(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records in com. A.P. no. 112/2024 pending on the file of lxxxiv addl. city civil and sessions judge (cch-85), (commercial court) bengaluru and etc.)
Cav Order:
1. The Petitioner is before this court seeking for the following reliefs:
a. Call for the records in Com. A.P. NO. 112/2024 pending on the file of LXXXIV ADDL. CITY Civil and Sessions Judge (CCH-85), (Commercial Court) Bengaluru.
b. Hear the petitioner allow the prayer made in IA No. 1 filed in CO. AP. NO. 112/2024 on the file of LXXXIV Addl. City Civil and Sessions Judge (CCH85) Commercial Court, Bengaluru vide Annexure-F;
c. Declare that the COM. AP 112/2024 on the file of LXXXIV Addl. City Civil and Sessions Judge (CCH85), Commercial Court is not maintainable as the same is. barred by limitation.
d. Set aside the orders dt. 08.01.2025 passed on IA No. 1 in COM. AP 112/2024 on the file of LXXXIV Addl.City Civil and Sessions Judge (CCH85) Commercial Court, Bengaluru.
e. Such other relief and reliefs as this Hon’ble Court may deem fit to grant in the facts and circumstances of the case.
2. The petitioner is a dealer operating a retail outlet for petrol and petroleum products under a dealership agreement with the respondent, M/s Hindustan Petroleum Corporation Limited ("HPCL"). The retail outlet has been in operation since the year 1959.
3. On 31.12.2017, HPCL conducted an inspection of the petitioner's retail outlet through its inspection team. Based on the observations recorded during the inspection, a show-cause notice was issued calling upon the petitioner to submit its explanation. Not being satisfied with the explanation offered, HPCL terminated the dealership agreement. Aggrieved by the said termination, the petitioner instituted proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 ("the A&C Act"), seeking an interim injunction against the termination. The competent Court granted an order of injunction.
4. Thereafter, the petitioner invoked the arbitration clause contained in the dealership agreement. Since HPCL did not appoint an Arbitrator, the petitioner approached this Court under Section 11 of the A&C Act. Pursuant to the orders passed by this Court, an Arbitrator was appointed. The arbitral proceedings were conducted under the aegis of the Arbitration and Conciliation Centre, Bengaluru. Upon conclusion of the proceedings, the matter was reserved for award on 14.01.2024.
5. On 15.02.2024, the Arbitration and Conciliation Centre, Bengaluru, addressed a communication to both parties informing them that the arbitral award had been passed on that day and calling upon them to pay the requisite administrative charges payable to the Centre for obtaining the signed copy of the award. HPCL thereafter remitted the requisite charges, obtained the signed copy of the arbitral award on 22.04.2024, and subsequently instituted proceedings under Section 34 of the A&C Act challenging the award.
6. Upon presentation of the petition under Section 34 of the A&C Act, the Registry raised an objection regarding limitation. In response, HPCL contended that the signed copy of the arbitral award had been received only on 22.04.2024 and that the petition presented on 18.07.2024 was within the period of limitation prescribed under Section 34(3) of the A&C Act.
7. The present petitioner thereafter filed I.A. No. I on 08.11.2024 in Com.A.P. No.102 of 2024 contending that the petition under Section 34 was barred by limitation. By order dated 08.01.2025, the LXXXIV Additional City Civil and Sessions Judge (Commercial Court), Bengaluru, rejected the said application.
Aggrieved by the rejection of the application, the petitioner has filed the present writ petition.
8. Sri.Subhash Srinivasa Rangachar, learned counsel for the petitioner submits that;
8.1. The communication issued by the Arbitration and Conciliation Centre on 15.02.2024 categorically stated that the arbitral award had been pronounced on 15.02.2024 and called upon the parties to pay the dues payable to the Centre. The said communication dated 15.02.2024 is reproduced hereunder for easy reference;
AC No.227/2021-Award Pronounced
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Arbitration Centre Thu, 15 Feb 15:02(1 day ago)
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Subhash.iyengar1047, venkey.advo
Kind attention,
I am directed by the Hon'ble Arbitrator that in AC No.227/2021, the award is passed on 15.02.2024. You are hereby informed to pay the dues to the Centre, if any.
As per the decision in Benarsi Krishna Commit. & Ors vs Karmyogi Shelters P.Ltd on 21 September, 2012 by Hon'ble Supreme Court of India in SPECIAL LEAVE PETITION (CIVIL)
No.23860 of 2010 and in view of Section 31(5) and 39 of the A&C Act, 1996 as well, Rule 32(5) and Rule 28(6) of the A&C Centre Rules, 2012, which are self explanatory in nature, the party to the arbitration case has to collect the signed award copy.
Therefore, kindly collect the signed copy of the award personally from the Centre. In case of any difficulty in personally collecting the copy, send a person specially authorised to collect the award along with a written authorisation and identity card, so that the copy of the award could be handed over to him.
Asst. Court Secretary SK*
For Arbitration & Conciliation Centre -
Bengaluru
(Domestic & International)
(an initiative of the High Court of Karnataka) 'Khanija Bhavana' III Floor, East Wing, Racecourse Road, Bengaluru - 560001
Ph: 080-22954573, Fax: 080-22954572
website: www.arbitrationcentreblr.org
8.2. He submits that the Arbitration and Conciliation Centre, Bengaluru, by its communication dated 15.02.2024, categorically informed both parties that the arbitral award had been passed on 15.02.2024 and called upon them to pay the dues payable to the Centre.
8.3. The communication further informed the parties that, in view of Section 31(5) and Section 39 of the Arbitration and Conciliation Act, 1996, Rules 28(6) and 32(5) of the Arbitration and Conciliation Centre Rules, 2012, and the decision of the Hon'ble Supreme Court in Benarsi Krishna Committee & Others v. Karmyogi Shelters Pvt. Ltd ((2012) 9 SCC 496) ., [2012 9 SCC 496], the signed copy of the award had to be collected personally by the parties or through a duly authorised representative.
8.4. He submits that the said communication constituted a clear intimation that the award had been pronounced and was ready for delivery. Consequently, it became the obligation of each party to remit the outstanding dues payable to the Centre and obtain the signed copy of the award without delay.
8.5. He submits that the communication dated 15.02.2024 was followed by an e-mail dated 16.02.2024, reiterating that the award had been passed and calling upon the parties to pay the dues payable to the Centre and collect the signed copy of the award. The said e-mail is reproduced hereunder for easy reference.
Kind attention,
I am directed by the Hon'ble Arbitrator that in AC No.227/2021, the award is passed on 15.02.2024. You are hereby informed to pay the dues to the Centre, if any.
As per the decision in Benarai Krishna Commit.& Ors vs Karmyogi Shelters P.Ltd on 21 September, 2012 by Hon'ble Supreme Court of India in SPECIAL LEAVE PETITION (CIVIL) No.23860 of 2010 and in view of Section 31(5) and 39 of the A&C Act, 1996 as well, Rule 32(5) and Rule 28(6) of the A&C Centre Rules, 2012, which are self explanatory in nature, the party to the arbitration case has to collect the signed award copy.
Therefore, kindly collect the signed copy of the award personally from the Centre. In case of any difficulty in personally collecting the copy, send a person specially authorised to collect the award along with a written authorisation and identity card, so that the copy of the award could be handed over to him.
Asst. Court Secretary SK*
For Arbitration & Conciliation Centre-Bengaluru (Domestic & International)
(an initiative of the High Court of Karnataka) ‘Khanija Bhavana’ III Floor, East Wing,
Racecourse Road, Bengaluru - 560001
Ph: 080-22954573, Fax: 080-22954572
8.6. By relying on the said email, his submission is that there was a clear and categorical intimation to both parties to pay the dues payable to the Centre and collect the signed copy of the award. The e-mail further provided that, in the event a party was unable to personally collect the award, it could authorise a representative to do so upon production of a written authorisation and identity proof.
8.7. He submits that, despite the aforesaid communications, HPCL failed to make payment of the requisite amount. Consequently, the Centre issued yet another communication dated 16.03.2024 calling upon both the claimant and the respondent to deposit a sum of Rs.30,000/-each towards the additional sitting fee at the center and thereafter collect the signed copy of the award and intimated that the demand draft was to be drawn in favour of the Director, Arbitration and Conciliation Centre, Bengaluru.
8.8. Despite the said communication having been issued, he submits that HPCL did not make payment of the amounts. The petitioner, on the other hand, paid the balance amount on 20.02.2024 and, pursuant thereto, collected the signed copy of the award on 05.03.2024. HPCL made the payment only on 28.03.2024. Thereafter, an authorisation letter was issued on 20.04.2024, pursuant to which its authorised signatory collected the signed copy of the award on 22.04.2024.
8.9. His submission is that, though HPCL collected the signed copy of the award on 22.04.2024, its conduct prior to such collection is also required to be taken into consideration for the purpose of ascertaining the period of limitation prescribed under Section 34(3) of the A&C Act, 1996. The said Sub-section (3) of Section 34 of the A & C Act, 1996 is reproduced hereunder for easy reference;
34. Application for setting aside arbitral award:
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
8.10. The submission is that though Sub-section (3) of Section 34 of the A & C Act, 1996 prescribes a period of three months for filing an application to set aside an arbitral award from the date of receipt thereof. The proviso permits the Court to entertain such an application within a further period of thirty days, such extension can be granted only if an application is filed seeking for such extension by making available sufficient cause for the delay in filing a petition under Section 34.
8.11. The communication having been issued on 15.02.2024, the amount due having been intimated on 16.02.2024 it was for the HPCL to have made payment of the balance amount immediately and collected the signed copy of the award. The petitioner had in fact acting on the said communication, made payments immediately on 20.02.2024 and collected the signed copy of the award on 05.03.2024. There was nothing preventing the respondent to also have similarly paid the money as early as possible the intimation having been received on 16.02.2024 and collected the copy. Instead of doing so, respondent has paid the amounts due to the center on 28.03.2024 which is nearly 1 month 12 days from the date of intimation and a copy of award collected on 22.04.2024, the delay from 16.02.2024 to 22.04.2024 is solely attributable to the HPCL.
8.12. The HPCL cannot take advantage of its own wrongs in delaying the payment and collection of the signed copy of the award and thereafter contend that the date on which the copy was received, which would be relevant date for purpose of consideration of limitation under Sub-section (3) of Section 34 of A & C Act, 1996. The time period/limitation prescribed under Sub-section (3) of Section 34 is for speedy resolution of Arbitration Proceedings. There is an embargo on a Court considering an application under Section 34, if it is presented beyond three months. If the submission of HPCL were to be accepted, HPCL could have collected the copy of the award at any point of time and thereafter contend that it is a date from which it received the copy, it would have to be taken into consideration.
8.13. Thus, his submission is that the actions of HPCL are contrary to the scheme and object of the A & C Act,1996 which contemplates a time-bound challenge to an arbitral award. Learned counsel submits that every party is under an obligation to collect the signed copy of the award from the Arbitration and Conciliation Centre, either personally or through an authorised representative, at the earliest. Although the award had been pronounced on 15.02.2024, HPCL failed to make payment of the requisite dues and collect the award within a reasonable time. The delay in payment and collection cannot confer an additional limitation period on the Respondent for the purpose of challenging an award under Section 34 of the A & C Act, 1996.
8.14. He therefore submits that post the period of three months an extension could be granted for a period of 30 days. Beyond the said period of 30 days, no further extension is contemplated under the provisions of the A & C Act, 1996. On that basis, he contends that the application under Section 34 of the Arbitration and Conciliation Act, 1996, filed by HPCL on 18.07.2024, is hopelessly barred by limitation, having been filed beyond the maximum period permissible under law. He submits that the said aspect has not been taken into consideration while entertaining the application under Section 34 of the Act. It is therefore contended that, the petitioner having no other efficacious alternative remedy, is before this Court seeking for setting aside the impugned order dated 08.01.2025 passed by LXXXIV Additional City Civil and Session Judge, Commercial Court, Bengaluru in I.A.No.I in Com.A.P.No.102 of 2024 and consequently to dismiss the petition filed by HPCL under Section 34 of the A & C Act, 1996.
9. Sri.Pramod.B., learned counsel appearing for HPCL would submit that;
9.1. There is no dispute with regard to the arbitral award having been pronounced on 15.02.2024 or the e-mail communication issued by the Arbitration and Conciliation Centre on 16.02.2024. He submits that, HPCL being a corporation was required to obtain the necessary management approvals before remitting the amount payable to the Arbitration and Conciliation Centre. Upon obtaining such approvals, HPCL made payment of sum of Rs.30,000/- by way of Demand Draft No.619666 dated 18.03.2024, which was submitted to the Centre on 28.03.2024. Thereafter, the signed copy of the arbitral award was received by HPCL on 22.04.2024. Since the petition under Section 34 of the A&C Act, 1996 was filed on 18.07.2024, the same was within the prescribed period of three months from the date of receipt of the signed copy of the award.
9.2. His submission is that Sub-section (3) of Section 34 of the A & C Act, 1996 only envisages the commencement of the limitation period from the date on which the signed copy was received. The provision neither contemplates nor permits consideration of any actions or inactions prior to the date of receipt of the award and as such, all the contentions taken by the petitioner could not have been considered by Section 34 Court nor by this Court.
9.3. In this regard, he relies upon decision of the Hon'ble Apex Court in Union of India v. Tecco Trichy Engineers & Contractors ((2005) 4 SCC 239) , more particularly para 8 thereof, which is reproduced hereunder for easy reference;
8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be “received” by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.
9.4. By relying on Union of India v. Tecco Trichy Engineers & Contractors, he submits that it is the delivery of the singed copy of the award which has the effect of conferring rights on the parties and it is that date which is required to be taken into consideration for proper calculation of the period under Sub-section (3) of Section 34 of the A & C Act, 1996.
9.5. He relies on the decision of the Hon'ble Apex Court in State of Maharashtra v. ARK Builders (P) Ltd ( (2011) 4 SCC 616) ., more particularly para 15 thereof, which is reproduced hereunder for easy reference;
15. The highlighted portion of the judgment extracted above, leaves no room for doubt that the period of limitation prescribed under Section 34(3) of the Act would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law.
9.6. By referring to State of Maharashtra v. ARK Builders (P) Ltd, his submission again is that the period of limitation prescribed under Sub-section (3) of Section 34 of the A & C Act, 1996 would start running only from the date a signed copy of the award is delivered to or received by the party making an application for setting aside an award under Sub-section (1) of Section 34 of the A & C Act, 1996.
9.7. He relies on the decision of this Court in Late Shivram Gujjal by his Legal Representatives & ors. vs. National Highway Authority of India & ors (WP No.105173 OF 2023 dt. 14.09.2023) , more particularly para 8 thereof, which is reproduced hereunder for easy reference;
8. The period of limitation prescribed under Section 34(3) of the Act would commence only from the date a signed copy of the award is delivered to/received by the party making an application for setting aside under Section 34(1) of the Act. Therefore, two factors highlighted are that the award needs to be signed by the learned Arbitrator and the certified copy thereof has to be delivered to the party to the arbitral proceedings, who propose to make an application to challenge it under Section 34(1) of the Act. The period of limitation prescribed under Section 34(1) of the Act would start running from the date a signed copy of the award is delivered to/received by the party
9.8. By relying on Late Shivram Gujjal by his Legal Representatives vs. National Highway Authority of India, his submission again is that the limitation prescribed under Sub-section (3) of Section 34 of the A & C Act, 1996 would only commence from the date a signed copy of the award is delivered or received by the party. He therefore submits that Section 34 of the A & C Act, 1996 has rightly considered these aspects and rejected the application filed by the petitioner.
9.9. On that ground, he submits that there is no requirement for this Court to intervene in the matter and that the above writ petition is required to be dismissed.
10. Heard Sri.Subhash Srinivasa Rangachar, learned counsel appearing for the petitioner and Sri.Pramod B., learned counsel appearing for HPCL. Perused papers.
11. In the light of the rival submissions, the following question arises for consideration:
"Whether, while computing the period of limitation under Sub-section (3) Section 34 of the Arbitration and Conciliation Act, 1996, the Court is required to take into consideration the delay attributable to the applicant in obtaining the signed copy of the arbitral award after the award had admittedly become ready for delivery?"
12. This Court answers the above point for consideration as under
13. The submissions advanced by Sri.Subhash Srinivasa Rangachar, learned counsel for the petitioner, which are set out in detail above, may be summarised as under:
13.1. The Arbitration and Conciliation Centre, Bengaluru, by its communication dated 15.02.2024 and its e-mail dated 16.02.2024, informed both parties in clear terms that the arbitral award had been passed on 15.02.2024 and that the signed copy could be collected on payment of the dues payable to the Centre, either in person or through a duly authorised representative carrying an authority letter and proof of identity.
13.2. These communications, read with Sub-section (5) of Section 31 and Section 39 of the A&C Act, Rules 28(6) and 32(5) of the Arbitration and Conciliation Centre Rules, 2012, and the decision of the Hon'ble Supreme Court in Benarsi Krishna Committee & Others v. Karmyogi Shelters Pvt. Ltd., [(2012) 9 SCC 496] cast an obligation upon each party to pay the dues and collect the signed award without delay.
13.3. When HPCL did not pay, the Centre issued a further communication calling upon both sides to deposit Rs.30,000/- each towards additional sitting fee and then collect the signed copy. The petitioner acted promptly, paid the amount and collected the signed copy on 05.03.2024, whereas HPCL paid only on 28.03.2024, issued an authorisation letter on 20.04.2024, and collected the signed copy on 22.04.2024.
13.4. Though HPCL physically collected the signed copy on 22.04.2024, its conduct before that date must be taken into account while computing limitation under Sub-section (3) of Section 34. The proviso allows only a further thirty days beyond three months, that too on an application showing sufficient cause, and no extension is permissible thereafter. The entire delay between 16.02.2024 and 22.04.2024 was solely attributable to HPCL, and HPCL cannot take advantage of its own delay.
13.5. Accepting HPCL's stand would allow any losing party to postpone limitation at its own convenience, defeating the object of speedy finality under the Act. The Section 34 petition filed on 18.07.2024 is hopelessly barred by limitation, the Commercial Court failed to consider this, and the petitioner, having no other efficacious remedy, has approached this Court under Articles 226 and 227 of the Constitution.
14. The submissions advanced by Sri.Pramod B., learned counsel for HPCL, which are set out in detail above, may be summarised as under:
14.1. There is no dispute that the award was pronounced on 15.02.2024 or about the e-mail dated 16.02.2024. HPCL, being a Corporation, had to obtain management approvals before remitting the amount. It paid Rs.30,000/- by Demand Draft No.619666 dated 18.03.2024, which was submitted to the Centre on 28.03.2024, received the signed copy on 22.04.2024, and filed the Section 34 petition on 18.07.2024, which was within three months from the date of receipt.
14.2. Sub-section (3) of Section 34 reckons limitation only from the date on which the signed copy is received. It neither contemplates nor permits any inquiry into acts or omissions prior to receipt. Therefore, neither the Section 34 Court nor this Court can look into the petitioner's contentions about the earlier delay.
14.3. In support, reliance is placed on Union of India v. Tecco Trichy Engineers & Contractors, particularly paragraph 8, to submit that delivery of the signed copy and its receipt by the party is the event that sets limitation running.
14.4. Reliance is also placed on State of Maharashtra v. ARK Builders (P) Ltd, particularly paragraph 15, to submit that limitation under Sub-section (3) of Section 34 starts only from the date a signed copy is delivered to or received by the party.
14.5. Reliance is further placed on Late Shivram Gujjal by his Legal Representatives & Others v. National Highway Authority of India & Others [WP No.105173 of 2023, dated 14.09.2023], particularly paragraph 8, to the same effect.
14.6. On this basis it is submitted that the Section 34 Court rightly rejected the petitioner's application and that no interference is warranted.
15. This Court has carefully considered the rival submissions and perused the record.
16. The material facts and the relevant dates are not in dispute. The arbitral award was pronounced on 15.02.2024. On 16.02.2024, the Arbitration and Conciliation Centre, Bengaluru, wrote to both parties informing them that the award had been passed, calling upon them to pay the outstanding dues to the Centre and thereafter collect the signed copy of the award. The petitioner paid the dues on 20.02.2024 and obtained the signed copy on 05.03.2024. HPCL, however, paid only on 28.03.2024; and though its demand draft bears the date 18.03.2024, it was presented to the Centre only on 28.03.2024 and was realised on 02.04.2024. HPCL thereafter wrote on 12.04.2024 asking for delivery of the Award, issued an authorisation letter only on 20.04.2024, and ultimately received the signed copy on 22.04.2024. The petition under Section 34 was filed on 18.07.2024.
17. At the outset, it is necessary to be clear about what is, and what is not, in controversy. There is no dispute that limitation under Sub-section (3) of Section 34 runs from the date on which a party receives the signed copy of the award. The dispute is not about limitation commencing from an unsigned copy, a photocopy, a draft award, or mere knowledge of the result. The real question is a narrower one, can a party postpone the very starting point of limitation by delaying compliance with procedural steps that lie entirely within its own hands, when the arbitral institution has already made the signed award ready and told the parties that it may be collected on payment of the dues? It is this specific situation, according to Sri.Subhash Srinivasa Rangachar, learned counsel for the petitioner, which none of the cited decisions had occasion to consider, that falls for determination.
18. The Arbitration and Conciliation Act, 1996 is a self-contained code meant to secure speedy resolution of disputes and early finality of arbitral awards. Sub-section (3) of Section 34 is one of the chief means by which Parliament has sought to achieve that object. Sub-section (3) of Section 34 reads as follows:
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
19. The proviso uses the words "but not thereafter". Those words have consistently been read as shutting out Section 5 of the Limitation Act, 1963. The period fixed by Sub-section (3) of Section 34 is therefore rigid, three months, extendable by at most thirty days on sufficient cause being shown, and not a day more. Any reading that allows the starting point of limitation to be pushed forward by the unilateral conduct of the very party who wishes to challenge the award would seriously weaken this scheme.
20. Sub-section (5) of Section 31 of the Act, which governs delivery of the award, provides that after the arbitral award is made, a signed copy shall be delivered to each party. This casts a duty on the Arbitral Tribunal to deliver a signed copy of the award to each party. It is the delivery of the signed copy, and its receipt by the party, that ordinarily sets limitation in motion. But the provision speaks of a two-sided act, delivery by the Tribunal and receipt by the party. It does not entitle a party to defeat that act by refusing or delaying its own side of it.
21. Section 39 of the Act recognises the arbitral tribunal's lien over the award for unpaid costs, and provides that the tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration. By reason of this lien, the Centre could not physically hand over the signed award until its dues were paid. But payment of those dues was entirely within HPCL's control. It follows that the inability to obtain the signed copy between 16.02.2024 and 28.03.2024 was not the doing of the Arbitral Tribunal or of the Centre; it was the doing of HPCL alone.
22. The communications dated 15.02.2024 and 16.02.2024 were not bare intimations that an award had been made. They stated in terms that the signed award was ready and could be collected at once on payment of the dues, personally or through an authorised representative carrying an authority letter and proof of identity. In other words, the arbitral institution had done everything on its part to effect delivery, subject only to the statutory lien under Section 39.
23. The three decisions relied upon by Sri.Pramod B. to contend that limitation can begin only on the date of actual receipt of the signed copy, and that anything happening before that date is irrelevant in the peculiar facts and circumstances.
24. In Union of India v. Tecco Trichy Engineers & Contractors [(2005) 4 SCC 239], the Hon'ble Supreme Court held, in paragraph 8, that delivery of the award under Sub-section (5) of Section 31 is a matter of substance and not mere formality, and that delivery by the Tribunal and receipt by the party sets several periods of limitation running, including that under Sub-section (3) of Section 34. This court respectfully accepts this principle. It is, however, of no assistance to HPCL. Union of India v. Tecco Trichy Engineers & Contractors addresses a delivery that depends on the Tribunal; it does not deal with a party who himself holds back the receipt by not doing what only he can do. The decision assumes a party willing to receive; it says nothing about a party who delays his own receipt.
25. In State of Maharashtra v. ARK Builders (P) Ltd [(2011) 4 SCC 616], the Hon'ble Supreme Court held, in paragraph 15, that where the law requires an award to be delivered in a particular manner and also fixes limitation for challenging it, limitation runs only from receipt in that prescribed manner. This too this court respectfully accepts. But it again presupposes that the party is ready to receive delivery in the manner prescribed. It does not lay down that a party may indefinitely defer the prescribed delivery by withholding the very payment on which delivery is conditioned. The principle governs the manner of delivery; it does not licence a self-created obstruction to it.
26. In Late Shivram Gujjal by his Legal Representatives & Others v. National Highway Authority of India & Others [WP No.105173 of 2023, dated 14.09.2023], a coordinate Bench of this Court held, in paragraph 8, to the same effect that limitation under sub-section (3) of Section 34 commences from the date the signed copy is delivered to or received by the party. For the same reasons, this decision does not advance HPCL's case. It states the general rule; it does not deal with a recipient who delays his own receipt.
27. The petitioner, for his part, relied on Benarsi Krishna Committee & Others v. Karmyogi Shelters Pvt. Ltd., [2012 9 SCC 496], in paragraph 15, the very decision referred to in the Centre's communications, for the proposition that the signed copy of the award must be delivered to and collected by the party itself. It cannot be read as permitting a party to sit back, delay collection, and then claim that limitation had not begun.
28. It will be seen that every one of these decisions proceeds on the footing that receipt depended on the Tribunal or the institution making delivery. None of them considered a case where the award had been made, the institution had told both parties it was ready, and the only thing standing in the way of receipt was the party's own failure to do what lay within its control. That is precisely the situation here. These decisions therefore lay down the general rule but do not govern the narrow question now before this Court.
29. HPCL seeks to explain the delay by saying that, as a Corporation, it needed management approvals before it could pay. Such internal administrative processes are matters entirely within HPCL's own domain. A litigant cannot manufacture a disability out of its own internal procedures and then rely on that very disability to gain a legal advantage. If this were allowed, the starting point of limitation would differ from litigant to litigant depending on its internal hierarchy, its administrative habits, or its financial approvals. Parliament could not have intended the commencement of limitation under Sub-section (3) of Section 34 to fluctuate with matters wholly internal to the party challenging the award.
30. Even on HPCL's own showing, the chronology tells its own tale. The demand draft is dated 18.03.2024, yet it was presented to the Centre only on 28.03.2024, a gap of ten days for which there is no explanation. After payment, the authorisation letter was issued only on 20.04.2024 and the copy collected on 22.04.2024, a further gap of nearly a month, again unexplained. HPCL has not and could not have pleaded that the Centre refused to hand over the signed copy at any time after payment, or that the award was otherwise unavailable, the centre having already communicated that the Award could be collected on payment of dues amounts. The delay, from beginning to end, was HPCL's own.
31. A helpful comparison may be drawn from the law relating to certified copies of judgments and orders. The time taken by the Court in preparing a certified copy is excluded, because the litigant has no control over it. But delay in applying for the copy, in paying the copying charges, deficit copying charges, or in collecting the copy after it is ready, is the litigant's own and is not excluded while computing limitation. The principle is simple, limitation cannot be stretched by delay that is entirely the applicant's own. The same reasoning applies where an arbitral institution has told the parties that the signed award is ready for collection, subject only to payment of the prescribed dues.
32. The requirement in Sub-section (5) of Section 31 that a signed copy be delivered does not mean that a party entitled to receive it may put off that delivery for as long as it likes by refusing or delaying steps within its own control. Once the Tribunal or the institution has made the signed award available and informed the parties, the statutory process cannot be frustrated by the deliberate inaction of a party.
33. The law draws a clear line between an inability to receive a document and an omission or refusal to receive it. Where receipt is prevented by the sender, limitation cannot begin. But where receipt is prevented only by the recipient's own failure to do an act within his own control, the inability is self-created, and a party cannot rely on a self-created disability to postpone a statutory consequence. The word "received" in Sub-section (3) of Section 34 cannot be read in a way that lets a litigant put off the start of limitation indefinitely by delaying procedural steps that are entirely his own to take.
34. Once both parties were informed on 16.02.2024 that the award had been made and could be collected on payment, every party wishing to keep alive a statutory remedy was bound to act with reasonable diligence. The petitioner's own conduct shows how readily the award could be obtained, he paid on 20.02.2024 and had the signed copy in hand by 05.03.2024. Nothing prevented HPCL from acting with the same promptness. No fixed number of days can be laid down for collecting a signed award; what is reasonable depends on the facts of each case. But where one party shows that the award could have been obtained within a short time by simply complying with the Centre's requirements, the other party's delay in paying and collecting indicates that the delay is self-induced.
35. The argument that HPCL had to make a separate request on 12.04.2024 for delivery does not improve its position. The communications of 15.02.2024 and 16.02.2024 had already told both parties that, on payment of the dues, the signed copy could be collected in person or through an authorised representative. Neither the Act nor the Rules of the Centre suggest that limitation stays suspended until some further request is made. The later request of 12.04.2024 cannot, therefore, push forward the commencement of limitation.
36. The maxim nullus commodum capere potest de injuria sua propria, that no person can take advantage of his own wrong, rests on sound public policy and applies squarely here. To accept HPCL's contention would be to reward its own delay and to let it gain a procedural advantage from its own default. Every law of limitation balances two public interests, the interest in allowing a litigant to pursue his remedy, and the interest in certainty and finality of adjudication. The Arbitration and Conciliation Act plainly leans towards the latter, by fixing a rigid period that cannot be extended beyond the additional thirty days.
37. If HPCL's contention were accepted, every unsuccessful party to an arbitration could postpone the start of limitation simply by delaying payment of the arbitral costs or by putting off collection of the signed award. The commencement of limitation under Sub-section (3) of Section 34 would then depend not on the statutory scheme but on the convenience and internal processes of the party wishing to challenge the award. That would defeat the very object of the Act, the early finality of arbitral awards, and could never have been intended by Parliament.
38. For these reasons, this court is unable to accept that the mere physical collection of the signed copy on 22.04.2024 must, whatever the surrounding facts, invariably mark the start of limitation. Such a proposition would let a litigant postpone limitation by his own inaction, and Sub-section (5) of Section 31 cannot be read so as to allow its mandate to be defeated by deliberate delay on the part of the recipient. The duty cast on the Tribunal under Sub-section (5) of Section 31 stood substantially discharged the moment the Centre informed both parties that the signed award had been made, that it was ready for delivery, and that all that remained was payment of the dues. What happened after that, the failure to pay promptly and to collect the award even after payment, was HPCL's own omission.
39. Accordingly, on the peculiar facts of this case, this court holds that HPCL cannot rely on its own default in delaying receipt of the signed award to enlarge the period fixed by Sub-section (3) of Section 34 of the Act. The later delay in physically collecting the signed copy, being wholly of HPCL's own making, cannot count in its favour while computing limitation under Sub-section (3) of Section 34 of the Act. This conclusion is confined to the peculiar facts of the present case, namely, that;
39.1. the award had admittedly been pronounced;
39.2. the Arbitration Centre had informed both parties that the signed award was ready for delivery;
39.3. the only impediment to delivery was payment of the outstanding arbitral dues;
39.4. such payment was entirely within the control of HPCL;
39.5. the petitioner demonstrated that the award was capable of immediate delivery by obtaining the signed copy on 05.03.2024; and
39.6. HPCL neither pleaded nor established that the Arbitration Centre had declined delivery of the signed award after compliance with the prescribed requirements.
40. Judged in this light, the order of the Commercial Court cannot be sustained. The Commercial Court proceeded solely on the footing that limitation began on the date HPCL physically collected the signed copy, without examining whether that receipt had been postponed entirely by HPCL's own conduct. It also failed to consider the combined effect of Sub- section (5) of Section 31, Sub-section (3) of Section 34 and Section 39 of the Act in the setting of these facts, and thereby allowed HPCL to gain a procedural advantage from its own inaction. The order therefore suffers from a material error of law.
41. Once the self-induced delay is left out of account, as it must be, the position is clear. The signed award was available for collection on payment of the dues from 16.02.2024, and the petitioner showed that it could be, and was, obtained by 05.03.2024. Reckoned from the date the award thus became available for collection, the outer limit of three months together with the further thirty days permitted by the proviso had expired well before 18.07.2024. The petition filed by HPCL under Section 34 on 18.07.2024 is, therefore, barred by limitation, and the application (I.A. No.I) raising that bar ought to have been allowed.
42. This Court answers the point raised by holding that - While computing the period of limitation under Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996, the Court is required to take into consideration the delay attributable to the applicant in obtaining the signed copy of the arbitral award after the award had admittedly become ready for delivery. Where the arbitral tribunal or the arbitral institution has made the signed award available and has informed the parties that it may be collected upon payment of the prescribed dues, a party cannot postpone the commencement of limitation by its own delay in complying with steps that are entirely within its control. Such self-induced delay must be excluded, and it cannot enlarge the rigid period fixed by Sub-section (3) of Section 34 of the Act. On the facts of this case, the delay between the award becoming available and its collection by HPCL on 22.04.2024 was wholly self-induced; the petition under Section 34 filed on 18.07.2024 is barred by limitation; and the order dated 08.01.2025 of the Commercial Court rejecting I.A. No.I suffers from a material error of law.
43. In the result and for the reasons recorded above, this Court passes the following:
ORDER
i. The writ petition is allowed.
ii. The order dated 08.01.2025 passed on I.A. No.I in Com.A.P. No.112/2024 by the LXXXIV Additional City Civil and Sessions Judge (CCH-85), Commercial Court, Bengaluru, is set aside.
iii. Consequently, I.A. No.I is allowed, and the application filed by HPCL under Section 34 of the Arbitration and Conciliation Act, 1996 in Com.A.P. No.112/2024 is held to be barred by limitation and stands dismissed.
iv. There shall be no order as to costs.
