Kotak Mahindra Bank Ltd. vs Ronit Nirman Private Limited & Ors

The Court : Learned counsel appearing on behalf of the award-holder has relied upon a reported Division Bench judgment of this Court being Magma Fincorp Limited vs. Ashok Kumar & Ors. dated 13th September, 2017, reported in 2018 (1) CHN (Cal) 391 where the Hon'ble Division Bench had considered the aspect of service of award upon the judgment-debtor. In deciding the said application, the Hon'ble Division Bench has referred to Clause 9(b) of the arbitration agreement between the parties in the said proceeding, Section 114 of the Indian Evidence Act, Section 3 of the Arbitration and Conciliation Act and Chapter VI of the Indian Post Office Act, 1898. Similar clause as that of 9(b) that was considered by the Hon'ble Division Bench is present in the instant arbitration agreement. The records revealed that the envelopes said to contain the award was forwarded by the Arbitral Tribunal by a letter dated 10th February, 2012. The envelope was addressed to the respondents at the addresses mentioned in the arbitration agreement and proper stamps were affixed thereon. The Arbitrator has also paid postal charges by affixing prepaid adhesive postage stamps and the postal article duly put in by registered post in the manner provided in Chapter VI of the Indian Post Office Act, 1898. The postal envelop said to contain the said award was despatched on 13th February, 2012. Hence, having regard to the fact that the award was sent to the last known address of the judgment debtors, it shall be presumed that the award has been duly served upon the judgment debtors. The time to challenge the award has, in the meantime, expired. It is submitted on behalf of the petitioner that the award is not under challenge.

Under such circumstances, it shall be presumed that the award has been duly served upon the judgment-debtors. In view of the Hon'ble Division Bench judgment and having regard to the factual position as discussed above, in my view, the award-holder is able to demonstrate service of the award upon the judgment-debtors.

The directors of judgment-debtor nos. 1 and 2 and the judgment-debtor no.3 are directed to file their individual affidavits of assets in Form No.16A of Appendix-E of the Code of Civil Procedure within four weeks from date of communication of the order, failing which warrants of arrest may be issued against the judgment-debtors.

The matter stands adjourned till February 6, 2019.

The petitioner shall communicate this order along with a copy of the application upon the judgment-debtors within a week from date and shall file affidavit of service on the adjourned date.