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Judgment
Subhro Kamal Mukherjee, J.—By the order impugned dated January 18, 2011, learned trial Judge rejected the application filed under sub-section (2) of Section 34 of the Arbitration and Conciliation Act, 1996 (''the Act'' for short), as barred by limitation. Learned advocate for the appellant submits with reference to the statements in the application under Section 34 of the Act, that the copy of the award was received by the plaintiff-appellant on August 31, 2009. The application under Section 34 was filed on November 30, 2009. Therefore, he submits that the said application under Section 34 of the Act was filed within ninety days as prescribed under sub-section (3) of Section 34 of the Act.
There was a written objection to the said application by the respondent. In the writ objection, it is stated that the award was passed on May 18, 2009 and the copy of the award was made available on June 10, 2009.
Our attention was drawn to an endorsement, that a copy of the award was sent to the parties by the Arbitrator.
In this case, the specific stand of the plaintiff-appellant was, although the award was passed on May 18, 2009, the copy of the award was received by the appellant only on August 31, 2009. As against that, there is a specific statement in the written objection that the order was made available on June 10, 2009. It was for the respondent to establish that the copy of the award was actually received by the appellant on June 10, 2009.
Mr. Ajesh Kumar, learned advocate for respondent No. 1 relies upon a decision of the Supreme Court of India reported in Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, . The decision is distinguishable. There was material on record to show that, copy of the award was forwarded to the parties by the registered post with acknowledgment due and the postal cover was returned with the postal endorsement "refused". In the interest of justice, the Apex Court observed that, it was the duty of the party claiming that the award was not received by him to establish that he actually did not refuse to accept the award.
In this case, that was a specific statement in the application under Section 34 of the Act is that the copy of the award was received only on August 31, 2009. Nothing was produced to show that the award was received by the appellant prior to August 31, 2009.
The language of sub-section (3) of Section 34 of the Act is that, the limitation starts from the date of receipt of the arbitral award. When it is specifically stated by the appellant in the application that the award was received on August 31, 2009 and when the suit was instituted on November 30, 2009, the learned trial Judge was not right, particularly, in the absence of any evidence being let-in by the respondent that the copy of the award was made available for the respondent on June 10, 2009.
We are of the opinion mat, the learned trial Judge ought not to have held that the application under Section 34 of the Act was barred by limitation. The order impugned is, therefore, set aside. The suit was dismissed, as the application filed under Section 34 of the said Act was dismissed, as barred by limitation. As we hold that the application was not barred, we restore the suit to its original file and number. We direct the learned trial judge to dispose of the suit on merits and in accordance with law within three months from the date of communication of this order.