Ramesh Chand vs Gambit Leasing and finance Pvt. Ltd. and Others

Valmiki J Mehta, J.—The challenge by means of this appeal u/s 37 of the Arbitration and Conciliation Act, 1996, (in short "the Act") is to the impugned order dated 16.4.2010, which has dismissed the objections of the Appellant/objector.

The only ground of challenge to the Award was that the Appellant was not served in the arbitration proceedings. This aspect has been dealt with by the trial court in para 7 of the impugned order, which reads as under:

Ld. counsel for the objector has vehemently submitted that the notice of appointment of receiver was not issued to him. On this score arbitration proceedings perused carefully. The demand notice dated 24.3.06 attached with the proceedings and the same has been exhibited as CW1/20.The same was sent through the Respondent through courier. The receipt of the courier were brought on record as Ex.CW1/21 to 27. The original undelivered envelope brought on record as Ex.CW1/34 with findings "No response". The notice of appointment of Arbitrator was also issued to the objector on his residential address as well as his official address. The notice issued on the residential address was received back with the report unclaimed and the notice issued at the official address was duly served which reveals from the AD card attached with the arbitration proceedings. Then another notice was issued by the Ld. Arbitrator Ms. Rashmi to the effect that she has been appointed as Arbitrator in the proceedings and directed the objector to appear on 10.7.06 at 5 pm. This notice was issued through registered AD which was duly served as reveals from the AD card received back. But the Respondent again has not appeared in court. The copy of the arbitration award was also sent to the objector through registered post at his official address which were also served which reveals from the AD card attached with the arbitration proceedings.The entire proceedings reveals that Respondent was issued the notice qua the appointment of Arbitrator, notice for joining arbitration proceedings but the objector has not joined the arbitration proceedings despite service. Even the copy of the award was duly sent and was duly received which reveals from the AD card attached with the file. In these circumstances the plea taken by the objector that he was having no notice of the arbitration proceedings is found to be baseless and after thought. (underlining added)

In my opinion, the aforesaid findings clearly show that at the correct addresses of the Appellant all the notices were sent. First notice was the notice of demand. Thereafter, the notice which was sent, was the notice of appointment of the arbitrator. Thereafter, notice was sent by the Arbitrator herself for appearance and finally notice with respect to the passing of the Award was also given.

I, therefore, do not find any illegality or perversity in the impugned judgment. Learned Counsel for the Appellant very passionately sought to argue that the AD cards were fabricated. In order to appreciate his contention I went through the AD cards. Though, the AD cards do not contain any stamp of postal authority but the AD cards are accompanied by appropriate postal receipts of the postal department of having issued these notices. In the light of such facts, I am not inclined to interfere with the impugned order and the Award which shows service at four different stages upon the Appellant, more so, when the address of the Appellant has rightly been given in the notice.

At this stage, I may refer to Section 3 of the Act which states that in fact, notices are sufficiently served, if they are sent at the last known address to the party in arbitration. As I have already stated above, the notices were correctly addressed. Finally, learned Counsel for the Appellant sought to argue that it is possible that even after making the postal receipts, the actual envelopes could have been taken by the Respondent No. 1 company. I find his argument totally farfetched, more so, because there is no averment in the objection petition that the postal receipts are fabricated because the registered envelopes in fact were taken back by Respondent no1 company. This argument is an argument of desperation and needs to be rejected as such. Lastly, learned Counsel for the Appellant sought to argue that he has made most of the payment to the Respondent No. 1. If that be so, and the Appellant is able to establish payments, which are made to the Respondent No. 1 Finance Company then, obviously, the Finance Company would give necessary credits with respect to the amounts which are alleged to be paid to the Respondent no1 company.

There is therefore no merit in the appeal which is accordingly dismissed leaving the parties to bear their own costs. Trial court record be set back.