Certified Copy Without Arbitrators' Signatures Is Not a 'Signed Copy' Under Arbitration Act: Calcutta High Court

The Calcutta High Court has ruled that a certified copy of an arbitral award carrying only a third-party certification that the original was signed, without reproducing the arbitrators' signatures, does not amount to delivery of a "signed copy" under Section 31(5) of the Arbitration and Conciliation Act, 1996.

Without such delivery, the limitation period for challenging the award under Section 34 does not begin, making an execution petition for its enforcement premature.

A single bench of Justice Gaurang Kanth observed that Section 31(5) requires parties to receive a copy that itself bears the arbitrators' signatures so they can verify that the award validly emanates from the arbitral tribunal.

"A certificate by a third party, however authorised, that an unseen original was signed cannot be equated with a copy that itself bears the signatures, since the very object of Section31(5), as explained in Tecco Trichy Engineers (supra), is to permit eachparty to satisfy itself, from the document delivered to it, that the award emanates validly from the Tribunal”, the court ruled.

The court dismissed as premature CE Testing Company Private Limited's execution petition seeking enforcement of an arbitral award, under which it claimed more than ₹4.63 crore had become payable against Madhucon Projects Limited and another.

It also gave both sides liberty to approach the West Bengal Micro and Small Scale Enterprises Facilitation Council for a duly signed copy of the award or a certified copy reproducing the arbitrators' signatures.

CE Testing supplies shell and auger equipment and provides allied services, including geological mapping, seismic refraction surveys and borehole drilling.

Between 2011 and 2012, Madhucon Projects awarded the company five contracts for railway, road and tunnel projects, including the Jiribam–Tipul new railway line, the four-laning of NH-34 between Barasat and Krishnagar, and the four-laning of NH-31 between Rajauli and Bakhtiyarpur in Bihar. CE Testing claimed it completed the work but remained unpaid to the extent of ₹1,11,39,966.

It invoked the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 before the Facilitation Council. Conciliation failed, following which the dispute proceeded to arbitration. The council eventually passed an award in CE Testing's favour on November 10, 2020.

On December 16, 2021, CE Testing forwarded Madhucon a chartered accountant's certificate stating that ₹4,63,61,459 had become payable under the award, comprising the principal amount and interest. It later filed an execution petition before the high court seeking enforcement under Section 36 of the Arbitration Act.

CE Testing argued that the copy supplied by the Facilitation Council was sufficient because the council retained the original signed award and every page of the copy had been authenticated by an officer of the West Bengal MSME Directorate.

Madhucon argued that an administrative certification could not substitute the arbitrators' signatures. Since no signed copy had been delivered as required under the Arbitration Act, it contended, the limitation period for filing a challenge under Section 34 had never commenced.

Examining the award, the court found that the copy served on the parties contained only a typed "Sd/-" against the names of the chairperson and members of the council. It also carried an attestation by A.K. Ghosh, Deputy Director (SSE), MSME Directorate, Government of West Bengal, but did not reproduce the arbitrators' actual signatures.

The court observed, "What has been certified by Mr. A.K. Ghosh, Deputy Director (SSE), MSME Directorate, Government of West Bengal, is therefore not a photocopy carrying the signatures themselves, but a typed/printed document bearing only the certifying officer's own attestation that the original was signed."

It ruled that the West Bengal Micro and Small Scale Enterprises Facilitation Council Rules, 2016, do not dispense with the Arbitration Act's requirement that parties receive an award bearing the arbitrators' signatures.

“There is nothing in the said Rules of 2016 which permits substitution of the mandatory signatures of the Arbitrators by administrative certification alone,” the court observed.

Holding that Section 31(5) had not been complied with, the court ruled that the limitation period for filing a Section 34 challenge had not commenced. As a result, enforcement under Section 36 could not proceed.

It observed, "Where mandatory requirement of Section 31(5) has not been complied with bydelivery of a signed copy of the award. Consequently, it cannot be said thatthe arbitral proceedings have terminated in the eye of law. Section 36(1) ofthe Arbitration and Conciliation Act, 1996 permits enforcement of anaward only after the time for making an application to set aside the awardunder Section 34 has expired."

Since the execution petition itself was premature, the court left open Madhucon's objection on territorial jurisdiction. It granted both sides liberty to approach the Facilitation Council for a duly signed copy of the award, or a certified copy reproducing the arbitrators' signatures, before pursuing their remedies in accordance with the law.

For Petitioner (CE Testing Company Private Limited): Advocates Shiv Shankar Banerjee, Arijita Ghosh, Siddhartha Chamria, Adhip Narayan Banerjee.

For Respondent (Madhucon Projects Limited): Advocates Anubhav Sinha, Shirsho Banerjee.