In 2018 SCC OnLine Del 10825 DB in A.G Aerovision Electronics Pvt. Ltd. & Ors. Vs Tata Capital Financial Services Ltd., the Hon’ble High Court at Delhi – Decided on Section 31(5) of the Arbitration and Conciliation Act.
Section 31 (5) reads “After the arbitral award is made, a signed copy shall be delivered to each party”.
It was held that the words “delivered” used in Section 31(5) vis-à-vis the word “received” used in Section 34(3) of the Act, cannot invite punctilious interpretation as to frustrate the very intent and purpose of the Statute by a party, who has right from the very beginning, been adopting all kinds of dilatory tactics to avoid service in the arbitral proceedings and on passing of an ex-parte award, have evaded delivery/receipt of the award. Yet, in the same breath, it was being insisted that the period of limitation available for instituting a petition under Section 34 of the Act in respect of the award, cannot be stated to have commenced till a signed copy thereof is actually delivered on them. Where an ex-parte award was published by the Arbitral Tribunal on conclusion of the arbitral proceedings, the only manner in which the signed copy of the same could have been delivered/served on the appellants, was through post/courier. For the purpose of service, Section 3 of the Act prescribes that any written communication is deemed to have been received if it is delivered to the addressee at the place of business/habitual residence/mailing address. Once the signed copy of the award was dispatched by the learned Arbitrator to the parties at their last known place of business/habitual residence/mailing address, which can be demonstrated by providing “a record of the attempt to deliver it”, the same would be sufficient to draw an inference that they are deemed to have been served. It is not as if the Arbitral Tribunal was expected to physically serve/deliver the arbitral award on the appellants, particularly, when they elected to keep away from the arbitral proceedings, resulting in passing of an ex-parte award.
The presumption arising under Section 114 of the Evidence Act and Section 27 of the General Clauses Act would come into play if there is no sufficient material on record to establish that several attempts were made to deliver the signed copy of the arbitral award.
It was expressed by the Court that if the view, that till a signed copy of the arbitral award is delivered on a party, the limitation period prescribed under Section 34(3) of the Act of 1996 does not commence for making an application under Section 34(1) for setting aside the award, is accepted without looking at the fact situation in a given case, ( in the given case the attempts to serve was predominantly returned as unclaimed) it will give a licence to dishonest litigants to adopt all kinds of devious tactics to evade receiving a signed copy of the award and then claiming that the same was not “delivered” and therefore, the period of limitation cannot commence for filing a petition under Section 34(3) of the Act. If such a plea is accepted, then no beneficiary under an award would ever be able to reap its fruits by applying for its execution and enforcement.