Madras High CourtOSA(CAD)/106/2021dismissed with cost

S.K.C. Constructions v. Aishwarya Structural And

2021-11-08Honourable The Chief Justice,Honourable Mr Justice P.D.Audikesavalu3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.11.2021 CORAM :

THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU OSA (CAD) No.106 of 2021 S.K.C. Constructions, rep. by its Proprietor Ahil Mani, Previously having office at No.77, 4th Street, W-Block, Anna Nagar, Chennai-47 Presently residing at No.-48, Vasuki Nagar 1st Main Road, Kodungaiyur, Chennai - 600 118.

...

Appellant Vs.

M/s.Aishwarya Structural and M/s.Susmitha Decors, rep. by one of their Proprietor M.K.Thiyagarajan, Having office at No.11, Sannathi Street, Kamatchi Nagar, Kovilambakkam, Chennai - 600 100.

Respondent Prayer: Appeal filed under Section 13(1A) of the Commercial Courts Act, 2015 read with under Section 37 of the Arbitration and Conciliation Act, 1996 against the order dated 08.04.2021 made in O.P.No.573 of 2020 on the file of this Court. O.P.No.573/2020 : Filed this Court, to allow the above petition and set aside the exparte award passed in O.P.No.499/2015A.F.No.36/2016, dated 29.12.2017 by the Arbitrator and copy issued vide letter dated 23.08.2019.

For the Appellant : Mr.T.R.Rajagopalan Senior Counsel for Mr.S.Gopinathan

JUDGMENT

(Delivered by the Hon'ble Chief Justice) The appellant, who went unrepresented before the arbitral tribunal despite due notice, complains of the arbitration court disregarding three other grounds raised by the appellant herein apart from the primary ground that the appellant had not been served or given any effective notice to participate in the arbitral reference.

2. On the primary ground, the arbitration court held against the appellant herein. The court found that the records of the Arbitrator revealed that counsel appearing for the appellant herein appeared before the Arbitrator and the schedule of hearing was fixed by the minutes of the Arbitrator dated August 31, 2015. The court of first instance recorded that the dates were re-scheduled and counsel for the appellant herein signed the minutes of November 25, 2015. Several opportunities were granted thereafter, but the appellant failed to file its counter-affidavit for more than 18 months or so. The court was satisfied that the e-mail address to which communication were sent was the same e-mail ID that had been furnished by counsel for the appellant herein to the arbitral tribunal.

3. Further, the court found that immediately after the award was passed, a copy was sent through speed post on January 5, 2018 and the same was received by or on behalf of the appellant herein. The court found that the challenge to the arbitral award could not be entertained since the award was passed in 2017, a copy thereof had been dispatched on January 5, 2018 which was duly received by or on behalf of the appellant herein.

4. With respect, once the court found that the challenge under Section 34 of the Arbitration and Conciliation Act, 1996 was not within the statutorily ordained time-limit, the substance of the challenge need not have been addressed. Indeed, since the issue was of the violation of the principles of natural justice, the court, in its usual spirit of generosity, rendered a finding that the challenge on such count was completely baseless since the petitioner before such court had due notice of the schedule of the arbitral reference and deliberately chose not to file any counter-affidavit or be represented in the arbitration reference.

5. In the light of the decision rendered by the court of the first instance that the challenge to the arbitral award was carried beyond the permissible limit, the challenge should have been thrown out, without any discussion on merits. It really does not lie in the mouth of such a recalcitrant and laggard as

the appellant herein to suggest that the court ought to have gone into the other issues. Once a petition under Section 34 of the Act of 1996 is found to have been lodged beyond time, the merits of the challenge need not be addressed. There is no dispute - even no attempt to indicate otherwise - that the petition under Section 34 of the Act of 1996 was filed in court within the permissible time.

5. For the reasons aforesaid, OSA (CAD) No.106 of 2021 is dismissed with costs assessed at Rs.10,000/- which the appellant will pay to the Tamil Nadu State Legal Services Authority within a fortnight from date.

C.M.P.No.18248 of 2021 is closed.

Sd/- Assistant Registrar(CS-III) //True copy// Sub Assistant Registrar bbr To:

1. The Sub Assistant Registrar, Original Side, High Court of Madras.

2. The Secretary, Tamil Nadu State Legal Services Authority, High Court, Madras-600 104.

Copy To Ahil Mani, Proprietor, S.K.C. Constructions, Previously having office at No.77, 4th Street, W-Block, Anna Nagar, Chennai-47 Presently residing at No.-48, Vasuki Nagar 1st Main Road, Kodungaiyur, Chennai - 600 118.

OSA (CAD) No.106 of 2021 EV(CO) GMY(17/11/2021)