JUDGEMENT
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(1.)THIS petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, "the Act) has been filed by the petitioner assailing an award dated 10th May 2005. The respondent had taken preliminary objections regarding limitation and has stated that the petition was not maintainable in view of section 34 (3) of the Act, having been filed after the period of limitation as envisaged under the Act. The arguments on this issue have been heard from both parties.
(2.)THE arbitrator in this case was appointed under Section 11 (6) of the Act by the order of this Court in Arbitration Petition No. 254 of 2001 dated 2nd september 2004. In the order, the Court gave directions to both the parties to appear before the Arbitrator on 12th October 2004. The arbitrator was also given directions to dispose of the claim within four months of the first date of hearing. While claimant appeared before the Arbitrator on 12th October 2004, the petitioner herein did not appear before the Arbitrator on the date fixed by the Court and deliberately absented from appearing before the Arbitrator. Arbitrator, however, entered into the reference on 12 th October 2004 and issued notice to the petitioner on the address of the petitioner. The record shows that the notice came back with the report that the petitioner had left the given address of H-36, Sainik Farm. The respondent/claimant was directed to furnish current address of the petitioner (although it was the duty of the petitioner to inform his fresh address to the Arbitrator as well to the respondent ). The petitioner had not informed his changed address to the respondent or to the Arbitrator, however, respondent traced out the address of the petitioner and furnished the same to the Arbitrator whereby a fresh notice was sent to the petitioner at g-207, 13th Lane, Sainik Farm, New Delhi. Notice was sent by the Arbitrator by registered cover as well as by speed post. While the registered cover came back with a report of refusal, the notice through speed post was delivered at this address. The documents showing delivery of notice upon petitioner are on record of the Arbitrator. The petitioner even thereafter did not appear before the arbitrator and the Arbitrator was constrained to proceed ex parte and gave his award on 10th May 2005. After giving his award, the learned arbitrator sent a notice of the award to both the parties with a covering letter dated 10th May 2005 at the same address. The award sent to the petitioner came back to the arbitrator unclaimed. The claimant thereafter filed execution of the award. In the execution, the petitioner filed objections to execution under order 21 CPC and also sought stay of the execution. Subsequently, the petitioner filed this petition under Section 34 of the Act for setting aside the award.
(3.)COUNSEL for the petitioner has submitted that the petitioner was entitled to benefit of Section 14 of the Limitation Act and the time during which the petitioner was prosecuting objections against execution should be excluded while computing the time for filing the petition under Section 34 of arbitration and Conciliation Act, 1996. It is also submitted that the petitioner learnt about the award in October 2005 when the Bailiff came to the premises of the petitioner's mother for executing certain orders passed by the Court of additional District Judge. The petitioner engaged an advocate who filed an application under Order 21 Rule 46 CPC for stay of execution. The petitioner had been diligently prosecuting this application under Order 21 Rule 46. When the petitioner learnt that a petition under Section 34 was required to be filed, the counsel for the petitioner then filed a petition under Section 34 of the Act challenging ex parte award and the application under Order 21 Rule 46 was withdrawn on 25th February 2006. It is stated that delay in filing the application under Section 34 was because the advocates were on strike and the advocate of the petitioner did not file an application for condonation of delay. It is submitted that period between October, 2005 to February, 2006 be not counted under Section 14 of Limitation Act.
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