SMT. KRISHNAMMA v. THE ARBITRATOR CUM DEPUTY COMMISSIONER

judgment are that the appellant herein was the absolute owner of the immovable property bearing Sy.No.68/8 measuring

0.22.00 acres of land situated at Permannur Village by virtue of the registered sale deed dated 01.11.1962 registered as document No.455/1962 in the office of the Sub-Registrar, Mangalore. It is the case of the appellant that after purchasing the said property, she made vast improvements by spending - 3 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 huge amount of money. Out of 22 cents of land, 15 cents of land has been acquired for the purpose of widening of the National Highway. The land was acquired for widening National Highway by fixing Rs.1,50,000/- per cent as the compensation payable for all lands compulsorily acquired in Permannnuru Village.

3. The appellant being aggrieved by the compensation granted by Special Land Acquisition Officer, filed a claim petition before the learned Arbitrator under Section 3G(5) of NH Act, 1996. The Arbitrator considering the averments made in the claim petition, passed the award dated 11.04.2017 enhancing the compensation amount to Rs. 1,75,000/-. Feeling aggrieved by the impugned award passed by the learned Arbitrator, the appellant herein approached the Trial Court under Section 34 of the A and C Act of 1996. The case of the appellant/plaintiff was that the impugned award passed by the learned Arbitrator is opposed to law and is unsustainable.

4. On the other hand, the NHA has justified the award passed by the learned Arbitrator. The said petition was filed along with an application under Section 34(3) of A & C Act - 4 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 seeking condonation of delay of 65 days in filing the suit. The case of the plaintiff in support of the application for the delay was that the award dated 11.04.2017 was not communicated to her. It is stated, she came to know about the impugned award passed by the learned Arbitrator in the last week of August, 2017. Immediately thereafter, she obtained the certified copy of the same and filed the suit on 21.09.2017. It is a conceded case of the plaintiff that the suit in terms of prescribed limitation otherwise had expired on 11.08.2017. It is conceded that the suit under Section 34 of the Act was filed on

21.09.2017 with a delay of 65 days. The Trial Court while rejecting the plea of condonation of delay of 65 days has in paragraphs 16 to 18 stated as under. “16. The plaintiff contended that the respondent No.1 neither passed the award in her presence nor after giving notice. Even though the impugned award has been passed on 11.4.2017, it was not communicated for her and she came to know about the impugned order in the last week of August 2017. Immediately she obtained the certified copy of the orders and proceeded to file the suit. Due to the said fact she was not able to file the suit well in time. Further there is no delay in filing the suit. If there is any delay it is neither - 5 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 intentional nor deliberate. But it is due to the bonafide reason.

17. In view of the specific case of the plaintiff regarding the non-service of the copy of the impugned award, notice was issued to the defendant No.1 to appear before the court and to say about the service of copy of the award to the appellant. On receiving said notice, Sri.Jagadish FDA, Office the Deputy Commissioner, D.K. Mangalore (Arbitration Section) appeared before the court and sought for time to verify and report submitting that the orders will be dispatched over post. At his request time was granted till 17.6.2019. On 17.6.2019 Sri.Jagadish FDA, Office the Deputy Commissioner, D.K. Mangalore (Arbitration Section) appeared before the court and submitted report dated 15.6.2019 with copy of Dispatch Register to show that the award has been dispatched to the appellant through ordinary post on 18.4.2017. The extract of the dispatch register of the office of the defendant No.1 produced before the court along with the report dated

15.6.2019 shows that the copy of the impugned orders

11.4.2017 passed ARB(2).NH.LAQ.CR.50/2016-17 dispatched on 18.4.2017 as per the reference in Sl.No.82 of the extract. The plaintiff filed the suit giving her residential address in the cause title of the suit. Even the proceedings file placed before the court and the entire court records shows that - 6 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 the copy of the impugned award has been dispatched to the plaintiff on 18.4.2017 to the very same address referred in the cause title of the suit. Hence the contention of the plaintiff that she has not been served with copy of the impugned award and she came to know about the impugned award in the last week of August, 2017 cannot be accepted.

18. The wordings ‘but not thereafter’ in the proviso to the Section 34(3) of A & C Act, 1996, is mandatory in nature. In view of the specific provision contemplated U/s.34(3) of A & C Act, Sec.5 of the Limitation Act does not become applicable to the proceedings U/s 34 of A & C Act. The express bar in the proviso of Section 34(3) of A & C Act does not authorize the court to entertain the suit filed after lapse of 120 days from the date of receipt of the copy of the arbitral award. The proviso to Section 34(3) of A & C Act gives discretion to the court to condone the delay on showing sufficient cause only for a period of 30 days. The said discretion cannot be extended beyond the period of 30 days. The words ‘but not thereafter’ makes it exclusively clear. In view of the decision of Hon’ble Supreme Court of India in the case of Anil Kumar Jinabai Patil(deceasd) through L.Rs. Vs. Pravinchandra Jinabhai Patel and Ors Civil Appeal No.3313/2018 arising out of SLP(C) No.15668/2012 and Civil Appeal No.3314/2018 arising out of - 7 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 SLP(C) No.15741/2012 dated 27.3.2018, also it is held that, the application filed U/s.34 of the A& C Act is barred by Limitation, after holding detail discussion regarding Section 34 of A & C Act. From all these discussions and in view of the decision referred above, I proceed to answer point No.1 in the negative.”

5. The submission of the learned counsel for the appellant is that the learned Arbitrator after hearing the parties has not fixed the date for the pronouncement of the award. According to her, the learned Arbitrator has not send the copy of the award dated 11.04.2017 to the appellant herein in the manner it is required to be sent. Unless, the same is sent in the manner stipulated in A and C Act, 1996, the service of the award is not complete. She in support of her submission has also referred to the provisions of General Clauses Act, to state, the service of award shall be complete when the process contemplated is undertaken. The Appellant having received the award in the last week of August, 2017 has filed the suit on

21.09.2017 which according to her is within time and the Trial Court could not have dismissed the suit on the ground of limitation. She in support of her submissions has relied upon the following Judgments: - 8 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020

1. JSC Ispat Pvt. Ltd. And Others Vs. HBD Financial Services Ltd. (2018 SCC OnLine Bom 538);

2. Union of India Vs. Tecco Trichy Engineers & Contractors (2005)4 Supreme Court Cases 239;

3. The State of Maharashtra & Ors. Vs. M/s. Ark Builders Pvt. Ltd. (Civil Appeal No.2152/2011)

6. Having noted the submissions made, at the outset, it may be stated, there is no specific averment made as to when exactly the appellant had received the copy of the award dated

11.04.2017, except stating it was received in the last week of August, 2017. It is a fact that the appellant did file a suit under Section 34 of the Act of 1996 which means the plaintiff being in receipt of copy of the award had filed the suit. Though the date of receipt of the copy of the award has not been mentioned but the fact that the appellant had filed an application seeking condonation of delay of 65 days in filing the suit also shows that the delay has occurred beyond the period of three months and thirty days, in filing the suit from the date of the award. So in that sense, the learned counsel for the appellant cannot plead that the appellant has not received the award on time and/or as per the process contemplated in A and C Act, 1996. Even otherwise, the plea that the appellant has - 9 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 received the award in the last week of August, 2017 and not before that, also cannot be accepted. The case of the appellant is, the petition under Section 34 was filed within time on

21.09.2017, w.e.f., last week of August, 2017. It is also the case of the appellant as contended by her counsel that, the application has been filed on a safer side to obviate any objection of not filing the petition within time. We note, the stand of the appellant that she has received the award in the last week of August, 2017 was not accepted by the Court below, as can be seen from paragraph-17 of the impugned order. We cannot fathom the reason, if the award was received in the last week of August, 2017, (from whom and how the same was received, has not been disclosed) why did the appellant the application seeking condonation of delay at all as there is no delay in filing the suit on 21.09.2017 w.e.f., August, 2017. In any case, the Arbitrator's Office has proved the dispatch of award on 18-04-2017. It can be presumed that the postal envelop would has reached the addressee within a week, maximum. In the absence of the Appellant showing from whom/how, the award was received by her in the last week of August, - 10 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 2017, the stand of the appellant that, the award was received after four months, in the last week of August 2017, cannot be accepted.

7. Insofar as the reliance placed by the learned counsel for the appellant on the judgment of the Supreme Court in the case of Tecco Trichy Engineers & Contractors (supra) in support of her contention that the delivery of arbitral award under sub-section (5) of Section 31 has to be received by the party is concerned, there is no dispute on the said proposition as advanced, but it is not the case of the appellant that she has not received the copy of the award. According to her, she had received the copy of the award in the last week of August, 2017. She has unable to prove, from whom/how the award was received by her only in the last week of August,

2017. We have already rejected this stand taken by the appellant in the appeal. Having received the copy of the award, the said judgment has no applicability to the facts of this case. Even the judgment of the Bombay High Court in the case of JSC Ispat Pvt. Ltd. (supra) is concerned, the same also has no applicability in view of our finding above. Similar is - 11 - NC: 2025:KHC:6606-DB MFA No. 1348 of 2020 in respect of Judgment in the case of the State of Maharastra and others (supra).

8. We are of the view, the Trial Court is right in dismissing the petition on the ground that it cannot condone the delay beyond three months and thirty days and dismissed the petition. Hence, we also dismiss this appeal filed by the appellant being without merit. No costs. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (S RACHAIAH) JUDGE JS List No.: 1 Sl No.: 35