred by the three-month limitation period and that section 5 of the Limitation Act was not applicable to extend that period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union Of India v. Popular Construction Co., 2001 45 ALR 531 SC	The Supreme Court held that the provisions of section 5 of the Limitation Act are not applicable to an application under section 34 of the Arbitration and Conciliation Act; the proviso "but not thereafter" in section 34(3) constitutes an express exclusion of the Limitation Act's section 5, making the time limit under section 34 absolute and unextendable.	The court applied this authority to conclude that section 5 of the Limitation Act could not be invoked to condone delay in filing an objection under section 34, and therefore the appellants' section 5 application had no applicability to their delayed section 34 objection.
Mlikarjun v. Gulberga University, JT 2005 6 SC 402	The Supreme Court treated a certified copy of an award furnished by an arbitrator pursuant to a court direction as sufficient compliance with the requirement to supply a copy (i.e., a copy given by the arbitrator was treated as adequate for the purpose of starting limitation).	The court relied on this authority to hold that the certified copy supplied to the appellants constituted the "signed copy" within the meaning of law for the purpose of starting the limitation period; consequently limitation began from 1.2.2001 when the certified copy was received.

Court's Reasoning and Analysis

The court proceeded in a stepwise analytical manner, grounded in textual interpretation and cited authorities:

Factual matrix: The award was dated 5.1.2001 and a certified copy was served on the appellants on 1.2.2001; the section 34 objection with a section 5 Limitation Act application was filed on 9.6.2003 (delay: 2 years, 4 months, 8 days).
The court identified threshold issues: the meaning of "signed copy" and the applicability of section 5 of the Limitation Act to section 34 proceedings.
The appellants' central contention (that limitation had not begun because no "signed copy" had been furnished) required interpretation of the words "copy" and "signed". The court reviewed dictionary meanings (Webster's) and definitions from Words and Phrases to understand both terms.
After considering definitions, the court concluded that "copy" ordinarily means a reproduction or transcript (not the original) and that "signed" encompasses acts of authenticating an instrument by signature or equivalent methods. When used together, "signed copy" reasonably denotes an authenticated copy duly signed to certify genuineness — in practical terms akin to a "certified copy".
The court examined Mlikarjun v. Gulberga University, where a certified copy supplied by the arbitrator pursuant to a writ direction was treated as sufficient compliance with the statute. The court treated this authority as supporting the view that furnishing a certified copy satisfied the statutory requirement.
Applying that conclusion to the facts, the court held that the appellants received the requisite copy (a certified/signed copy) on 1.2.2001 and therefore the limitation period prescribed by section 34 commenced from that date.
On the applicability of the Limitation Act, the court relied on Union Of India v. Popular Construction Co. (supra), which determined that the language of the proviso to section 34(3) ("but not thereafter") and the scheme of the Arbitration and Conciliation Act, 1996, operate to exclude the applicability of section 5 of the Limitation Act to applications under section 34.
Consequently, the court held that the section 5 Limitation Act application could not be the basis to condone the appellants' delay beyond the statutory period (three months plus at most one month under the proviso), and since the objection was filed well after that period, it was time-barred.
Separately, on procedural maintainability, the court analyzed section 37 of the Arbitration and Conciliation Act and observed that appeals lie only against specific categories of orders (inter alia setting aside refusals under section 34). The impugned order refused condonation and dismissed the section 34 objection on limitation grounds; the court concluded that such an order is not appealable under section 37 and can only be challenged in revision.

Holding and Implications

Holding: The appeal is dismissed as not maintainable.

Supporting legal holdings and immediate legal effects drawn by the court:

The court held that the phrase "signed copy" in the statutory context is satisfied by a "certified copy" and that the appellants received such a copy on 1.2.2001, thereby starting the limitation period from that date.
The court held, following Union Of India v. Popular Construction Co., that section 5 of the Limitation Act is not applicable to condoning delay for filing objections under section 34 of the Arbitration and Conciliation Act; the time limits in section 34 are absolute except for the limited proviso period (three months plus at most one additional month under the proviso to section 34(3)).
Because the appellants filed their section 34 objection after more than two years and four months, the objection was barred by limitation and was rightly rejected by the District Judge.
Procedurally, the court held that an order refusing condonation of delay and dismissing an objection under section 34 on limitation grounds is not appealable under section 37; such a decision can only be challenged by way of revision. Consequently, the present appeal was not maintainable and was dismissed. No conversion to revision was sought by the appellants.
No costs were ordered; the court expressly recorded "There will be no order as to costs."

Show all summary ...

U.K Dhaon and R.P Yadav, JJ.:— The order impugned in this appeal under section 37 of the Arbitration and Conciliation Act No. 26 of 1996 (hereinafter called the Act) is dated 1.4.2005 passed by the District Judge, Lucknow rejecting an application under section 5 of the Limitation Act for condonation of delay as not maintainable and dismissing the objection under section 34 of the Act as barred by limitation.

2. It appears that pursuant to some arbitration agreement, the Arbitrators were appointed, who gave their arbitral award on 5.1.2001 A certified copy of the said award was served on the appellants on 1.2.2001 An objection purporting to be under section 34 of the Act alongwith an application under section 5 of the Limitation Act was filed before the learned District Judge, Lucknow on 9.6.2003 As such, there was delay of 2 years, 4 months and 8 days. The respondents objected to the maintainability of the application under section 5 of the Limitation Act and pleaded that objection under section 34 of the Act was barred by limitation provided under the law, which was three months only. The learned District Judge, Lucknow relying on the case of Union Of India v. Popular Construction Co.. . 2001 45 ALR 531 SC., held that the proviso to section 34(3) excluded the applicability of section 5 of the Limitation Act and that only one month's delay and no more could be condoned under the proviso added to section 34(3) of the Act. He, therefore, dismissed the application and objection under section 34 of the Act.

3. Aggrieved, the appellants have come up with this appeal.

4. At the very thresh-hold an objection was raised by Shri Ravi Nath, the learned Counsel for respondents that the appeal is not maintainable against the impugned order, which lies only against the final order passed on an objection under section 34 of the Act.

5. Shri Deepak Srivastava, learned Counsel for the appellants have vehemently urged that the provisions of section 31(5) requires that after the arbitral award is made a signed copy thereof shall be given to each party and since no signed copy was supplied till this date and it was only a certified copy, which was given to him, the limitation did not start to run and his objection under section 34 of the Act is not barred by limitation and the same was maintainable, therefore, an order throwing his objection away on false and untenable ground can be challenged in appeal only.

6. Before we proceed to decide the maintainability of appeal, the important question which hinges for immediate attention is as to what is the actual meaning of the word “signed copy”. No material was produced by the parties' Counsel explaining or defining the said words. What was the legislative intention while using the words “signed copy”? Before we find out the meaning of the words “signed copy”, let us first understand the meaning of the word “copy”. On understanding the correct meaning of word “copy” it would be easy to understand the true import of “signed copy”.

7. In Websters Universal Dictionary and Thesaurus (2002 Edition) “copy” when used as a noun means reproduction, a transcript, imitation, a manuscript for printing, newspapers text and when used as a verb means to make a copy, to reproduce, to imitate, to create duplicate of a file (computer) word. In the Thesaurus its synonymous are counter-script, duplicate, facsimile, replica, reproduction transcript. “Sign” means indicate, signify, countersign, endorse, subscribe.

8. In Words and Phrases (permanent edition)-9A—“copy” has been defined to mean in “general” as a writing like another writing, a true transcript of an original, a reproduction of the original work. In common and legal acceptation, a copy is not an original. The noun copy ordinarily and as used in copy right cases signifies a tangible object that is reproduction of the original work.

9. In volume 39 of Permanent Edition of Words and Phrases, the word “sign” as a verb is said to have several shades of meaning, and hence a statutory retirement that an instrument shall be “signed” by some person or officer to make it complete is much more general and comprehensive that a similar requirement that such an instrument or pleading must be subscribed by the person or officer. On the same principle, the signing of a written instrument has a much broader and more extended meaning than attaching his written signature to it, which implies when a person attaches his name or causes it to be attached to a writing by any of the known methods of impressing his name upon paper with the intention of signing it, he is regarded as having signed in writing. A signature……..consists both of the act of writing the party's name and of the intention thereby the finally authenticating it.

10. As defined by Bourier “signature” is understood as the art of putting down a man's name at the end of an instrument to attest its validity.

11. In view of the above meanings of the words “copy” and “signed” it can be reasonably be said that when the word signed and copy are conjunctively used they would mean an authenticated copy duly signed to certify the genuineness of the document or in other words it may be called as the ‘certified copy’.

12. In the case of Mlikarjun v. Gulberga University . JT 2005 6 SC 402., when the copy of award was not furnished to the appellant, he filed a writ petition under section 226 of the Constitution of India for issue of writ of mandamus directing the Arbitrator to deliver a certified copy of the award. The Hon'ble High Court issued a direction and in compliance thereof the Arbitrator sent a certified copy of the award, which was pending execution and thereafter objection under section 47, C.P.C was filed by the other party and the matter went upto the Hon'ble Supreme Court on the point of “arbitration agreement” but the certified copy given by the Arbitrator was treated as sufficient compliance of law as contained in the said Act of 1996.

13. In view of the above, furnishing of a certified copy by Arbitrator was sufficient compliance of the requirement of law and the appellants ought to have filed an objection under section 34 of the Act within 3 months from 1.2.2001, the date when they received the certified copy and in any event within a month further by seeking condonation of delay under the proviso to section 34(3) of the Act, but no objection could be filed thereafter i.e after the expiry of four months' period.

14. So far as the application of section 5 of Limitation Act for filing delayed objection under section 34 of Act, the matter is no more res integra and it stands finally decided as per edict of the Hon'ble Supreme Court in Union Of India v. Popular Construction Co.. (supra).

15. It would be apposite to excerpt the following from the aforesaid authority:—

“The provisions of section 5 Limitation Act, 1963 are not applicable to an application challenging an award, under section 34 and as such there was no scope for assessing sufficiency of the cause for the delay beyond the period prescribed in proviso to section 34. The crucial words in section 34 are ‘but not thereafter’ used in the proviso to sub-section (3). This phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. Apart from the language, ‘express exclusion’ may follow from the scheme and object of the special or local law. The history and scheme of the 1996 Act support the conclusion that the time limit prescribed under section 34 to challenge an award is absolute and unextendable by Court under section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need ‘to minimize’ the supervisory role of Courts in the arbitral process’. This objective has found expression in section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms. The ‘part’ referred to in section 5 is part 1 of the 1996 Act which deals with domestic Arbitration. Section 34 is contained in part 1 and is therefore subject to the sweep of the prohibition contained in section 5 of the 1996 Act.

By virtue of section 34(1), recourse to the Court against on arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under section 34 is emphasised by the provision of section 36. It is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the Court was required to “proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow”. Now the consequence of the time expiry under section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in section 34, the scheme of 1996 Act would resolve the issue in favour of curtailment of the Court's powers by the exclusion of the operation of section 5 of the Limitation Act.”

16. In view of the above decision of the Hon'ble Supreme Court, we hold that section 5 of the Limitation Act is not applicable for condoning delay in filing objection under section 34 of the Act and the delay could not be condoned in exercise of the powers under section 5 of the Limitation Act.

17. The objection under section 34 of the Act could be filed within three months or within one month further with a prayer for condonation of delay disclosing sufficient grounds as permissible under the proviso to section 34(3) of the Act, whereas objection was filed after more than two years four months period. So, it was barred by limitation and was rightly rejected. The appellants cannot be permitted to assail it on the ground that it was within time as signed copy was not given to him. “Certified copy” was the “signed copy” within the meaning of law.

18. Rejection of application under section 5 of the Limitation Act for condonation of delay can be challenged only in revision. No appeal lies against the impugned order because under section 37 of the Act an appeal lies against the following orders only:—

“1(a) granting or refusing to grant any measure under section 9;

(b) setting aside or refusing to set aside an arbitral award under section 34.

2. An appeal shall also lie to a Court from an order of the Arbitral Tribunal:—

(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.”

19. The impugned order has been passed refusing to condone delay and dismissing the objection under section 34 of the Act on the ground of being barred by limitation. Therefore, no appeal can lie against this order. The preliminary objection is, therefore, sustained.

20. No prayer is made for conversion of appeal into revision.

21. The appeal is, therefore, dismissed as not maintainable.

22. There will be no order as to costs.

Appeal Dismissed.