Plea That Signed Copy Of Award Was Not Received Cannot Be Raised For First Time In Appeal U/S 37 Of Arbitration Act: Gujarat High Court

Brief Facts:

The present appeals have been filed against orders passed by the Civil Court by which it dismissed the application seeking condonation of delay in filing the application under section 34 of the Arbitration Act.

There was a substantial delay of approximately 200-230 days in filing the applications under Section 34 of the Arbitration Act on the part of the NHAI. However, it was sought to be argued by National Highway Authority of India (NHAI) that since the signed copy of the award was never received by the NHAI, there was no question of delay in challenging the awards.

Contentions:

The appellant submitted that section 31(1) of the Arbitration Act enjoins the arbitrator to make an award in writing by signing it. Section 31(5) of the Arbitration Act further provides that the signed copy of the award is delivered to each of the parties to the arbitration agreement.

It was also argued that the period of limitation for making an application under Section 34 of the Arbitration Act for setting aside the arbitral award, is to be reckoned from the date the copy of the signed award is received by the applicant.

The Supreme Court in State of Maharashtra and others vs. ARK Builders Private Limited, (2011) held that conjoint reading of two provisions, namely Section 31(5) and Section 34(3) makes it clear that the limitation prescribed under Section 34(3) would commence only from the date the signed copy of the award is delivered to the party making the application for setting it aside.

Observations:

The court noted that the submission that the signed copy of the award was not received by the party therefore the period of limitation cannot be said to have started, was not raised before the civil court under section 34 of the Arbitration Act. This argument has been raised for the first time in this appeal.

It further observed that if the applicant/ NHAI was aware of the fact that the provisions of Section 31(5) had not been complied with and signed copy of the award had not been delivered to the NHAI, it was required to make the said plea before the Court by making a declaration of the fact about the non-delivery or improper delivery of the award in the application under Section 34, itself.

Accordingly, the present appeals were dismissed.

Case Title: NATIONAL HIGHWAYS AUTHORITY OF INDIA Versus KISHORBHAI VALJIBHAI JETHANI & ORS.

Case Number: C/FA/4705/2023

Judgment Date: 14/02/2025

MR MAULIK NANAVATI with MR KISHAN PATEL & MANVI DAMLE, NANAVATI & CO.(7105) for the Appellant(s) No. 1

MS HETAL PATEL for Respondent No.2 and 3

MR CHAITANYA J PATEL with MR RAHUL PATEL for the Defendant(s)

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