Interim Order 13

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF PULASTYA PRAMACHALA, DISTRICT
JUDGE (COMMERCIAL COURT-01), PATIALA HOUSE
COURTS, NEW DELHI
OMP (I) (COMM.) 13/2024
In the matter of: -
Railway Administration
...Petitioner
Versus
M/s Hind Terminals Pvt. Ltd.
...Respondent
Date of pronouncement of the order : 26.08.2025
ORDER
1. Vide this order, I shall dispose off the application under Section
34 (3) of Arbitration and Conciliation Act filed by the petitioner.
2. Briefly, it is stated that the impugned award was passed by ld.
Arbitral Tribunal on 28.08.2023. The award was sent by the
Arbitrator to AGM, Baroda House, however, the appellant
concerned office address is Senior Division Commercial
Manager, North Western Railway, Jaipur. It is averred that till
date no such award is received by the official of petitioner. It is
also averred that the impugned arbitral award was received by
the petitioner’s office on 19.09.2023 through e-dak, which was
sent by the AGM Baroda House, New Delhi. After receipt of the
arbitral award dated 28.08.2023, legal opinion was sought from
the counsel, who represented the department before Ld. Sole
Arbitrator. It was received on 20.09.2023. After receipt of the
legal opinion, the complete record was sent to the Law Branch.
The legal opinion was put before the higher authorities and after
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receipt of the directions, the matter was assigned to the
Government counsel for challenging the impugned award.
Thereafter, on receipt of draft petition the same was sent to
competent authorities for vetting and after receiving the same,
the present petition was filed with the delay of 20 days.
3. In reply filed by the respondent, it is averred that the objection
has been filed beyond a period of 120 days from the date of
receipt of the impugned award and condonation of such delay is
impermissible under law. It is averred that the impugned award
28.08.2023 was received by the petitioner on 30.08.2203 and the
limitation for filing the petition started from 31.08.2023.
Accordingly, 120 days ended on 31.11.2023, which is beyond the
statutory period time given under Section 34 (3) of the Act.
4. It is further averred that the Concession Agreement dated
04.10.2007, was executed by General Manager, Northern
Railways on behalf of the petitioner. Thus, it is prayed that the
application be dismissed.
5. Ld. counsel for the petitioner argued that in the present case, the
General Manager of Indian Railways acting on behalf of the
President of India executed the agreement dated 04.01.2007 with
the respondent i.e. M/s Hind Terminal. The entire work under the
said agreement was required to be carried out under the
supervision of the North Western Railway (NWR). The officials
of North Western Railway possess the knowledge of the work
and the Concession Agreement dated 04.01.2007.
6. It was submitted that in context of a large organization as Indian
Railways, copy of arbitral award must have been sent to the
North Western Railway (NWR) as the concerned officials
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possessed complete knowledge of the Concession Agreement and
failure to send the impugned arbitral award to North Western
Railways constituted a procedural lapse in respect to guideline
provided by the Supreme Court in catena of judgments in regard
to Arbitration and Conciliation Act 1996. Ld. Counsel submitted
that Hon’ble Supreme Court while dealing with date for the
purposes of calculating limitation and the issue who exactly
constitutes “a party” in the context of monolithic organization,
such as the Government, has given guidelines. He referred to
UOI vs. Tecco Trichy Engineers and Constractors, (2005) 4
Supreme Court Cases 239 and Benarsi Krishna Committee and
Ors. vs. Karmyogi Shelters Pvt. Ltd. (2012) 9 SCC 496. In UOI
vs. Tecco Trichy Engineers and Constractors, Hon’ble Supreme
Court has held as under: -
“The Chief Engineer is directly concerned with the Arbitration,
as the subject matter of Arbitration relates to the department of
the Chief Engineer and he has direct knowledge of the arbitral
proceedings and the question involved before the arbitrator. The
General Manager of the Railways has only referred the matter for
arbitration as required under the contract. He cannot be said to be
aware of the question involved in the arbitration nor the factual
aspect in detail, on the basis of which the arbitral tribunal had
decided the issue before it unless they are all brought to his
notice by the officer dealing with that arbitration and who is in-
charge of those proceedings. Therefore, in our opinion, service of
arbitral award on the General Manager by way of receipt in his
inwards office cannot be taken to be sufficient notice so as to
activate the Department to take appropriate steps in respect of
and in regard to the award passed by the arbitrators to constitute
starting point of limitation for the purposes of Section 34(3) of
the Act. The service of notice on the Chief Engineer on
19.3.2001 would be the starting point of limitation to challenge
the award in the Court”.
7. Written submissions were filed on behalf of respondent on the
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lines of reply so filed by the respondent. It was argued that the
Concession Agreement dated 04.01.2007 by virtue of which the
Arbitration was commenced, was executed between the
respondent and the General Manager, Northern Railways. It was
submitted that the agreement specifically provided the definition
of Railway Administration for the purpose of Dispute Resolution
in the Agreement as “Railway Administration” means the
“General Manager of the Zonal Railway having jurisdiction
under the Railway Act 1989, except that for the purpose of
Dispute Resolution, Railway Administrations shall mean the
relevant Railway Administration which has executed the
Concession Agreement”. It was submitted that Concession
Agreement was signed by H.C. Punia CCM(S&R)/Northern
Railway for and on behalf of President of India through Railway
Administration. In support of his submissions, ld. Counsel for the
respondent relied upon
Simplex Infrastructure Ltd. vs. Union of
India (2019)2 SCC 455 and National Highways Authority of
India vs. Bhageeratha Engineering Ltd., 2011 DHC 5398. In
National Highways Authority, in para 13 it was held as under: -
“The memo of parties in the arbitral proceedings, as is evident
from the first page of the main Award as well as the amended
Award, indicates the address of the NHAI to be its corporate
office at New Delhi. As rightly pointed out by learned counsel
for the Respondent the memo of parties in the present petition as
well as the affidavit in support of the petition clearly indicates
the address of the NHAI to be its corporate office at New Delhi.
In the absence of the NHAI informing the Tribunal that the
proper address for dispatch of all communications and in
particular certified copies of the Award was its project office at
Salem, the Tribunal would have had no means to know that the
copies of the Award ought not to have been sent to NHAI s	‟
corporate office at New Delhi. There is an obligation on the
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parties to a dispute to inform the forum in which such
proceedings are pending of the correct address to which copies of
the Award or proceedings should be sent. The Arbitral Tribunal
is not required to make enquiries as to the proper address of the
party for the purposes of communication. It has to go by the
address that appears in the memo of parties or cause title of the
case before it. In the present case, therefore, the Arbitral Tribunal
fully complied with the requirement of Section 31 (5) of the Act
when it sent the Award as well as the amended Award to the
corporate office of NHAI at New Delhi.”
8. In para 18 of this case, while taking into consideration the
judgment of Tecco Trichy Engineers (Supra), it was held that: -
“The facts of the decision in Tecco Trichy Engineers and
Contractors were that the Award in that case was sent to the
General Manager, Southern Railway on 12th March 2001. It was
received by the Chief Engineer who was also the Chief Project
Manager on 19th March 2001. It was opined by the Supreme
Court that for the purposes of Section 34(3) the limitation began
to run only from the date on which the Chief Engineer received a
copy of the Award passed by the Tribunal. Since the Railways
was a large organization containing divisional heads, it was only
the departmental head, which in that case was the Chief
Engineer, who was likely to know whether the arbitral Award
was adverse to the departmental interests. He was the person
directly connected with and involved in the proceedings.
However, as will be noticed, the facts in the present case are
different.”
Appreciation of Arguments, Law & Fact
9. A plain reading of sub-section (3) along with the proviso to
Section 34 of the 1996 Act, refers that application for setting
aside the award on the grounds mentioned in sub-section (2) of
Section 34 could be made by a party within three months of
passing the award and the said period can only be extended for a
further period of 30 days on showing sufficient cause and not
thereafter. The use of the words “but not thereafter” in the
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proviso makes it clear that the extension cannot be beyond thirty
days.
10. In the judgment passed in the case of Union of India v. Popular
Construction Co. (2001) 8 SCC 470, it was held that: -
“12. As far as the language of Section 34 of the 1996 Act is
concerned, the crucial words are 'but not thereafter' used in the
proviso to sub-section (3). In our opinion, 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. No principle of interpretation would justify such a result.”
11. Admittedly, in the present case, the copy of award was sent to
AGM, Baroda House and it was sent to Senior Divisional
Commercial Manager, North Western Railway, Jaipur, which
was received by it on 19.09.2023 through e-Dak. Perusal of
record shows that in the statement of claim so filed by the
petitioner respondent was described as: Railway Administration
through Northern Railway through its General Manager, Baroda
House, New Delhi as per Concession Agreement dated
04.01.2007. As per Concession Agreement “Railway
Administration” means the General Manager of the Zonal
Railway having jurisdiction under the Railway Act 1989, except
that for the purpose of Dispute Resolution, Railway
Administrations shall mean the relevant Railway Administration
which has executed the Concession Agreement. The same was
signed by H.C. Punia CCM(S&R)/Northern Railway for and on
behalf of President of India through Railway Administration.
12. In the written submissions of respondent (para3.3), it is wrongly
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mentioned that petitioner on 18.11.2021, during the proceedings
before Hon’ble Delhi High Court in Arb. No.48/2020 counsel for
petitioner accepted before the Court that GM, Northern Railway
was the executing authority of the Concession Agreement.
Perusal of order dt. 18.11.2021 as passed by Hon'ble High Court
in aforesaid proceedings, would show that ld. Counsel appearing
for the petitioner herein, submitted before the court that the
subject contract had been transferred to North Western Railways.
Though, it is true that there is no document on the record to show
if the petitioner had filed any document in this regard with prayer
to take on record the address of North Western Railways in
substitution of GM, Northern Railways.
13. Delhi High Court in the case of National Highways Authority
(supra) distinguished the judgment passed in the case of Tecco
Trichy (supra) on the grounds of different set of facts. In Tecco
Trichy case, Supreme Court observed that in that particular case,
“
the Chief Engineer had signed the agreement on behalf of the
Union of India entered into with the respondent. In the arbitral
proceedings the Chief Engineer represented the Union of India
and the notices, during proceedings of the arbitration, were
served on the Chief Engineer. Even the arbitral award clearly
mentions that the Union of India is represented by the Deputy
Chief Engineer/Gauge Conversion, Chennai. The Chief Engineer
is directly concerned with the arbitration, as the subject matter of
arbitration relates to the department of the Chief Engineer and he
has direct knowledge of the arbitral proceedings and the question
involved before the arbitrator.”
14. In the present case, though award in question does not show the
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description of person representing the Railway Administration,
but on the first page of the award referring to statement of claim,
it is mentioned that “
in the statement of claim it was claimed that
General Manager of Northern Railway and General Manager of
North-Western Railway were notified vide letter dated
10.09.2019 about existence of disputes and differences under the
Concession Agreement.” This narration in the award goes on to
show that General Manager North-Western Railways was shown
to be involved in the matter even by the claimant (respondent
herein). The other documents which were filed along with claim
before ld. Arbitrator include the communications between the
parties. The notice dated 10.06.2019 was sent by respondent to
GM, Northern Railway as well as GM, North-Western Railway,
Jaipur. Apart from that, other communications of the past from
the respondent to the petitioner, show that the respondent herein
had been communicating with Sr. DCM, Jaipur Division, North-
Western Railway, Jaipur. Thus, it is not the case that officials of
North-Western Railway took over this matter after passing of the
award. Rather, the communications sent by respondent before
Arbitral proceedings establish that he had been communicating
with officials of North-Western Railway, Jaipur. In the
arbitration proceedings, the reply to the claim of the respondent
was also filed by DCM, North-Western Railway, Jaipur.
15. If I analyse these facts on the parameters of above-mentioned
observations made by Hon'ble Supreme Court in the case of
Tecco Trichy (supra), then it is beyond any doubt that for all
practical purposes it was the office of North-Western Railway,
Jaipur which had been contesting the claim during the arbitration
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proceedings. Just because respondent in his statement of claim
described the petitioner as Railway Administration, GM,
Northern Railway, it would not mean that it was office of GM,
Northern Railways, which was participating to defend Railways
in the arbitration proceedings. Concession Agreement was signed
on behalf of GM, Northern Railway, still the fact remains that
Railways was actually being represented by the office of GM,
North-Western Railway, Jaipur, during the arbitration
proceedings. In that situation, if judgment passed by Hon'ble
Supreme Court in the case of Tecco Trichy (supra) is followed in
true sprite, then it is to be held that it would be date of receipt of
award in the office of GM, North-Western Railway, Jaipur,
which would be the relevant date to count the limitation. Said
date is stated to be 19.09.2023 without any dispute from the side
of respondent. The document placed on the record also shows
same date of e-dak, which is the date on forwarding letter from
NRHQ, Baroda House to CCM, North-Western Railway, Jaipur.
Vide this letter, the award received from ld. Arbitrator was
forwarded to CCM, North-Western Railway for taking further
necessary action. The period of 90 days if counted from
19.09.2023, lapsed on 19.12.2023. Section 34(3) of the Act
provides scope for extension of another 30 days, which would
have lapsed on 18.01.2024. Present petition was filed online on
09.01.2024 and physically on 11.01.2024. Thus, it was filed
within maximum period of 120 days.
16. The given reason for such delay is time taken to obtain legal
advise and to prepare draft of the petition. Since the petition was
finally filed within maximum period of 120 days, I deem it fit to
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condone this delay. The judgment passed by Hon'ble High Court
of Delhi in the case of Union of India v. Sanoj Kumar,
MANU/DE/2443/2024 as relied upon by ld. counsel for
respondent, dealt with a different fact situation, wherein it was
pleaded that limitation would start from date when the concerned
officer received the legal advise and derived the authority to file
the application. That plea was negated by the court. In the present
case, fact is totally different. Hence, aforesaid judgment has no
application. In view of my foregoing discussions and
observations, application filed by petitioner thereby seeking
condonation of delay, is allowed.
17. Respondent is given opportunity to file reply to the main
objection before next date of hearing after supplying advance
copy of the same to the opposite counsel.
Pronounced in the (PULASTYA PRAMACHALA)
Open Court on this District Judge (Commercial Court)-01,
26th day of August, 2025 Patiala House Court, New Delhi
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