KOCHHAR CONSTRUCTION WORKS V.

DELHI DEVELOPMENT
AUTHORITY & ANR.

Manmohan Sarin, J. (Oral):— By this order, I would be disposing the application

filed by the petitioner under order xii r 6 cpc as well as the objection of the petitioner
that the objections namely IA No. 4145/95 filed by the respondent/DDA are barred
by limitation. The petitioner's prayer accordingly is that the objections filed by the
respondent/DDA be dismissed, i.e IA 4141/95 be dismissed as barred by limitation
and the amount of claims in respect of which the petitioner has not preferred any
objections, be paid to the petitioner.

2. The events leading to the filing of the present application may be briefly
recapitulated:

The arbitrator Mr. S.C Kaushik on 27th May, 1994 made and published his award.
It is the petitioner's case that a copy of the award was sent by the arbitrator to both
the parties on 31st May, 1994. The petitioner filed an application under Section 14
of the Arbitration Act, 1940, on 29th June, 1994. The arbitrator in pursuance to the
notice, filed the award along with arbitral record on 6th September, 1994, endorsing
copy of the same to the respondent/DDA. In any case, the Court directed the issuance
of notice of filing of award to the respondent inviting objections if any. The case of
the petitioner is that as per the report of the process server dated 10th October, 1994,
notice of the filing of the award was issued for service to the respondent/DDA, but
the receipt clerk/DDA refused to accept the same on the ground that copy of the
petition/award was not annexed thereto. In the meanwhile, petitioner had also
preferred objections to the award vide IA No. 9008/94. Notice of these objections
was served on the respondent/DDA on 25th January, 1995, when the counsel for
DDA was also present in Court. In the event, the respondent/DDA filed objections
to the award vide IA No. 4145/95 on 22nd February, 1994.
3. Learned counsel for the petitioner, Mr. Bindra persuasively attempted to urge that
the respondent/DDA was fully aware of the making and publishing of the award, the
same having been sent to it earlier. He further submits that it was not obligatory to
tender either the copy of the petition or copy of the award alongn with the notice of
filling of the award. Refusal to accept such a notice as per the report of the process
server amounted to service and the respondent/DDA having failed to file objections
within time, the award was liable to be made rule of the Court as against the DDA,
subject to the decision on petitioner's objections.

Learned counsel for the petitioner in support of his submission relied on Shri Inder
Khanna & Sons v. Union of India reported at 1991 (1) ALR 411, wherein a learned
Single Judge of this Court held as under:—

“On perusal of the order of this court dated 18th November, 1989, and of the record
of the case, in the order, it was observed by the learned Judge that the respondent
had not received notice of filing of award on 1st June, 1989, for want of enclosures.
No enclosures were enclosed or mentioned in the notice. It was merely a notice of
filing of the award and the proceedings. Therefore according to the learned Judge
this amounted to service on the respondent, as the respondent refused to accept the
notice of filing of the award. I am in entire agreement with such finding as along
with notice of filing of the award no enclosures mentioned in the notice are required
to be sent to the parties for service. What is required to be done is due notice to the
parties about the filing of the award in the court. Since statutory period for filing
objections had expired and no objections were filed, in those circumstances the
award dated 26th October, 1988 made by Shri J.P Singhal was rightly made rule of
the court and decree was passed in terms thereof and award was made a part of the
decree.
4. Mr. Bindra further submitted that in the instant case the respondent have not even
moved an application for condonation of delay. He also placed reliance on Kanishka
Builders v. Union of India and another reported at 1990 (s) ALR 198, Narain Dass
R. Israni v. Union of India 1992 (1) 405 and M/S. Rish Prabhat… v. Delhi
Development Authority…. reported at A.I.R 1995 Delhi 9 to oppose condonation
of delay since no ground had either been set up or existed.

5. Learned counsel for the respondent does not dispute the factual matrix of the case
as set out, except the tendering and service of notice at the counter of the DDA.
Reply to the application under Order 12 Rule 6 is stated to have been filed in the
registry. The original was not available on record. Learned counsel for respondent
has therefore tendered a report, copy of the same for reference of the Court as well
as of the opposite counsel. The original be traced and placed on record. Learned
counsel urges that no credence ought to have been given to the report of the process
server, which was not supported by any other independent witness. Learned counsel
submits that the although notice of the objections filed by the petitioner i.e IA No.
9008/94 was served on the respondent on 16th December, 1994, the same was
without a copy of the objections petition and accordingly the respondent could not
co-relate the same with the present award. Upon appearing in Court on 25th January,
1995 the petitioner become aware of the full details of the case and filed its
objections on 22nd February, 1995. It is thus urged that the objections filed are
within time.

6. Having considered the submissions made by the learned counsel for the petitioner
and the Authorities relied upon him and having heard the learned counsel for the
respondent, I am of the view, that in these facts and circumstances, it cannot be held
that the respondent had been duly served. Even if the petitioner's version of refusal
by the clerk of the DDA is accepted, what has to be seen is whether the notice that
was tendered provided sufficient particulars to the respondent to enable it to file the
objections?

In the instant case the notice sought to be served on the DDA is as under:—

IN THE HIGH COURT OF DELHI AT NEW DELHI

In the matter of Suit No. 1455 of 1994, Application No……..of………under M/s.

Kochhar Construction Works…..petitioners.;

Versus

Delhi Development Authority and another…..respondents

Delhi Development Authority, service to be affected through the Executive

Engineer, Eastern Division No. 8, D.D.A, New Patparganj Depot, Mandawali
Fazalpur, Delhi-110092.

WHEREAS Sh. S.C Kaushal the Arbitrator has filed the award dated 27.5.94
delivered by the said Arbitrator with arbitration proceedings in Court in disputes
inter-se you respondent and petitioner for being made a rule of the Court. The suit is
fixed for hearing on 30.11.1994 at 11.00 a.m before the Joint Registrar of this Court.

You are hereby called upon to file objections, if any, in accordance with law to the
said award within 30 days of the service of this notice.

Take notice that your failure to do so as stated above would entail the consequences
enjoined by law.

Dated this 23rd day of September 1994.

Superintendent (O) for Registrar.

8. It would be seen from the notice sought to be tendered that though it mentioned
the Executive Engineer of the concerned Division, unfortunately, it made no
reference to the construction work in relation to which the award had been made. A
Division Bench of our court had the occasion to consider this aspect in Union of
India v. Surender Kumarreported at (61) 1996 DLT 42 (DB). The Division Bench
taking note of the existence of the bureaucratic hierarchy as well as the numerous
divisions and departments which exist in the Government, formulated guidelines and
gave directions which may be usefully reproduced. Although, it was a case where
the notice has been sent simply to the Union of India, the observations made by the
Division Bench are of relevance:—

“In the instant case the notice does not specify the name of the work, the division or
department to which the matter pertained or even the contract number. It is needless
to point out that Ministry of Urban Development has a very large area of operation
covering several departments of the Government including C.P.W.D, which itself
has several divisions spread all over the country. Therefore, unless the notice of
filing of the award gives the details of the arbitration matter in which award is given,
it cannot be considered as a proper notice in accordance with law. Besides, it was
not enough to direct notice of the filing of the award to the Secretary of the
Government of India, Ministry of Urban Development particularly when the notice
failed to disclose the material particulars of the matter. In the circumstances, the
notice ought to have been sent to the Executive Engineer, who was the Engineer-in-
charge of the work, was dealing with the matter.”

“Having regard to the aforesaid difficulties, we are of the opinion that wherever an
Arbitrator renders an award in a matter which concerns the Central Government, a
notice should not only be directed to the Secretary of the concerned Ministry but
also to the concerned officer who dealt with the matter on behalf of the Union of
India before the Arbitrator. The notice of the filing of the award must specify the
details relating to the project with regard to which the arbitration was conducted. For
this purpose, the party filing the application for directing the Arbitrator to file the
award or asking the Court to make the award a rule of the Court should specify the
name of project and the officer incharge of the same in the cause title of the case so
that while issuing notice of the filing of the award the Registry could mention the
necessary details of the matter. If these formalities are complied with there will be
no scope then for urging the violation of principles of natural justice or for urging
that the notice was not in accordance with law.”

9. I find that in the present case also the name of the construction work to enable co-
relation with the award in question had not been mentioned. The notice as issued,
therefore, did not meet the requirements as set out by the Division Bench in its
decision. Moreover, in the instant case the respondent is also disputing very factum
of service. In these circumstances the Authorities cited by the petitioner would be of
no avail and the petitioner cannot take any advantage of the same.

10. Accordingly, I hold that the notice, which was sought to be tendered for service
was not complete and did not meet the requirements of details required to be given
in the notice, inviting objections on filing of the award, as set out by the Division
Bench. Accordingly, the application IA 4145/. 96 under Order 12 Rule 6 of the
Code of Civil Procedure is dismissed and the plea of the petitioners that the
objections filed by the respondent are bared by limitation, is rejected.

List the objections of both the parties and the suit for disposal on 24th February,
2000.